State v. Bevelyn Bailey ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
FEBRUARY SESS ION, 1998 March 27, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9705-CC-00185
)
Appellee, )
) HARDEMAN COUNTY
V. )
)
) HON. JON KERRY BLACKWOOD,
BEVELYN BAILEY, ) JUDGE
)
Appe llant. ) (THEFT)
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP
113 North Court Squ are Attorney General & Reporter
P.O. Box 26
Wa verly, TN 37185 JANIS L. TURNER
(ON AP PEAL O NLY) Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
GARY F . ANTRICAN ELIZABETH T. RICE
District Public Defender District Attorn ey Ge neral
JEANNIE KAESS JERRY W. NORWOOD
Assistant Public Defender Assistant District Attorney General
P.O. Box 700 Hardeman County Courthouse
Somerville, TN 38068 Bolivar, TN 38008
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defen dant, Bevelyn Bailey, appeals as of right the sentence imposed by
the trial court upon his conviction of theft. Defendant was indicted by the Hardeman
Coun ty Grand Jury of burglary, theft and criminal impersonation. Defendant pled
guilty to theft of property worth between $1,000 and $10,000 in violation of
Tennessee Code Annotated section 39-14-103. The trial court sentenced Defendant
to eight (8) years incarc eration as a R ange II Multiple O ffender and de nied
Defendant’s request for alternative sentencing. The sentence was ordered to run
consecutively to a prior fifteen (15) year sentence imposed in Fayette County, for
which he was on parole at the time of the present offense. In this appeal, Defendant
argues that the trial co urt erred in senten cing him to eight (8) years incarceration and
in finding that he was not a favorable candidate for alternative sente ncing of split
confinement or Community Corrections. We affirm the judgment of the trial court.
Defendant testified on his own behalf at the sentencing hearing. He testified
that in the past he wa s “just w ild” but th at he “g rew up men tally” wh ile he w as in
prison. He stated that he obtained a job when he was on parole, but became
addicted to crack c ocaine in 1995. D efendant testified that this addiction to crack
cocaine caused him to skip work and to ultimately quit his job. He further testified
he would not ha ve comm itted the present offense of theft if he had not been on
cocaine .
When an accused challenges the length, range, or the manner of service of
a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with
a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 4 0-35-40 1(d). Th is presum ption is “co nditioned upon th e affirmative
showing in the record that the trial court considered the sentencing principles and
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all relevant facts and circums tances .” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). There are, however, exceptions to the presumption of correctness. First, the
record must demonstrate that the trial court considered the sentencing principles and
all relevant facts and circums tances . Id. Seco nd, the presu mptio n doe s not a pply
to the legal conclusion s reached by the trial court in sentenc ing. Third, the
presum ption does not ap ply when the d eterminations made b y the trial court are
predicated upon u ncontro verted fac ts. State v. Smith, 898 S.W.2d 742, 745 (Tenn.
Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn . 1995).
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 characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defen dant’s
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, & -
210; see Sta te v. Smith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentenc e after having given due consideration and
proper weight to the facts and principles set out under the sentencing law, and that
the trial court’s findings of fact are ad equa tely supported by the record, then we may
not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v.
Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).
Upon review of the record, we find that the trial court failed to state specific
findings of fact justifying the enhancement and mitigating factors applied and how
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it determined the weigh t to be app lied to eac h of them . Furthermo re, the trial court
did not explicitly se t forth its reasoning for the sentence imposed or for the denial of
alternative sentencing, and hence, failed to follow proper statutory sentencing
procedure. Therefore, review by this Court is de novo without a presumption of
correctness.
Defendant first argues that the eight (8) year sentence imposed was
excess ive. At the brief sentencing hearing, the trial court noted two enhancement
factors to be applicable: (1) D efendant ha d a previous h istory of criminal convictions
or criminal behavior; and (2) the felony was com mitted while on parole from a prior
felony conviction. Tenn. Code Ann. § 40-35-114(1) and (13)(B). T he trial court
considered two mitigating factors: (1) that the offense neither caused nor threatened
bodily injury; and (2) Defendant admitted guilt. Tenn. Code Ann. § 40-35-113(1) and
(13).
The pre-sentence report indicates that Defendant was previously convicted
of the follo wing o ffense s: seco nd de gree b urglar y in 1976, two cou nts of attem pt to
com mit the felony of burglary in 1979, possession of stolen property in 1980,
receiving stolen property in 1982, first-degree burglary on two separate occasions
in 1985, and larceny, second-degree burglary and first-degree burglary in 1988. At
the time he committed the present offense, he was on parole from a prior fifteen (15)
year sen tence im posed in 1988 in Fayette C ounty.
Tennessee Code Annotated section 40-35-210(c) provides that the minimum
sentence within the range is the presumptive sentence for a Class D fe lony. If there
are enhancing and mitigating factors, the court must start at the minimum sentence
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in the range and enhance the sentence as appropriate for the enhancement factors
and then reduce the sentence within the range as appropriate for the mitigating
factors. Tenn. Code Ann. § 40-35-210(e). It was stipulated by the parties that the
Defendant would be senten ced as a Ran ge II Multiple O ffender. T heft of prop erty
between $1,000 and $10,000, a Class D felony, has a sentence range of four (4) to
eight (8) years for a Range II offender. Tenn. Code Ann. §§ 40-35-1 12(b)(4), 39-14-
103 and 39-14-105(3). Even if some evidence of mitigation existed, which was
acknowledged by the tr ial court, where the mitigating factors are strongly outweighed
by the enhancement factors, the maximum senten ce is warra nted. State v. Ruane,
912 S.W.2d 766, 785 (Tenn. Crim. A pp. 1995). Based upon Defendant’s lengthy
criminal history and the fact that the present offense was committed while Defendant
was on parole, it was well within the trial court’s discretion to impose the maximum
sentence. Thus, the trial was justified in imposing the maximum sentence of eight
(8) years.
Tennessee Code A nnotated se ction 40-35-10 2 outlines whe n alternative
sentencing is appropriate. A defendant who “is an especially mitigated or standard
offender convicted of a Clas s C, D or E felony is pres ume d to be a favor able
candid ate for altern ative se ntenc ing options in the absence of evidence to the
contrary.” Tenn . Code Ann. § 40-35-102(6). As noted above, Defen dant ag reed to
plead guilty as a Range II Multiple Offender, so he is not within the parameters of
Tennessee Code A nnotated se ction 40-35-102(6), and is therefore not presumed
to be a favo rable can didate for a lternative se ntencing . Our sentencing law also
provides that “convicted felons committing the most severe offenses, possessing
criminal histories evincing a clear disregard for the laws and morals of society, and
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evincing failure of past efforts at rehabilitation shall be given first priority regarding
sentences involving incarceration.” T enn. Cod e Ann. § 40 -35-102(5).
When imposing a sentence of total confinement, our Criminal Sentencing
Reform Act mandates the trial court to base its decision on the considerations set
forth in Tennessee Code Annotated section 40-35-103. These considerations which
militate against alternative sentencing include: the need to protect society by
restraining a defendant having a long history of criminal conduct, whether
confinement is partic ularly ap propr iate to e ffectively deter o thers lik ely to com mit a
similar offense, th e need to avoid depreciating the seriousness of the offense, and
the need to order confinement in cases in which less restrictive measures have often
or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-
103(1)(A ) - (C).
In the case sub judice, we find tha t confin eme nt is neces sary to pro tect socie ty
from Defendant b ased o n his exten sive crimin al record dating ba ck to 197 6. See
Tenn. Code Ann. § 4 0-35-10 3(1)(A). He has been previously convicted of numerous
felony offenses and the present offense was c omm itted wh ile on parole from a prior
felony conviction . The D efenda nt has apparently failed at all past efforts of
rehabilitation. See Tenn. Code Ann. § 40-35-103(5). Based on these facts, the
Defendant apparently has a total disregard for the laws and morals of society.
Regarding Defe ndan t’s reque st for sp lit confin eme nt, this Court has h eld that where
a defend ant’s histor y indicates a clear dis regard fo r the law an d mora ls of society
and a failure of p ast efforts to rehabilitate , the trial judg e doe s not a buse his
discretion in denying probatio n. State v. Chrisman, 885 S.W.2d 834 (Tenn. Crim .
App. 19 94).
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The Defendant also argues that Com mun ity Corre ctions would be a su itable
alternative to incarce ration. The Com mun ity Corre ctions Act allo ws ce rtain eligible
offenders to participa te in community based alternatives to incarceration, how ever,
a defendant must first be a suitable candidate for alternative sentencing. Tenn.
Code Ann. § 40-35-104(9). Therefore, since the Defendant is n ot a su itable
candid ate for alternative sentencing because of the factors discus sed a bove, this
preclud es him from pa rticipating in th e Com munity C orrection s progra m.
W hile the trial court may h ave failed to specify certain facts to support the
sentence imposed, we find that the record provides the facts necessary to affirm the
trial court’s decision. Based upon the evidence presented at the sentencing hearing,
the presentence report, the princip les of sen tencing s et forth in T enn. C ode An n. §
40-35-102, -103, -104, the nature of the offense, and the Defendant’s potential for
rehabilitation, we find that the trial court did not err in imposing the maximum
senten ce and denying the Defe ndant a ny type of a lternative se ntencing .
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Accordingly, the judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH B. JONES, Presiding Judge
___________________________________
JOHN H. PEAY, Judge
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