State of Tennessee v. Frank Ramsey ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 26, 2006
STATE OF TENNESSEE v. FRANK RAMSEY
Appeal from the Criminal Court for Sullivan County
No. S49,675 R. Jerry Beck, Judge
No. E2005-02595-CCA-R3-CD - Filed September 28, 2006
The Appellant, Frank Ramsey, appeals the sentencing decision of the Sullivan County Criminal
Court following his guilty plea to the crime of initiating a false report in violation of Tennessee Code
Annotated section 39-16-502(a)(1)(c). Pursuant to the plea agreement, he was sentenced as a Range
II multiple offender to a sentence of four years with the manner of service of the sentence to be
determined by the trial court. On appeal, the Appellant argues that the trial court erred by denying
his request for alternative sentencing. After review of the record, we affirm the judgment of the trial
court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
DAVID G. HAYES, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and J.C.
MCLIN , JJ., joined.
Joseph F. Harrison, Assistant Public Defender, Blountville, Tennessee, for the Appellant, Frank
Ramsey.
Paul G. Summers, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Rebecca H. Davenport, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
Procedural History
On October 13, 2004, a Sullivan County grand jury returned a one-count indictment against
the Appellant charging him with the offense of initiating a false report, a Class D felony.
Subsequently, the Appellant entered into a plea agreement with the State whereby he pled guilty to
the indicted charge. The terms of the plea agreement provided that the Appellant would plead guilty,
as a Range II multiple offender, and receive a sentence of four years, the minimum sentence within
the range, with the trial court determining the manner of service. At the guilty plea hearing, the State
summarized the facts underlying the conviction as follows:
On June 8th, 2004, the [Appellant], . . . telephoned the Sullivan County
Sheriff’s Department to say that his 1994 Honda Civic had been taken without his
permission by Kim McCoy, who had been staying with him previously at 2677
Highway 11-W in Bristol, Tennessee, which is located in Sullivan County.
Officer Robert Bowen was sent to the scene. He spoke with [the Appellant].
He took a written report, which [the Appellant] signed, stating that Ms. McCoy had
taken the vehicle. He gave a full description of the vehicle and said that she did not
have permission to take the automobile.
Detective Landon Bellamy was following up on the report. Some things
occurred which made him question whether or not the automobile was indeed stolen.
He spoke with [the Appellant], and [the Appellant] said that he had reported the
vehicle missing, because Ms. McCoy had his license plate and wouldn’t give it back
and that prior to . . . about a week prior to signing the report, he had indeed signed
the vehicle over to her, and she, obviously, then, had permission to have the vehicle.
Following a sentencing hearing, the trial court denied the Appellant’s request for alternative
sentencing and ordered the four-year sentence be served in the Department of Correction. This
appeal followed.
Analysis
On appeal, the Appellant raises the single issue of whether the trial court erred by denying
his request for probation or community corrections and imposing a sentence of confinement. When
an accused challenges the length, range, or the manner of service of a sentence, this court has a duty
to conduct a de novo review of the sentence with a presumption that the determinations made by the
trial court are correct. T.C.A. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). This presumption is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” Ashby, 823
S.W.2d at 169. When conducting a de novo review of a sentence, this court must consider: (a) the
evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors;
(f) any statement that the Appellant made on his own behalf; and (g) the potential or lack of potential
for rehabilitation or treatment. T.C.A. § 40-35-102, -103, -210 (2003); Ashby, 823 S.W.2d at 168.
The burden of showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d).
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A defendant convicted of a Class C, D, or E felony and sentenced as a mitigated or standard
offender is presumed to be a favorable candidate “for alternative sentencing options in the absence
of evidence to the contrary.” T.C.A. § 40-35-102(6). In the case before us, however, the Appellant
pled guilty to a Class D felony as a Range II multiple offender. Thus, he is not presumed to be a
favorable candidate for alternative sentencing. Nonetheless, because the Appellant was sentenced
to a term of less than eight years incarceration,1 he was eligible for a sentence of probation. T.C.A.
§ 40-35-303(a) (2003). However, the Appellant bears the burden of establishing his suitability for
a suspended sentence. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). In
determining the Appellant’s suitability for non-incarcerative sentencing alternatives, including
probation and community corrections, this court considers whether:
(A) Confinement is necessary to protect society by restraining a defendant who has
a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to others likely
to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been
applied unsuccessfully to the defendant[.]
T.C.A. § 40-35-103(1). In choosing among possible sentencing alternatives, the trial court should
also consider Tennessee Code Annotated section 40-35-103(5), which states, in pertinent part, “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be considered
in determining the sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5).
The trial court may also consider a defendant’s untruthfulness and lack of candor as they relate to
the potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999).
In imposing a sentence of incarceration, the trial court made the following findings of fact:
The [Appellant] is age 43. He has a . . . well, he has a terrible record,
including felonies. Some of his misdemeanor record such as speeding, that type of
thing, failure to stop for red light, I do not believe to be significant. Collectively, it
may be worth some weight as to deny him probation, but I’m more concerned . . . the
Court is more concerned about the felonies and he’s had a fairly consistent run of
felonies. He lives with a person by the name of Kim. He . . . out of a jealous rage
or out of maliciousness or for some reason, when she left with another man in a car,
he reported it to the police as stolen. Now, when you do that, what you do, you make
the police, your . . . although unknowingly, you make your police officers unknowing
aiders and abettors to the crime. Not in a legal sense, but you garnish the power of
1
A defendant who is sentenced for a crime committed after June 7, 2005, is eligible for probation if the sentence
is ten years or less. See T.C.A. § 40-35-303(a).
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the State to put another person in prison with a lie, and [the Appellant] should
appreciate that more than anyone, having served hard time. It’s probably the
nightmare of every police officer. It is certainly the nightmare of every District
Attorney I’ve ever know[n] was that you might put somebody in the wrong . . . in
prison wrongfully, and when these types of reports start coming out, people could be
arrested in West Virginia or somewhere, held in custody, extradited back to this
State, and it becomes just a plain old swearing match before a Jury, whose truth . .
. who is telling the truth and who is lying. It didn’t happen in this case. It could have
happened. Probation will be denied in all forms and kind. The sentence is . . . [f]our
years, Range 2.
From a reading of the court’s findings, it is clear that the court denied alternative sentencing
based upon the Appellant’s extensive criminal history and the need to avoid depreciating the
seriousness of the offense. On appeal, the Appellant asserts that it “is apparent that the Appellant
should have been granted alternative sentencing . . . [because] [c]onfinement of this Appellant is not
necessary to protect society . . . , confinement was not necessary to avoid depreciating the
seriousness of this offense nor is it particularly well suited to provide an effective deterrent to others
likely to commit a similar offense.” He specifically asserts that the trial court failed to articulate any
finding of deterrence in denying alternative sentencing, failed to analyze the need for deterrence in
light of the factors set forth in State v. Hooper, 29 S.W.3d 1 (Tenn. 2000), and, further, that the
record is devoid of any evidence regarding deterrence.
Initially, we are constrained to note that although a presentence report was prepared and
considered by the trial court in determining the appropriate manner of service of the sentence in this
case, the presentence report is not part of the record before us. We note that the Appellant references
such report in his brief and states that it can be found in Volume III, pages 5-8. However, as noted,
no Volume III is contained in the record before us. It is well-settled that it is the duty of the
Appellant to provide a record that conveys a fair, accurate, and complete account of what transpired
with regard to the issue that forms the basis of the appeal. Tenn. R. App. P. 24(b). When the record
on appeal consists of less than all of the actions occurring in the trial court that were relevant to an
issue raised by an appealing party, we presume that the trial court’s factual findings are supported
by the full record and are, therefore, correct. State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App.
1987). Thus, we must presume that there was sufficient evidence of the Appellant’s previous
convictions to warrant the trial court’s findings. Moreover, in the context of the standard of
appellate review of sentencing decisions being de novo review of the record with the presumption
that the trial court’s determinations are correct, a full record of what occurred in the trial court that
is relevant to sentencing is essential to our inquiry. See, e.g., State v. Meeks, 779 S.W.2d 394, 397
(Tenn. Crim. App. 1988). Our review of the record on appeal uncovers nothing that would overcome
the presumption that the trial court’s sentencing determinations were correct.2 Because the Appellant
2
Included in the “Technical Record” is the State’s Notice of Intent to use Criminal History and Evidence of
Prior Bad Acts which reflects convictions for aggravated assault, petit larceny, entering with unlawful intent, aggravated
(continued...)
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has failed to establish that the trial court erred in denying him an alternative sentence, the judgment
of the trial court is affirmed.
CONCLUSION
Based upon the foregoing, the Sullivan County Criminal Court’s denial of alternative
sentencing is affirmed.
___________________________________
DAVID G. HAYES, JUDGE
2
(...continued)
burglary, burglary of a motor vehicle with intent to commit theft, first degree criminal trespass, possession of a firearm
by a convicted felon, and felony escape. These felony convictions occurred in the federal courts and the state courts of
Tennessee, Oklahoma, Kansas, Texas, and Colorado. The Appellant acknowledged that he has served extended terms
in the penitentiary. Moreover, the Appellant admitted that he has violated the conditions of probation of a previously
imposed sentence, resulting in revocation of the suspended sentence.
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