State v. Michael Adkins ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1998 FILED
July 9, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CR-00381
) Cecil Crowson, Jr.
Appellee, ) Appellate C ourt Clerk
)
) SHELBY COUNTY
VS. )
) HON. JOHN P. COLTON, JR.
MICHAEL J. ADKINS, ) JUDGE
)
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
MICH AEL J . GAT LIN JOHN KNOX WALKUP
P.O. Box 27331 Attorney General and Reporter
Memphis, TN 38167-0331
JANIS L. TURNER
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
JAMES M. LAMMEY
Assistant District Attorney General
Criminal Justice Complex, Ste. 301
201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Michael J. Adkins, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appella te Proce dure. He entered a plea of g uilty to
the offense o f voluntary m anslau ghter. The agreed sentence for this Class C
felony was three years, the minim um in the ran ge for a standard offender. The
manner of service of th e sente nce wa s left to the discretion of the trial judge. The
judge ordered that six months of the sentence be served in the local workhouse,
followed by six months of intensive probation, with the balance of the sentence
to be served on regular probation. The Defe ndan t appe als from th e trial jud ge’s
denial of fu ll probation . We affirm the ju dgme nt of the trial co urt.
On the nig ht the vic tim was killed, the Defendant had been drinking beer
and smoking marijuana. He was in the company of several other individuals.
One of the other individuals had purchased what was supposedly LSD from the
victim. The LSD turned out to be either counterfeit or “bad” and the Defendant
and three o ther ind ividuals went to the victim’s residence to get a refund of the
purchase price. While there, one of the other individuals “pistol-whipped” the
victim and then shot him in the head and killed him. The pistol used in the killing
had originally belonged to the Defendant, but he testified that he was in the
process of selling it to the individual who did the shooting.
All four individuals were indicted on a charg e of second degree m urder.
The Defendant who was the “trigger man” pleaded guilty to second degree
murder and received a fifteen year sentence. The Defendant and his other two
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codefendan ts pleaded guilty to voluntary manslaughter. The recommended
sentence for the two code fendants wh o pleaded g uilty to voluntary manslaughter
was six years. The recommended sentence for the defendant was three years.
The trial judge conducted a sentencing hearing during which the S tate
recommended that the Defe ndan t’s sentence be served on probation. The trial
judge declined to follow the State’s recommendation in full and instead ordered
that the Defendant serve six months of his sentence in the local workh ouse. It
is from the order of th e trial court denying full probation that the Defendant
appeals.
When an accused challenges the length, range, or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial cour t are corre ct.
Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is ?conditioned upon
the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1991 ).
In conducting a de novo review of a se ntenc e, this court must consider: (a)
the evidenc e, if any, rece ived at the tr ial and the sentencing hearing; (b) the
presentence report; (c) the principles of senten cing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
that the de fenda nt ma de on his own be half; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,
-210; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
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If our review reflects that the trial court followed the statutory sentencing
procedure, that the trial court imposed a lawful sentence after having given due
conside ration and proper weight to the factors and principles set out under the
sentencing law, and that the trial court’s findings of fact are adequately supported
by the record, then we may not modify the sen tence even if we would have
preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991 ).
A defen dant w ho “is a n esp ecially mitigated or standard offender convicted
of a Class C, D or E felony is presumed to be a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” Tenn.
Code Ann. § 40-3 5-102(6). Ou r sentencing law also provides that “convicted
felons com mitting the m ost se vere o ffense s, pos sess ing crim inal his tories
evincing a clear disregard for the laws and morals of society, and evincing failure
of past efforts at rehabilitation shall be given first priority regarding sentencing
involving incarceration.” Id. § 40-35-102(5). Thus, a defendant sentenced to
eight years or less who is not an offender for who m inc arcera tion is a priority is
presumed eligible for alternative sentencing unless sufficient evidence rebuts the
presumption. However, the act does not pro vide tha t all offenders who meet the
criteria are entitled to such relief; rather, it requires that sentencing issues be
determined by the facts and circumstances presented in each case. See State
v. Taylor, 744 S.W .2d 919 , 922 (T enn. C rim. App . 1987).
Additionally, the principles of sentencing reflect that the sentence shou ld
be no greater than that deserved for the offense committed and should be the
least severe me asure necessary to achieve the purposes for which the sentence
is imposed. Tenn. Code Ann. § 40-35-103(3)-(4). The court should also consider
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the poten tial for rehabilitation or treatment of the defendant in determining the
senten ce alterna tive. Id. § 40-35 -103(5).
Because the Defendant was a sta ndard offender convicted of a Class C
felony, he was presumed to be a favorable candidate for an alternative
sentencing option. The trial judge gave the Def enda nt the b enefit o f this
presumption, sentencing him to split confinement. See id. § 40-35-104(c)(5). The
Defendant seeks the mo re favorab le alternative of total prob ation. See id. § 40-
35-104(c)(3). As we have stated, the Defendant has the burden of establishing
suitab ility for full probation, even tho ugh he is en titled to the statutory
presumption of alternative senten cing. See State v. Bingham, 910 S.W.2d 448,
455 (Tenn. Crim. App. 1995). There is no “bright line rule” for determining when
a defend ant is entitled to full proba tion. Id. at 456. A trial jud ge is vested with a
great deal of discretion on the issue of probatio n. Facto rs to be conside red are
whether probation will serve the ends of justice and the best interest of both the
public and the Defendant, the nature and circumstances of the crime, the
Defendant’s potential fo r rehab ilitation, w hethe r full prob ation w ould u nduly
deprec iate the seriousness of the offense, and w hether full probation w ould serve
the nee d to provid e an effec tive deterre nt. See id., at 456.
The presentence report reflects that the Defendant was almost nineteen
years old at the time of the offense. At the time of sentencing he was single and
lived with his mother, for whom he provided some assistance and support. He
did not graduate from high school but had obtained his GED. His employment
record was good. He had no criminal record as an adult and no significant
juvenile record. H e reported that he began using alcohol at about the age of
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twelve and had also used marijuana, cocaine, and LSD. At the sentencing
hearing he tes tified tha t it had been over 2½ years since he had used any illegal
drugs. He stated that he had no intentions of killing the victim and did not know
that his codefe ndant w as going to do so. He stated that because of this incident
he had changed his life and had become a very religious person who was active
in his chu rch. He h ad sup port from mem bers of h is church .
In assessing the Defendant’s sentence, the trial judge expressed his
concern over the nature and circumstances of the offense -- spec ifically, tha t this
killing was related to a d rug transaction. It is clear from the record that the
reason the defendants approached the victim was because they thought the
victim had sold them poor quality or counterfeit LSD. The court also noted that
a death was involved and that a firearm was used to commit the crime. The
judge also stated that he did not believe the Defendant showed true remorse for
what he had done. We again point out that the gun used to commit the killing
initially belonged to the Defendant, although he testified that the “trigger-man”
was bu ying it from h im and had ac tually poss essed it for two or thre e week s.
Trial judge s are tra ditiona lly vested with broad discre tionary powe rs in
sentencing matters. As we have stated, the Defendant has the burden of
establishing suitability for full probation, even though he is entitled to the statutory
presumption of alternative sentencing. Appellate courts should not place trial
judges in a judicial straight-jacket on sentencing matters, and we should be
reluctant to interfere with their traditional discretionary powers. Moten v. State,
559 S.W. 770, 773 (Tenn. 1977). The trial court is in a much better position to
assess a defendant’s credibility, feelings of remorse, and potential for
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rehabilitation than an appellate court can determine from the record. From this
record, we cannot conclude that the trial judg e erred or abu sed h is discr etion in
ordering the Defe ndant to serve a p ortion of his sentence in confinement. The
judgment of the trial court is affirmed.
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DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
JOE. G. RILEY, JUDGE
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