State v. Patricia Lishman ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
FILED
March 10, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9704-CC-00136
Appellee, )
) McNAIRY COUNTY
VS. )
) HON. JON KERRY
PATRICIA A. LISHMAN, ) BLACKWOOD, JUDGE
)
Appellant. ) (Denial of Alternative Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
GARY F. ANTRICAN JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
JEANNIE A. KAESS DEBORAH A. TULLIS
(At Hearing) Assistant Attorney General
Assistant Public Defender Cordell Hull Building, 2nd Floor
17805 Highway 64 425 Fifth Avenue North
P.O. Box 700 Nashville, TN 37243-0493
Somerville, TN 38068-0700
ELIZABETH T. RICE
CLIFFORD K. McGOWN, JR. District Attorney General
(On Appeal)
113 North Court Square ED NEAL McDANIEL
P.O. Box 26 Assistant District Attorney General
Waverly, TN 37185 300 Industrial Park Drive
P.O. Box 473
Selmer, TN 38375-0473
OPINION FILED:
AFFIRMED AS MODIFIED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Patricia A. Lishman, pled guilty in the McNairy County Circuit
Court to two (2) counts of burglary, Class D felonies; one (1) count of theft over
$500, a Class E felony; and one (1) count of theft under $500, a Class A
misdemeanor. The trial court denied alternative sentencing and imposed
concurrent sentences of two (2) years for each count of burglary, one (1) year for
the felony theft count and six (6) months in the county jail for the misdemeanor theft
count. On appeal, defendant challenges the trial court’s denial of alternative
sentencing. We remand for entry of modified judgments. In all other respects, the
judgment of the trial court is affirmed.
I
Defendant claims that because she was convicted of one (1) Class E felony
and two (2) Class D felonies, she is entitled to the statutory presumption of
alternative sentencing. She contends that the state did not rebut that presumption;
therefore, the trial court erred in denying alternative sentencing. 1
At the time of the sentencing hearing, defendant was serving a sentence on
community corrections for a prior aggravated burglary conviction. She stated that
her performance on the program had been excellent. She regularly reported to her
community corrections supervisor and attended Alcoholics Anonymous meetings.
Defendant testified that incarceration would be a hardship because she was taking
care of her ill mother. Although she admitted prior crack cocaine use, defendant
claimed that she no longer used any kind of drugs. She testified that she had been
rehabilitated and would comply with the conditions of an alternative sentence.
On cross-examination, defendant acknowledged that she had prior
convictions for aggravated burglary, theft under $500, and possession of drug
1
She also argues that the trial court imposed excessive sentences. We find this claim
to be without merit in that she received the presumptive minimum sentence within the range
for each felony count.
2
paraphernalia.2 She also admitted that one month prior to the hearing, she tested
positive for cocaine while on community corrections for the aggravated burglary
conviction.3 Furthermore, she contested her involvement in the crimes, claiming
that someone else was actually responsible for stealing the items.
The trial court sentenced defendant as a Range I, Standard Offender, to
concurrent sentences of two (2) years for each count of burglary, one (1) year for
theft over $500 and six (6) months in the county jail for theft under $500.
In a subsequent written sentencing order, the trial court noted that defendant
was statutorily presumed to be a favorable candidate for alternative sentencing.
However, the trial court found that defendant had a prior history of criminal
convictions, measures less restrictive than confinement had recently been applied
unsuccessfully to the defendant, defendant tested positive for a controlled
substance while serving a sentence in the community corrections program, and she
was unwilling to accept responsibility for her criminal behavior. As a result, the trial
court determined that these factors outweighed the statutory presumption and
denied alternative sentencing.
II
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
2
The pre-sentence report also indicates that defendant pled guilty in 1977 to
attempted burglary. At the sentencing hearing, defendant contested this conviction, claiming
that the charge was dismissed. Our disposition of this appeal would be the same regardless
of whether there was such a conviction.
3
She claimed that she tested positive for cocaine because she was taking a drug called
“benzocaine, which is for severe itching, and it has a cocaine derivative, but, you know, my
probation officer and I have worked that out.”
3
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. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-
210, 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 §§ 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. An especially mitigated or standard
offender convicted of a Class C, D or E felony is presumed to be a favorable
candidate for alternative sentencing options in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6).
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. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d at 169.
A court may also consider the mitigating and enhancing factors set forth in
Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103
considerations. Tenn. Code Ann. § 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. Tenn. Code Ann. § 40-35-103(5); State
v. 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
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offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467(Tenn. Crim. App. 1996). 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).
The record supports the trial court’s denial of alternative sentencing in this
case. Defendant has a history of criminal convictions, including aggravated
burglary, theft under $500, possession of drug paraphernalia and leaving the scene
of an accident. Furthermore, measures less restrictive than incarceration have
recently been unsuccessfully applied to the defendant, in that she tested positive
for a controlled substance while on the community corrections program. Moreover,
defendant’s version of the crimes indicate that she may have been less than candid
with the trial court about her involvement. This reflects upon her potential for
rehabilitation. State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996).
Accordingly, we find that the trial court properly denied alternative sentencing.
This issue is without merit.
III
This Court notes that the written judgment of conviction on Count Three
incorrectly states that defendant was sentenced to three (3) years for burglary.
However, the transcript of the sentencing hearing and the trial court’s written
sentencing order both specify that defendant received sentences of two (2) years
for each count of burglary. When there is a conflict between the court minutes or
judgment and the transcript, the transcript controls. State v. Moore, 814 S.W.2d
381, 383 (Tenn. Crim. App. 1991); State v. Davis, 706 S.W.2d 96, 97 (Tenn. Crim.
App. 1985). The judgment on Count Three must, therefore, be modified to reflect
that the sentence is two (2) years. Furthermore, the judgment on Count Two
5
incorrectly identifies the offense as misdemeanor theft. This judgment must be
modified to reflect the convicted offense as theft over $500, a Class E felony.
The judgment of the trial court is affirmed in all respects, except the case is
remanded for entry of modified judgments in accordance with this opinion.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
PAUL G. SUMMERS, JUDGE
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