State v. Russell Barnes ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
DECEMBER 1998 SESSION March 22, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9805-CC-00133
Appellee, )
) Hardin County
V. )
) Honorable C. Creed McGinley, Judge
)
RUSSELL BARNES, ) (Aggravated Burglary)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
HARRIET S. THOMPSON JOHN KNOX WALKUP
106 East Market Street Attorney General & Reporter
Bolivar, TN 38008
ELIZABETH T. RYAN
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
ROBERT “GUS” RADFORD
District Attorney General
JOHN W. OVERTON, JR.
Assistant District Attorney General
P.O. Box 484
Savannah, TN 38372
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
Russell Barnes appeals the denial of his request for alternative
sentencing. The appellant pleaded guilty on March 30, 1998 to aggravated
burglary1 committed on or about May 20, 1997 and was sentenced in
accordance with his plea agreement to the range 1 minimum of three years, with
the manner of service to be determined at a subsequent sentencing hearing. At
that hearing, the trial court found that the appellant is not a suitable candidate for
alternative sentencing and ordered confinement in the Tennessee Department of
Corrections. The appellant’s sole issue on this appeal is whether the trial court
erred in denying alternative sentencing.
We affirm the judgment of the trial court.
When an accused challenges the length or manner of service of a
sentence, it is the duty of this Court to conduct a de novo review on the record
“with a presumption that the determinations made by the court from which the
appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). 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.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this Court must consider
(1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) any statutory mitigating or enhancement factors; (6) any statement
made by the accused in his own behalf; and (7) the potential or lack or potential
1
The appellant also pleaded guilty to unlawful possession of a firearm; driving
on a revoked license; and driving under the influence (second offense), for
which he received sentences of thirty days, sixty days, and eleven months
and twenty-nine days, respectively. These sentences are not contested.
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for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellant
carries the burden of showing that his sentence is improper. See Tenn. Code
Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan, 929 S.W.2d
391, 395 (Tenn. Crim. App. 1996).
At his sentencing hearing, the appellant testified that he was employed
and that he provides for his fiancé, who has cancer and who was, at that time,
pregnant. He indicated that, although he had previously completed an alcohol
abuse treatment program, he still has a drinking problem. And, he stated that he
would agree to pay restitution if requested by the victim.
The appellant also admitted, however, that he had been arrested and
convicted four times for public intoxication and once for domestic assault against
his fiancé while on bond awaiting sentencing in the present case. Additionally,
the state exhibited the appellant’s presentence report, which indicates some
fourteen prior arrests. Although the report does not state the disposition of these
arrests, the appellant admitted that twelve or thirteen of them resulted in
convictions.
After hearing this proof, the trial court first noted that the appellant is
presumed eligible for alternative sentencing. See Tenn. Code Ann. § 40-35-102.
However, based on the appellant’s lengthy criminal record, the court
“inescapabl[y] conclu[ded] that he’s not an appropriate candidate for any type of
alternative sentencing. He has very little respect for the law or any rules that
would govern civilized people’s behavior.”
The appellant first argues that, because the trial court failed to consider
the eligibility requirements for a sentence to the community corrections program,
the sentence below is not entitled to a presumption of correctness. We disagree.
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As noted above, the trial court began by acknowledging that the appellant is
presumed eligible for alternative sentencing. However, the appellant’s proven
disregard for the law convinced the trial court that, despite this presumption of
eligibility, the appellant is not an appropriate candidate for any alternative to
incarceration. Having determined that the appellant is unsuitable for alternative
sentencing generally, we find no error in the trial court’s failure to inquire further
as to the appellant’s eligibility for community corrections specifically.
The appellant next asserts that he is in fact eligible for community
corrections pursuant to both subsections (a) and (c) of Tennessee Code
Annotated § 40-36-106 and that the trial court erred in denying such a sentence.
Again, we do not agree.
Even if the appellant were eligible for community corrections, we would
not find the trial court’s denial of that sentence erroneous. As this Court has
previously explained, an offender’s eligibility for community corrections does not
amount to entitlement. See State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim.
App. 1997). “[G]iven their ability to review the offender’s demeanor and
characteristics first hand, trial courts are in the best position to ascertain an
offender’s amenability to a community corrections program.” Therefore, this
Court will not disturb a trial court’s decision in that regard absent a clear showing
of abuse of discretion. Id. Because we find no error in the trial court’s
determination that the appellant is generally unsuitable for alternative
sentencing, this issue is without merit.
Moreover, we would not find the appellant eligible for a community
corrections sentence. Eligibility under subsection (a) requires, inter alia, that the
offender not “demonstrate a pattern of committing violent offenses.” Tenn.
Code. Ann. § 40-36-106(a)(6). The appellant was arrested for spousal abuse
while on bond awaiting sentencing in this case, and, of the fourteen arrests listed
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in the appellant’s presentence report, eight are for battery. Thus, we conclude
that the appellant’s history does indicate a pattern of violent offenses and that he
is, therefore, ineligible for consideration of a community corrections sentence
under subsection (a).
To be eligible for community corrections under the “special needs”
provision of subsection (c), an offender must first be statutorily eligible for
probation. In addition, there must be a determination that “(1) the offender has a
history of chronic alcohol, drug abuse, or mental health problems; (2) these
factors were reasonably related to and contributed to the offender’s criminal
conduct, (3) the identifiable special need(s) are treatable, and (4) the treatment
of the special needs could be served best in the community rather than in a
correctional institution.” State v. Grigsby, 957 S.W.2d 541, 546-47 (Tenn. Crim.
App. 1996).
The appellant is statutorily eligible for probation, see T.C.A. § 40-35-303;
and he has a history of alcohol abuse. However, the record before us simply
does not establish any of the remaining requirements. Nothing suggests that the
appellant’s alcohol problem contributed to this aggravated burglary. The
appellant’s previously attempted treatment was apparently unsuccessful, and he
offers nothing to suggest that his problem is now treatable. And, even if
treatable, there is nothing to suggest that his treatment would be better served in
the community rather than a correctional institution. The appellant has failed to
carry his burden of showing that his sentence is improper.
The judgment of the trial court is AFFIRMED.
____________________________
JOHN EVERETT W ILLIAMS, Judge
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CONCUR:
_____________________________
GARY R. WADE, Judge
_____________________________
THOMAS T. W OODALL, Judge
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