State v. William Lee Taylor ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY 1998 SESSION
March 5, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9704-CC-00153
Appellee, )
) WILLIAMSON COUNTY
VS. )
) HON. DONALD P. HARRIS,
WILLIAM LEE TAYLOR, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN HENDERSON JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
C. DIANE CROSIER RUTH A. THOMPSON
Asst. Public Defender Counsel for the State
450 James Robertson Pkwy.
EUGENE J. HONEA Nashville, TN 37243-0493
Asst. Public Defender
407-C Main St. JOSEPH D. BAUGH
P. O. Box 68 District Attorney General
Franklin, TN 37065
JEFF BURKS
Asst. District Attorney General
P. O. Box 937
Franklin, TN 37065
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
In September 1996, the defendant pled guilty to possession of marijuana
for resale and agreed to be sentenced as a Range II multiple offender. A sentencing
hearing was held to determine the length and manner of his sentence. After the hearing,
the trial judge sentenced the defendant to three years in the Tennessee Department of
Correction. In this appeal as of right, the defendant argues that the trial judge erred when
he refused to suspend the sentence and place the defendant on probation. After a
review of the record and applicable law, we find no error and affirm the judgment of the
court below.
At his sentencing hearing, the defendant testified that he had been
convicted of several felonies and that he had been previously placed on probation. He
further testified that he had violated his probation when he failed to meet the
requirements of the treatment facility where he was receiving counseling for substance
abuse. He told the court that he had been treated for substance abuse and depression
at three different facilities. The defendant also admitted that he had been arrested while
on bond in the instant case and was presently awaiting trial in Coffee County. 1
The defendant, who was twenty-four years old at the time of sentencing,
is married and has two children. He testified that his mother has custody of his first child
because the child’s mother died shortly after childbirth. However, he said that he helps
support that child and that he is the primary source of income for his wife and second
child. At the time, he had been employed at Tennessee Propellers, Inc., for
approximately six months. The defendant also testified that he has been attending
Motlow State Community College in Tullahoma. He said he planned to get an associate’s
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The defendant was ultimately acquitted of the theft of property charge.
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degree and then transfer to Middle Tennessee State University.
The defendant told the court that he had not used drugs since his arrest
and that being married had changed him. He testified that he realized he could not
continue the course his life had taken and that he had to take responsibility for his
actions.
After hearing this testimony, the trial court sentenced the defendant to three
years in the Tennessee Department of Correction and ordered him to pay a two thousand
dollar ($2000) fine. The trial judge pointed out that as a Range II multiple offender, the
defendant was not entitled to the presumption of suitability for an alternative sentence.
The court found two enhancing factors: that the defendant has a previous history of
criminal convictions in addition to those necessary to establish the appropriate range and
that the defendant had a previous history of unwillingness to comply with the conditions
of a sentence involving release in the community. T.C.A. § 40-35-114(1) & (8). As
mitigating factors, the judge considered the fact that the defendant’s conduct neither
caused nor threatened serious bodily injury and that the defendant had taken some
responsibility for his conduct. T.C.A. § 40-35-113(1) & (13).
The trial judge then stated that having considered the appropriate
sentencing considerations, including that measures less restrictive than confinement
have been frequently or recently applied unsuccessfully, he had determined that the
defendant was not suitable for probation. The judge stated that the although the
defendant had been previously placed on probation and in treatment, he still “saw fit to
go out and make his living selling drugs in the community.”
The defendant now appeals the trial court’s determination and urges this
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court to suspend his three year sentence and place him on probation. When a defendant
complains of his or her sentence, we must conduct a de novo review with a presumption
of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is
improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing Commission
Comments. This presumption, however, "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).
Tennessee Code Annotated § 40-35-103 sets out sentencing considerations
which are guidelines for determining whether or not a defendant should be incarcerated.
These include the need "to protect society by restraining a defendant who has a long
history of criminal conduct," the need "to avoid depreciating the seriousness of the
offense," the determination that "confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses," or the determination that
"measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant." T.C.A. § 40-35-103(1).
In determining the specific sentence and the possible combination of
sentencing alternatives, the court shall consider the following: (1) any evidence from the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and the arguments concerning sentencing alternatives, (4) the nature and characteristics
of the offense, (5) information offered by the State or the defendant concerning enhancing
and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the defendant's
statements in his or her own behalf concerning sentencing. T.C.A. § 40-35-210(b). In
addition, the legislature established certain sentencing principles which include the
following:
(5) In recognition that state prison capacities and the funds to
build and maintain them are limited, convicted felons
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committing the most severe offenses, possessing criminal
histories 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; and
(6) A defendant who does not fall within the parameters of
subdivision (5) and is 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 options in
the absence of evidence to the contrary.
T.C.A. § 40-35-102.
After reviewing the statutes set out above, it is obvious that the intent of the
legislature is to encourage alternatives to incarceration in cases where defendants are
sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,
it is also clear that there is an intent to incarcerate those defendants whose criminal
histories indicate a clear disregard for the laws and morals of society and a failure of past
efforts to rehabilitate.
The defendant complains that the court should not have denied his request
for probation. In determining whether the defendant should be granted probation, the
court must consider the defendant’s criminal record, social history, present physical and
mental condition, the circumstances of the offenses, the deterrent effect upon the criminal
activity of the accused as well as others, and the defendant’s potential for rehabilitation
or treatment. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993). In this
case, the defendant had a significant criminal history. During the period of December 6,
1990, to January 31,1991, the defendant was arrested six times. He was ultimately
convicted of two counts of burglary, two counts of aggravated burglary, and two counts
of forgery up to one thousand dollars ($1000). According to the presentence report, the
defendant was placed on probation and was ordered to enter a treatment facility as a
condition of his probation. His probation was revoked however, on September 9, 1991,
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when the defendant failed to comply with the facility’s requirements. The defendant then
began serving his original sentence of three years. He was released on January 30,
1992, and placed on parole. His sentences expired on March 24, 1994. He was arrested
for the instant offense on April 9, 1996. This type of history clearly supports the trial
court’s application of the enhancement factors as well as the sentencing consideration
that measures less restrictive than confinement have been frequently or recently applied
unsuccessfully to this defendant.
The defendant argues that the trial judge incorrectly concluded that the
defendant made his living selling drugs and that the judge did not take into consideration
the defendant’s potential for rehabilitation. We agree that the record does not support the
trial judge’s assertion that the defendant makes a living selling illegal drugs. The record
reflected that this is the defendant’s first drug-related offense and that he is otherwise
employed. However, it is clear that the trial judge did not sentence the defendant based
on this one statement. The trial judge had ample support for his decision to deny
probation. As for the defendant’s ability to be rehabilitated, we commend his efforts to go
to school, maintain employment, and support his family. However, we are not convinced
and nor was the trial court that the defendant is serious about rehabilitation. Once before
he was given the opportunity for rehabilitation and he proved unsuccessful. Even after
having been incarcerated, he continued his substance abuse and his criminal behavior.
Because of his prior criminal record and his previous inability to cooperate with probation
requirements, we find that the trial court did not err in denying the defendant’s request for
probation. The judgment of the court below is affirmed.
__________________________________
JOHN H. PEAY, Judge
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CONCUR:
_______________________________
JERRY L. SMITH, Judge
_______________________________
THOMAS T. W OODALL, Judge
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