State v. Ronnie Holmes ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION FILED
February 19, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9703-CC-00113
Appellee, )
) Chester County
V. )
) Honorable W hit Lafon, Judge
RONNIE HOLMES, )
) (Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Mike Mosier John Knox Walkup
Attorney at Law Attorney General & Reporter
204 West Baltimore
P.O. Box 1623 Janis L. Turner
Jackson, TN 38302-1623 Counsel for the State
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry Woodall
District Attorney General
James W. Thompson
Assistant District Attorney General
P.O. Box 2825
Jackson, TN 38302
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Ronnie Holmes, the appellant, entered a plea of nolo contendere to
vandalism under five hundred dollars and criminal trespass in the Chester
County Circuit Court. The court sentenced the appellant to thirty days for each
offense to run concurrently. The court further ordered that, after serving fifteen
days, the appellant would be eligible for work release. On appeal, the appellant
argues he should have been sentenced to full probation.
The sentencing range for vandalism under five hundred dollars, a class A
misdemeanor, is no greater than eleven months and twenty-nine days
incarceration. Tenn Code Ann. § 40-35-111(e)(1) (1990). The range for criminal
trespass, a class C misdemeanor, is no greater than thirty days incarceration.
Tenn. Code Ann. § 40-35-111(e)(3).
When an appellant challenges the manner of service of a sentence, this
Court reviews the evidence de novo with a presumption that the determinations
of the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1990). The
presumption of correctness is conditioned upon an affirmative showing 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). Our review
consists of an analysis of the evidence at the sentencing hearing, the
presentence report, the principles of sentencing, the arguments of counsel, the
nature and characteristics of the offense, mitigating and enhancement factors,
the defendant’s statements and the defendant’s potential for rehabilitation or
treatment. Tenn Code Ann. §§ 40-35-102 (Supp. 1994), -103 (1990), -210
(Supp. 1992); Ashby, 823 S.W.2d at 169.
Misdemeanor sentences must be specific and in accordance with the
principles, purposes and goals of the Criminal Sentencing Reform Act of 1989.
State v. Palmer, 902 S.W .2d 391, 394 (Tenn. 1995). The trial judge shall fix a
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percentage of the sentence that the defendant shall serve; after service, the
defendant is eligible for rehabilitative programs. Tenn. Code Ann. § 40-35-
302(b) & (d) (Supp. 1994); Palmer, 902 S.W.2d at 394. Alternatively, the court
can grant probation immediately, or after a period of split or continuous
confinement. Tenn. Code Ann. § 40-35-302(e)(1) & (2).
The evidence at the sentencing hearing consisted of the testimony of the
victim, the appellant, two photographs and the presentencing report. The
appellant is twenty-nine years old, a high school graduate and a lifelong resident
of Chester County. He is married and employed as a security guard. The
appellant has no criminal record. The appellant has no history of drug or alcohol
use. He has no history of psychiatric or medical problems.
Debra Schwartz is the victim. Ms. Schwartz owns a realty business in
Chester County, and, at one time, she employed the appellant’s wife. After Ms.
Schwartz fired the appellant’s wife, her business was egged numerous times and
the locks were liquid soldered shut. The appellant described his wife’s
termination as unpleasant. Ms. Schwartz suspected that the appellant was the
perpetrator, but she had no proof. Ms. Schwartz installed a video camera at her
office. She videotaped the appellant placing the head of a dead deer at the front
door of her business and throwing eggs at the business. Ms. Schwartz identified
the appellant as the person in the videotape. After the appellant pled guilty, the
vandalism stopped. The photographs of the scene, including the head of the
dead deer, were introduced into evidence.
The appellant testified that he did not recognize himself in the video taken
by Ms. Schwartz. He denied placing the deer head at the office doors. The
appellant further denied committing any of the criminal acts complained of by
Ms. Schwartz. He said that he pled guilty to the charges because it was in his
best interest.
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“‘The misdemeanant, unlike the felon, is not entitled to the presumption of
the minimum sentence.’” State v. Connors, 924 S.W.2d 362, 363, (Tenn. Crim.
App. 1996)(citing State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.
1994). In determining the percentage of the sentence to be served, the court
must consider enhancement and mitigating factors as well as the legislative
purposes and principles related to sentencing. Connors, 924 S.W.2d at 364.
At the sentencing hearing, the state did not ask the court to consider any
enhancement factors in setting the sentence. The appellant argued that he
should receive probation primarily because he had never been arrested for, or
convicted of, any criminal offense. The trial court did not make specific findings
of fact or state the basis of his ruling. Accordingly, our review of the record is de
novo.
We affirm the sentence of the trial court based on the nature of the
offense and the appellant’s lack of candor. Placing the head of a deer at the
doors of Ms. Schwartz’ business is especially offensive, repulsive, and juvenile.
Ms. Shwartz identified the appellant as the perpetrator on the video; the
vandalism to her business stopped once the appellant was charged or pled
guilty. From this evidence, we infer that the appellant testified untruthfully when
he denied any involvement in the crimes committed against Ms. Schwartz.
The judgment of the trial court is affirmed.
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
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_____________________________
DAVID G. HAYES, Judge
_____________________________
JOE G. RILEY, Judge
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