State of Tennessee v. Warren Parker ( 2010 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs August 3, 2010
    STATE OF TENNESSEE v. WARREN PARKER
    Direct Appeal from the Criminal Court for Shelby County
    No. 06-08080    John T. Fowlkes, Jr., Judge
    No. W2009-02578-CCA-R3-CD - Filed December 7, 2010
    The defendant, Warren Parker, appeals the trial court’s denial of any form of alternative
    sentencing. The defendant entered a guilty plea to three counts of aggravated assault, a Class
    C felony, and one count of evading arrest, a Class A misdemeanor. He was sentenced to
    concurrent six year sentences for the Class C felonies and to a concurrent eleven-month,
    twenty-nine-day sentence for the Class A misdemeanor. After careful review, we affirm the
    trial court’s judgments that deny alternative sentencing.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
    J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
    W ITT, J R. and J.C. M CL IN, JJ., joined.
    Mark Renken (on appeal) and Lorna McClusky and Claiborne H. Ferguson (at trial),
    Memphis, Tennessee, for the appellant, Warren Parker.
    Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
    William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    The events underlying this case arose after an incident near a McDonald’s restaurant
    located at 6048 Stage Road in Shelby County, Tennessee. The defendant got into an
    altercation with the victims, left to go to his residence where he retrieved a .270 caliber rifle,
    and then returned to the scene. The defendant fired three shots at the victims as they tried
    to leave. He struck a juvenile victim twice and another victim once with his shots. Traveling
    in excess of eighty miles per hour while driving through neighborhood streets, the defendant
    fled the scene to avoid police officers. The defendant eventually lost control of his vehicle
    and struck a patrol car. The defendant was taken into custody, and a search incidental to
    arrest revealed that he was in possession of 3.3 grams of marijuana. The defendant was
    advised of his Miranda rights and acknowledged that he retrieved the weapon, returned to
    the scene, and fired three shots at the victims.
    The trial court conducted a sentencing hearing on November 12, 2009, where the
    defendant testified that he would be a good candidate for probation. He testified that he had
    just turned eighteen years of age at the time of the crimes, was self-employed, and planned
    to attend vocational school. His version of events suggested that the victims initially
    accosted him while he was in the drive-thru lane at McDonald’s. The defendant testified that
    he was exiting the parking lot when the victim’s car pulled out from a parking spot and hit
    his car. He claimed that the victims tried to drag him from his vehicle, but his girlfriend
    drove them to safety.
    The defendant testified that the victims chased him to his parent’s driveway before
    they left. He went inside the home, retrieved a deer rifle, loaded the gun, and returned to
    McDonald’s. He arrived there at approximately 1:00 a.m., when he saw the victim’s car
    charging him. He claimed that he fired in self-defense. The defendant testified that he fled
    when he saw the police stop the victim’s car. He refused to stop for police and got into an
    accident. He claimed that he did not intentionally hit the officer’s car and was ashamed of
    what transpired. He acknowledged that he had consumed beer and smoked marijuana on the
    night of the crimes. He admitted that he should have phoned the police but claimed he was
    not “thinking straight.” His girlfriend tried to talk him out of getting the rifle and tried to get
    him to stop while he was pursued by the police. He also acknowledged that he had been
    arrested for vandalism while on bond for the underlying crimes but insisted that it was a
    misunderstanding.
    The defendant’s father testified that he and his wife had given the rifle to the
    defendant as a gift because they were avid hunters. The rifle was a bolt-action deer rifle. He
    testified that the defendant had become withdrawn since the incident and still wanted to
    attend school. He said that his son did not wake him on the night of the crime when he came
    to retrieve the rifle.
    The trial court sentenced the defendant to concurrent six-year sentences for the three
    convictions for aggravated assault and to a concurrent eleven-month, twenty-nine-day
    sentence for evading arrest.
    Analysis
    On appeal, the defendant argues that the trial court erred in denying probation.
    -2-
    Specifically, the defendant contends that the trial court did not assign proper weight to the
    factors presented to mitigate his sentence. This court’s review of the sentence imposed by
    the trial court is de novo with a presumption of correctness. T.C.A. § 40-35-401(d). This
    presumption is conditioned upon an affirmative showing in the record that the trial judge
    considered the sentencing principles and all relevant facts and circumstances. State v. Pettus,
    
    986 S.W.2d 540
    , 543 (Tenn. 1999). If the trial court fails to comply with the statutory
    directives, there is no presumption of correctness and our review is de novo. State v. Poole,
    
    945 S.W.2d 93
    , 96 (Tenn. 1997).
    The burden is upon the appealing party to show that the sentence is improper. T.C.A.
    § 40-35-401(d), Sentencing Comm’n Comments. In conducting our review, we are required,
    pursuant to Tennessee Code Annotated section 40-35-210(b), to consider the following
    factors in sentencing:
    (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2)
    [t]he presentence report; (3) [t]he principles of sentencing and arguments as
    to sentencing alternatives; (4) [t]he nature and characteristics of the criminal
    conduct involved; (5) [e]vidence and information offered by the parties on the
    enhancement and mitigating factors in [sections] 40-35-113 and 40-35-114;
    and (6) [a]ny statement the defendant wishes to make in the defendant’s own
    behalf about sentencing.
    Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to
    use alternatives to incarceration. In determining if incarceration is appropriate, a trial court
    may consider the need to protect society by restraining a defendant having a long history of
    criminal conduct, the need to avoid depreciating the seriousness of the offense, whether
    confinement is particularly appropriate to effectively deter others likely to commit similar
    offenses, and whether less restrictive measures have often or recently been unsuccessfully
    applied to the defendant. T.C.A. § 40-35-103(1); see also State v. Ashby, 
    823 S.W.2d 166
    ,
    169 (Tenn. 1991).
    A court may also consider the mitigating and enhancing factors set forth in Tennessee
    Code Annotated sections 40-35-113 and 114, as they are relevant to the section 40-35-103
    considerations. T.C.A. § 40-35-210(b)(5); State v. Boston, 
    938 S.W.2d 435
    , 438 (Tenn.
    Crim. App. 1996). Additionally, a court should consider the defendant’s potential or lack of
    potential for rehabilitation when determining if an alternative sentence would be appropriate.
    T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.
    There is no mathematical equation to be utilized in determining sentencing
    alternatives. Not only should the sentence fit the offense, but it should fit the offender as
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    well. T.C.A. § 40-35-103(2); State v. Batey, 
    35 S.W.3d 585
    , 588-89 (Tenn. Crim. App.
    2000). Indeed, individualized punishment is the essence of alternative sentencing. State v.
    Dowdy, 
    894 S.W.2d 301
    , 305 (Tenn. Crim. App. 1994). In summary, sentencing must be
    determined on a case-by-case basis, tailoring each sentence to that particular defendant based
    upon the facts of that case and the circumstances of that defendant. State v. Moss, 
    727 S.W.2d 229
    , 235 (Tenn. 1986).
    Pursuant to the 2005 revisions to the Sentencing Act, a defendant is eligible for
    probation if the sentence received by the defendant is ten years or less, subject to some
    statutory exclusions. T.C.A. § 40-35-303(a) (2006). An especially mitigated or standard
    offender convicted of a Class C, D, or E felony should be considered as a favorable candidate
    for alternative sentencing options in the absence of evidence to the contrary. A court shall
    consider, but is not bound by, this advisory sentencing guideline. T.C.A. § 40-35-102(6).
    When the case involves a plea, our supreme court has held that it is proper for a trial
    court to look behind a plea bargain and consider the “true nature of the offenses committed”
    in setting a sentence within that range. State v. Hollingsworth, 
    647 S.W.2d 937
    , 939 (Tenn.
    1983).
    The record before this court does not contain a transcript of the defendant’s guilty plea
    hearing. In order to conduct an effective appellate review of sentencing, a transcript of the
    guilty plea hearing is necessary. State v. Keen, 
    996 S.W.2d 842
    , 844 (Tenn. Crim. App.
    1999). The transcript of the guilty plea hearing is usually necessary in order for this court
    to ascertain the facts and circumstances surrounding the offense. Indeed, the guilty plea
    hearing is the equivalent of a trial. Id. at 843. In the absence of a transcript of a guilty plea
    hearing, this court must generally conclude that the sentence imposed by the trial court was
    correct. Id. at 844.
    The presentence report in the record contains a statement about the crimes from the
    perspective of the State. The record also contains a transcript from the defendant’s petition
    to suspend sentence which consists of the testimonies of the defendant and his father, who
    asked the court to grant probation. In the trial court’s discussion of sentencing, the court
    noted the defendant’s favorable social history and strong family support, factors that support
    his request for probation. However, the trial court specifically found the defendant was not
    a credible witness with regard to his version of events. The defendant testified that he was
    trying to locate a pay phone to call the police just prior to the shooting. The court noted that
    the victim’s vehicle had already passed the defendant when he fired a second shot into the
    automobile, refuting his claim of self-defense. The court found the circumstances of the
    crime to be egregious and extreme. The court found that, rather than contact the authorities
    or his parents, the defendant armed himself with a powerful weapon and returned to the scene
    -4-
    over the objections of his girlfriend. The court found the defendant’s attempt to elude police
    even more egregious because he led them on a high speed chase through a residential area
    before ultimately crashing into a police officer’s vehicle and seriously injuring an officer.
    The court also concluded that the defendant had received a tremendous benefit through the
    terms of the plea agreement and denied probation. The defendant’s failure to include a
    transcript of the guilty plea causes this court to conclude that the sentence imposed by the
    trial court was correct. Therefore, the defendant is not entitled to relief.
    Our review of the record before us supports a conclusion that the trial court did not
    abuse its discretion in determining that a period of confinement was necessary based on the
    circumstances of the offense. The defendant’s actions demonstrated that he intended to exact
    deadly force on the victims for the events that proceeded the shooting in the parking lot of
    McDonald’s. He lacked credibility in his assertion that he was looking for a phone to call
    police because he could have easily phoned the police from the safety of his residence when
    he retrieved the rifle. There was no need for him to return to the scene and engage the
    victims. The defendant’s behavior justifies the conclusion that he intended to shoot the
    victims. Further, if he was looking for the police to arrive, he would not have engaged them
    in a high speed chase in a residential area. Given the actions of the defendant, the trial court
    properly found that the circumstances of the crimes justified a denial of alternative
    sentencing.
    Conclusion
    Based on the foregoing and the record as a whole, we affirm the judgments from the
    trial court.
    _________________________________
    JOHN EVERETT WILLIAMS, JUDGE
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Document Info

Docket Number: W2009-02578-CCA-R3-CD

Judges: Judge John Everett Williams

Filed Date: 12/7/2010

Precedential Status: Precedential

Modified Date: 4/17/2021