State v. Melvin Archuleta ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1998 SESSION
September 18, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9705-CC-00167
Appellee, )
) MONTGOMERY COUNTY
VS. )
) HON. JOHN H. GASAWAY III,
MELVIN WAYNE ARCHULETA, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
J. TIMOTHY STREET JOHN KNOX WALKUP
136 Fourth Ave., South Attorney General & Reporter
Franklin, TN 37064
(On Appeal) GEORGIA BLYTHE FELNER
Asst. Attorney General
MICHAEL JONES Cordell Hull Bldg., 2nd Fl.
Public Defender 425 Fifth Ave., North
Nashville, TN 37243-0493
COLLIER GOODLETT
Asst. Public Defender JOHN W. CARNEY
109 South Second St. District Attorney General
Clarksville, TN 37040
(At Trial) WILLIAM CLOUD
Asst. District Attorney General
204 Franklin St., Suite 200
Clarksville, TN 37040
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted for theft of property over five hundred dollars
($500) in value. He pled guilty to theft of property less than five hundred dollars ($500).
Following a sentencing hearing, the trial court sentenced the defendant to eleven months
and twenty-nine days, to serve six months with the balance probated. The defendant
now appeals and argues that the trial court erred by not suspending his entire sentence.
After a review of the record and applicable law, 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.
In the summer of 1995, the defendant noticed several tire rims outside of
Huff’s Tractor Service. He then took the rims and several days later he attempted to sell
the rims to Friendly Tire. Friendly Tire noticed markings on the rims indicating the rims
were the same rims Friendly Tire had sent to Huff’s Tractor Service for repair. Friendly
Tire became suspicious and notified Mr. Huff of the attempted sale. Mr. Huff
subsequently reported the incident to the police.
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).
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The defendant complains that the court erred in not granting his request for
full 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. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993).
Based on the lengthy criminal record revealed in the presentence report
and the absence of a reasonable expectation of rehabilitation, the judge denied
probation. The trial judge specifically stated that, in light of the prior convictions, there
was no reason for the court to believe that a probated sentence would bring about
rehabilitation. The trial judge concluded that the defendant appeared to be incapable of
being rehabilitated. The evidence presented fully supports these findings.
The defendant further contends that the trial court erred in failing to note on the
record what enhancement and mitigating factors, if any, were relied on in the decision not
to grant probation. This contention is without merit. This Court has previously held the
Criminal Sentencing Reform Act does not require trial judges to explicitly list on the record
applicable enhancing and mitigating factors in misdemeanor cases. State v. Loden, 920
S.W.2d 261, 266 (Tenn. Crim. App. 1995).
In sum, the evidence presented fully supports the trial court’s findings.
Furthermore, these findings support the trial court’s conclusion that probation is not
proper for this defendant. The judgment of the trial court is therefore affirmed.
______________________________
JOHN H. PEAY, Judge
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CONCUR:
______________________________
THOMAS T. W OODALL, Judge
______________________________
L. TERRY LAFFERTY, Special Judge
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