State v. Joseph Patterson ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1997 SESSION
December 3, 1997
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. # 01C01-9611-CC-00460 Clerk
Appellate Court
Appellee, * ROBERTSON COUNTY
VS. * Hon. Robert W . Wedemeyer, Judge
JOSEPH PATTERSON, * (Forgery)
Appellant. *
For Appellant: For Appellee:
Michael R. Jones Charles W. Burson
Public Defender Attorney General and Reporter
Nineteenth District
110 Sixth Avenue, West Daryl J. Brand
Springfield, TN 37172 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Dent Morriss
Assistant District Attorney General
500 South Main Street
Springfield, TN 37172
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Joseph Patterson, entered pleas of guilt to three
counts of passing a forged instrument. The trial court imposed Range III, four-year
sentences on each count, all of which are to be served concurrently in the
Department of Correction. At the time of sentencing, the defendant had
approximately eight months in jail credits.
In this appeal of right, the defendant complains that he should have
been granted an alternative sentence.
On September 25 and 26 of 1995, the defendant passed three forged
checks in the amounts of $35.00, $75.00, and $150.00. Although not written by the
defendant, the defendant cashed the checks and used the money to purchase crack
cocaine.
The defendant, thirty-six years of age, was homeless at the time of the
sentencing hearing. He has one child, five years old at that time, who lives with her
grandmother. The defendant acknowledged that he was an alcoholic and that he
was addicted to cocaine. The defendant has a sporadic work record. He is a farm
worker during the summer months and occasionally does odd jobs such as mowing
or raking yards. He takes medication for an illness and has received some disability
payments. The defendant was diagnosed HIV-positive in 1990.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). The presumption is "conditioned upon the affirmative showing
2
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
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and circumstances of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation or any other alternative sentence are the circumstances of the offense,
the defendant's prior criminal record, social history, present condition, and the
deterrent effect upon and best interest of the defendant and the public. State v.
Grear, 568 S.W.2d 285, 286 (Tenn. 1978). Especially mitigated or standard
offenders convicted of Class C, D, or E felonies are presumed to be favorable
candidates "for alternative sentencing options in the absence of evidence to the
contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions,
none of which apply here, probation must be automatically considered by the trial
court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-
303(a). Because the defendant is a Range III offender, he is not presumed to be a
favorable candidate for alternative sentencing options. Tenn. Code Ann. § 40-35-
102(6).
3
The trial court found two mitigating factors. It ruled that the defendant
played a minor role in the offense and that his conduct neither caused nor
threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1) and (4). Thus,
the trial court imposed the minimum sentence possible for a Range III offender.
Tenn. Code Ann. § 40-35-112(c)(5). Service of forty-five percent is required by a
Range III offender. Tenn. Code Ann. § 40-35-501(e).
Only five months before this offense, the defendant received a
sentence which included a four-year term of probation. A sentencing consideration
is whether measures that did not include confinement had "recently been applied
unsuccessfully to the defendant." Tenn. Code Ann. § 40-35-103(1)(C). The
defendant has a prior criminal record which began as early as 1987 and which
includes convictions for burglary (two counts), attempted burglary, grand larceny,
and a sale of cocaine. The forgeries were committed while the defendant was on
probation for the most recent burglary conviction. All of that, in our view, suggests a
lack of amenability for rehabilitation. For these reasons, the trial court had a
reasonable basis for the denial of an alternative sentence. The sentence of
confinement is appropriate under these circumstances.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
4
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
Curwood Witt, Judge
5