State of Tennessee v. David Clinton York ( 2004 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs January 27, 2004
    STATE OF TENNESSEE v. DAVID CLINTON YORK
    Direct Appeal from the Criminal Court for Clay County
    No. 4028    Lillie Ann Sells, Judge
    No. M2003-00525-CCA-R3-CD - Filed May 3, 2004
    The defendant, David Clinton York, an inmate in the Clay County Jail, pled guilty to felony escape
    and was sentenced as a Range III, persistent offender to five years in the Department of Correction.
    On appeal, he argues that the trial court erred in determining that he was a persistent offender, in
    denying alternative sentencing, and in applying the enhancement and mitigating factors. Following
    our review, we affirm the judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
    W. WEDEMEYER , J., joined.
    Michael R. Giaimo, Livingston, Tennessee, for the appellant, David Clinton York.
    Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
    William Edward Gibson, District Attorney General; and John A. Moore, Assistant District Attorney
    General, for the appellee, State of Tennessee.
    OPINION
    FACTS
    At the defendant’s initial sentencing hearing held on September 3, 2002, the State related
    what its proof would have been had the case gone to trial:
    [O]n the date of the offense, August 31, 2001, [the defendant] was
    being incarcerated, had not made bond for a charge of aggravated
    assault, two charges of aggravated assault. . . . Which had occurred
    several days prior to August 31st, 2001. While being an inmate at the
    Clay County Jail, while [the defendant] was an inmate, the jail’s
    cook, Mr. Emerson Wilson, began serving lunch one day around
    noontime. In order to do that, he takes for the prisoners who are
    under lockdown, takes a tray or cart back through the holding cell to
    deliver the different, to different persons.
    While he was back there, [the defendant] was able to be out
    of his cell, he walked down the way there, out through this single
    door to get outside of the holding area, through a door there at the
    side of the jail and out.
    An investigation revealed that he was gone and they began
    looking for him immediately and he was located about a week later
    by Deputy Bean and another deputy . . . in a location out in the
    county, in Clay County. Sheriff Rhoten would testify that he had not
    given him permission, Sheriff Rhoten of Clay County, he had not
    given him permission to leave. That’s basically what the state proof
    would show.
    Michael Newport of the Tennessee Board of Probation and Parole testified that he prepared
    the defendant’s presentence report from information he received from the Clay County Sheriff’s
    Department, the District Attorney General’s case file, and the Clay County Circuit Court Clerk’s
    Office. He also interviewed Deputy Bean of the Clay County Sheriff’s Department. As to the
    defendant’s prior convictions, Newport said that the defendant had three convictions for receiving
    stolen property over $100 committed on January 1, 1987, in Monroe County, Kentucky, Circuit
    Court Case Nos. 87CR005, 87CR006, and 87CR007. The defendant also had a fourth conviction,
    in Monroe County, Kentucky, Circuit Court Case No. 87CR008, for receiving stolen property over
    $100, with that offense occurring on January 17, 1987. Copies of the four indictments, as well as
    a certified copy of the judgment entered on May 27, 1987, for these offenses were admitted into
    evidence. Newport said that the defendant also had convictions in the United States District Court,
    Western District of Kentucky, for three counts of unlawful transportation of stolen firearms and two
    counts of sale and disposal of stolen firearms. According to copies of the federal indictments, which
    were admitted into evidence along with a certified copy of the judgment for these offenses, the
    offense dates for the three counts of unlawful transportation of stolen firearms were December 1986,
    December 24, 1986, and January 17, 1987, while the offense dates for the two counts of sale and
    disposal of stolen firearms were December 1986 and December 24, 1986.
    Newport testified his investigation further revealed that the defendant had been convicted in
    Polk County, Arkansas, Circuit Court Case No. CR-74-59 of grand larceny, with the offense
    occurring on November 10, 1974.1 Newport said that, according to federal probation office records,
    the defendant had used an alias, Randy Combee, in the past. Newport also identified certified copies
    of judgments from the Polk County, Arkansas, Circuit Court in Case Nos. CR-74-61 and CR-74-62
    1
    W e note that Newport said “November 10th, 1984,” when testifying; however, according to the indictment
    which was admitted into evidence, the offense date was November 10, 1974.
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    wherein the defendant had pled guilty to burglary and grand larceny in each case, with the offenses
    occurring on November 20, 1974, and November 15, 1974, respectively. According to the certified
    copies of the judgments and the indictments for Polk County, Arkansas, Circuit Court Case Nos. CR-
    74-63 and CR-74-64, which were admitted into evidence as well, the defendant was convicted of
    burglary and grand larceny in each case, with all of the offenses occurring on November 15, 1974.
    Additionally, Newport identified a certified judgment and indictment from the Polk County,
    Arkansas, Circuit Court in Case No. CR-75-11, wherein the defendant had pled guilty to escape from
    jail, with the offense occurring on December 20, 1974. With the exception of the judgment in Case
    No. CR-74-62, which listed the defendant as “David Clinton York, alias Randy Combee,” all of the
    Polk County, Arkansas, Circuit Court judgments listed the defendant as “Randy Combee.”
    Newport also identified a certified judgment and indictment from Polk County, Florida,
    Circuit Court Case No. CF74-1331 showing that the defendant had been convicted of rape, with that
    offense occurring in June 1974. Newport said that his investigation revealed that the defendant was
    on federal parole at the time he committed the instant offense and that he was acquitted of the
    charges for which he was being held at the time he escaped. Newport acknowledged that the drug
    test he administered to the defendant was “clean” and that most of the defendant’s prior convictions
    occurred over twenty-five years ago.
    Burton Putman, the defendant’s federal probation officer, testified that the defendant had
    been convicted of three counts of unlawful transportation of stolen firearms and two counts of sale
    and disposal of stolen firearms into interstate commerce on August 18, 1987, and had received a total
    sentence of twenty years. The defendant was in federal custody from August 1987 until May 19,
    2000, when he was paroled. During his supervision of the defendant’s parole, Putman discovered
    that the defendant had used an alias, Randy Combee. Putman identified a Kentucky federal court
    indictment that listed the defendant as “David Clinton York, a/k/a Randy Combee.” Putman also
    believed that the Randy Combee named in the Arkansas judgments was the same person as the
    defendant. Putman said that the defendant was on federal parole on August 31, 2001, when he
    committed the instant offense.
    On cross-examination, Putman acknowledged that only one of the Arkansas judgments listed
    the defendant as “David Clinton York, alias Randy Combee” while the others listed him as “Randy
    Combee.” He said he never asked the defendant if he had used that particular alias “because that was
    done way before [his] involvement with [the defendant].” The defendant was frequently tested for
    drugs while under Putman’s parole supervision, and no illegal substances were ever detected.
    Putman said that a parole violation warrant was issued “following a DUI [the defendant] received
    in the State of Kentucky in June of 2001. And then it was amended to include those charges that he
    was eventually acquitted of in Clay County and now has been amended again to include the felony
    escape.” Asked by the court if he had reviewed the defendant’s prior criminal history with him,
    Putman replied, “No . . . [t]hat would have been done by an officer in my capacity in Bowling Green,
    Kentucky who wrote the pre-sentence report in 1987.” In response to the court’s inquiry as to
    whether the defendant’s convictions under the name of Randy Combee had been used in federal
    court to enhance his sentence, Putman said, “As far as the enhancement . . . I’m not sure at that time.
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    That would have been pre-guideline, federal guideline. About that time is when the guidelines came
    into being. So he was an old case, an[] old guidelines case.” Putman said that a presentence report,
    which would have included the defendant’s entire criminal history, had been prepared, but he did
    not bring a copy with him to court. Putman then identified a federal presentence report handed to
    him by the prosecutor and acknowledged that the defendant’s Polk County, Arkansas, convictions
    were included in the report. Putman said that, because the Arkansas judgments were a part of the
    federal presentence report, it was likely that the court considered those convictions when sentencing
    the defendant.
    Because the State sought to have the defendant classified as a career offender, the trial court
    continued the sentencing hearing to a later date to allow the State time to gather additional proof as
    to whether the defendant and Randy Combee were the same person. At the continuation of the
    hearing held on November 25, 2002, the State informed the court that it had been unable to obtain
    additional information regarding the defendant’s Arkansas convictions under the name of Randy
    Combee due to the age of those convictions. The State then elected to proceed to have the defendant
    classified as a Range III offender, rather than a career offender. At the conclusion of the hearing, the
    trial court sentenced the defendant as a Range III offender to five years in the Department of
    Correction. Subsequently, on December 4, 2002, the trial court entered written findings of fact
    regarding the defendant’s sentence.
    ANALYSIS
    Standard of Review
    When an accused challenges the length and manner of service of a sentence, it is the duty of
    this court to conduct a de novo review on the record with a presumption that “the determinations
    made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).
    This presumption is “conditioned upon the affirmative showing in the record that the trial court
    considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 
    823 S.W.2d 166
    , 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached
    by the trial court in sentencing the accused or to the determinations made by the trial court which are
    predicated upon uncontroverted facts. State v. Butler, 
    900 S.W.2d 305
    , 311 (Tenn. Crim. App.
    1994); State v. Smith, 
    891 S.W.2d 922
    , 929 (Tenn. Crim. App. 1994); State v. Bonestel, 
    871 S.W.2d 163
    , 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 
    29 S.W.3d 1
    , 9
    (Tenn. 2000). However, this court is required to give great weight to the trial court’s determination
    of controverted facts as the trial court's determination of these facts is predicated upon the witnesses’
    demeanor and appearance when testifying.
    In conducting a de novo review of a sentence, this court must consider (a) any evidence
    received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
    sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
    characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
    the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
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    or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 
    63 S.W.3d 400
    , 411 (Tenn.
    Crim. App. 2001).
    The party challenging the sentence imposed by the trial court has the burden of establishing
    that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
    Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
    imposed by the trial court is erroneous.
    I. Persistent Offender Classification
    The defendant argues that the trial court erred in classifying him as a persistent offender,
    saying he did not have the requisite number of prior felony convictions because the State failed to
    prove that he “was in fact the individual known as Randy Combee.” He contends he only had three
    prior felony convictions and, accordingly, should have been classified as a Range II offender.
    Tennessee Code Annotated section 40-35-107(a)(1) defines a “persistent offender” as a
    defendant who has received “[a]ny combination of five (5) or more prior felony convictions within
    the conviction class or higher, or within the next two (2) lower felony classes, where applicable.”
    A multiple offender is defined as a defendant who has received “[a] minimum of two (2) but not
    more than four (4) prior felony convictions within the conviction class, a higher class, or within the
    next two (2) lower felony classes, where applicable.” Tenn. Code Ann. § 40-35-106(a)(1).
    We respectfully disagree that, even as “David York,” the defendant has only three prior
    felony convictions. By our count, even excluding those convictions solely in the name of Randy
    Combee, the defendant has five prior felony convictions, thus justifying the court’s sentencing him
    as it did. As we have set out, he was convicted in state and federal courts2 as “David York” and
    “David Clinton York, a/k/a Randy Combee,”3 respectively, in Kentucky for felony stolen property
    offenses occurring on January 17, 1987, and in the same Kentucky state court (as “David York”) for
    felony stolen property offenses occurring on January 1, 1987. He was convicted in the Kentucky
    federal court, according to the judgment, as “David Clinton York” for felony firearms offenses
    occurring in December 1986 and January 1987. As “David Clinton York,” he was convicted in Polk
    County, Florida, for a rape committed in June 1974; and he was convicted as “David Clinton York,
    alias Randy Combee” in Polk County, Arkansas, for burglary and grand larceny, which had been
    committed on November 15, 1974. We note that this Arkansas sentence was to be served
    concurrently with the series of sentences imposed on “Randy Combee.”
    As this court explained in State v. Cottrell, 
    868 S.W.2d 673
    , 678 (Tenn. Crim. App. 1992),
    2
    Counts 1, 4, and 7 of the federal indictment, which were dismissed following the defendant’s pleas of guilty
    to Counts 2, 3, 5, 6, and 8, recited his previous convictions as being the state convictions in Arkansas and Florida, some
    of which, as we have stated, were solely in the name “Randy Combee.”
    3
    The federal indictment listed the defendant as “David Clinton York, a/k/a Randy Combee,” while the judgment
    listed him as “David Clinton York.”
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    name similarity “constitutes prima facie evidence of identity,” the court noting that the name “Scottie
    Cottrell” appeared both in the indictment which was the basis for the appeal, as well as the previous
    judgment that was the basis for enhanced punishment. Likewise, in State v. Woodson, 
    705 S.W.2d 677
    , 679 (Tenn. Crim. App. 1985), this court explained, quoting Beeler v. State, 
    206 Tenn. 160
    , 166,
    
    332 S.W.2d 203
    , 206 (1959), that “‘[a] majority of the authorities hold that the identity of name of
    the defendant and the person previously convicted is prima facie evidence of the identity of the
    person, and in the absence of rebutting evidence, supports a finding of such identity.’”
    These authorities make it clear that the State sufficiently proved that this defendant, “David
    Clinton York,” had at least five prior felony convictions of sufficient grade to justify his being
    sentenced as a Range III, persistent offender. Even if his argument were correct that the State did
    not sufficiently prove that David York and Randy Combee are the same person, the fact remains that,
    as David York, the defendant’s record of convictions qualified him as a persistent offender.
    Accordingly, this assignment is without merit.
    II. Denial of Alternative Sentencing
    The defendant argues that, had he not been classified as a persistent offender, he would have
    been eligible for an alternative sentence because his sentence was eight years or less. At the
    sentencing hearing, the defendant’s request for alternative sentencing was that “he’s been
    incarcerated without any kind of break for fifteen months straight since he was picked up on the
    indictment, at that time for aggravated assault, later indicted for attempted first degree murder.”
    An especially mitigated or standard offender convicted of a Class C, D, or E felony is
    presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
    contrary. Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated section 40-35-303(a) states
    that a defendant shall be eligible for probation, subject to certain exceptions, if the sentence imposed
    upon the defendant is eight years or less. Even if eligible, however, the defendant is not
    automatically entitled to probation as a matter of law. See id. § 40-35-303(b). The burden is upon
    the defendant to show that he is a suitable candidate for probation. Id.; State v. Goode, 
    956 S.W.2d 521
    , 527 (Tenn. Crim. App. 1997); State v. Boggs, 
    932 S.W.2d 467
    , 477 (Tenn. Crim. App. 1996).
    In order to meet this burden, the defendant “must demonstrate that probation will ‘subserve the ends
    of justice and the best interest of both the public and the defendant.’” State v. Bingham, 
    910 S.W.2d 448
    , 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 
    803 S.W.2d 250
    , 259 (Tenn. Crim. App.
    1990)).
    The presumption in favor of alternative sentencing may be overcome by facts contained in
    the presentence report, evidence presented by the State, the testimony of the accused or a defense
    witness, or any other source, provided it is made part of the record. State v. Parker, 
    932 S.W.2d 945
    ,
    958 (Tenn. Crim. App. 1996). A trial court may deny alternative sentencing and sentence a
    defendant to confinement based on any one of the following considerations:
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    (A) Confinement is necessary to protect society by restraining a
    defendant who has a long history of criminal conduct;
    (B) Confinement is necessary to avoid depreciating the seriousness of
    the offense or confinement is particularly suited to provide an
    effective deterrence to others likely to commit similar offenses; or
    (C) Measures less restrictive than confinement have frequently or
    recently been applied unsuccessfully to the defendant[.]
    Tenn. Code Ann. § 40-35-103(1).
    In denying alternative sentencing, the trial court stated:
    An alternative sentence, I can’t find that . . . . By a preponderance of
    the evidence, the court finds that this defendant possesses a criminal
    history which evidences his clear disregard for the law and society
    and a failure of past efforts to rehabilitate the defendant. And that
    would have been the presumption of alternative sentencing. I can’t
    make that with his criminal history. It’s too extensive, too lengthy to
    do that.
    Although the defendant was sentenced as a Range III offender, and thus not entitled to a
    presumption of being a favorable candidate for alternative sentencing, he would not have been
    entitled to this presumption even if he had been sentenced as a Range II offender, as he argues should
    have occurred. The presentence report shows that the defendant has spent the large bulk of his life,
    since 1965 when he was adjudged delinquent and sentenced to confinement in a Kentucky juvenile
    facility, in various federal and state penal institutions. The trial court determined that he was not
    entitled to alternative sentencing, and we agree.
    III. Application of Enhancement and Mitigating Factors
    Lastly, the defendant argues that the trial court erred in its application of the enhancement
    and mitigating factors, making his five-year sentence excessive. Specifically, he argues that
    “[w]ithout the significant weight of the prior criminal history, the enhancement and mitigating
    factors could have canceled each other out and the court would have been left with the minimum
    sentence in the Range which should have been four (4) years.”
    The defendant was convicted of felony jail escape, a Class E felony. The sentencing range
    for a Class E felony in Range III is not less than four nor more than six years. Tenn. Code Ann. §
    40-35-112(c)(5). The sentence to be imposed for a Class B, C, D, or E felony is presumptively the
    minimum in the range unless there are enhancement factors present. Id. § 40-35-210(c).
    Procedurally, the trial court is to increase the sentence within the range based on the existence of
    -7-
    enhancement factors, and then reduce the sentence as appropriate for any mitigating factors. Id. §
    40-35-210(e). Here, the trial court applied enhancement factor (2), “[t]he defendant has a previous
    history of criminal convictions or criminal behavior in addition to those necessary to establish the
    appropriate range,” Tenn. Code Ann. § 40-35-114(2) (2003), and assigned it “a great deal of weight.”
    The court applied one mitigating factor, “[t]he defendant's criminal conduct neither caused nor
    threatened serious bodily injury,” Tenn. Code Ann. § 40-35-113(1) (2003), and assigned it “some
    weight.” The weight given to each factor is left to the sound discretion of the trial court. State v.
    Shelton, 
    854 S.W.2d 116
    , 123 (Tenn. Crim. App. 1992).
    In setting the defendant’s sentence at five years, the trial court stated:
    The court has considered all the evidence in this case that I’ve
    heard, the sentencing report. I’ve considered the sentencing and the
    arguments that the counsel have made in this case. I’ve considered
    the major characteristics of the criminal conduct and all the mitigating
    and enhancement factors. I’ve considered my major findings as I
    have stated above, I have considered them all.
    The potential or the lack of potential for rehabilitation
    treatment, the court finds really none based on his criminal history.
    If you haven’t learned enough by the time you’re fifty something
    years of age, you’re rehabilitative history is very important. There’s
    not a lot, as we said, before him there. He was in custody and was
    found not guilty by a jury. I don’t know the facts of that case or
    anything about it, but he decided to leave the jail while he was being
    held for a felony. With this criminal history, we’re going to go with
    five years range three[.]
    We conclude that the trial court did not abuse its discretion in giving great weight to the
    defendant’s very substantial record of convictions over nearly a forty-year period.
    CONCLUSION
    Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.
    ___________________________________
    ALAN E. GLENN, JUDGE
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