State v. Berry Bowls ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION
FILED
April 1, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9703-CR-00090
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
BERRY BOWLS, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
EDWARD G. THOMPSON KENNETH RUCKER
Asst. Public Defender Asst. Attorney General
201 Poplar, Suite 201 425 Fifth Ave. North
Memphis, TN 38103 Nashville, TN 37243-0493
(On Appeal)
JOHN W. PIEROTTI
TERESA JONES District Attorney General
Asst. Public Defender
(At the Hearing) PERRY HAYES
Asst. District Attorney General
201 Poplar, Suite 301
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted on February 15, 1996, for the aggravated
assault of his girlfriend, Jerlean Irvin. On August 26, 1996, he pled guilty to simple
assault and agreed to a sentence of eleven months, twenty-nine days. He also agreed
to pay a fifty dollar ($50) fine. Following a sentencing hearing, the trial court ordered the
defendant to serve his sentence in the Shelby County Correction Center. The defendant
now appeals and argues that the trial court erred by not suspending his sentence.
After a review of the record and applicable law, we find that the trial court
did not err in denying the defendant’s request for probation. The judgment of the court
below is affirmed.
The defendant’s conviction stemmed from a violent argument he had with
the victim. The defendant and the victim had consumed two bottles of wine when their
argument began. Ultimately, the defendant hit the victim with a milk crate and the victim
fell to the floor, suffering bruises and a broken arm.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A.
§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “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).
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T.C.A. § 40-35-103 sets out sentencing considerations which are guidelines
for determining whether or not a defendant should be incarcerated. These include the
need “to protect society by restraining a defendant who has a long history of criminal
conduct,” the need “to avoid depreciating the seriousness of the offense,” the
determination that “confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses,” or the determination that “measures less
restrictive than confinement have frequently or recently been applied unsuccessfully to
the defendant.” T.C.A. § 40-35-103(1).
In determining the specific sentence and the possible combination of
sentencing alternatives, the court shall consider the following: (1) any evidence from the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and the arguments concerning sentencing alternatives, (4) the nature and characteristics
of the offense, (5) information offered by the State or the defendant concerning
enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the
defendant’s statements in his or her own behalf concerning sentencing. T.C.A.
§ 40-35-210(b).
Unlike the felon, the misdemeant is not entitled to the presumption of a
minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).
When determining the percentage of the sentence to be served in actual confinement, the
trial court must comply with the purposes and principles of the Criminal Sentencing
Reform Act of 1989. T.C.A. § 40-35-302(d).
While a sentencing hearing is not mandatory for misdemeanor sentencing,
one was held in this case. At the hearing, the defendant testified that he and his girlfriend
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began to argue after they had shared two bottles of wine. He said that he pushed her first
and the argument culminated with his hitting the victim with a milk crate. She fell to the
floor and suffered bruises and a broken arm. The defendant testified that his violent
behavior must have been a result of his mixing alcohol with his medication, Dilantin. He
told the court that he was a good person and that he would not behave in that manner
ever again. He stated that he had “straightened [his behavior] out.” He further testified
that he continues to date the victim and that she has forgiven him. However, he also said
that he continues to consume alcohol, mainly on the weekends.
The defendant testified that he is employed through a friend of his that
performs contracting work. He said he has been working for his friend “off and on” for six
or seven years. He also testified that he had been convicted of grand larceny in 1970
even though his presentence report reflected no previous convictions. No other witnesses
testified.
The defendant complains that the court should not have denied his request
for probation. In determining whether the defendant should be granted probation, the
court must consider the defendant’s criminal record, social history, present physical and
mental condition, the circumstances of the offenses, the deterrent effect upon the criminal
activity of the accused as well as others, and the defendant’s potential for rehabilitation
or treatment. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993).
In this case, the trial judge denied probation on the basis of the serious
nature of the victim’s injury and the fact that the assault was unprovoked. He also noted
that the defendant’s abuse of alcohol prohibited him from being a good candidate for
incarceration only on the weekends. The judge opined that neither society nor the
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defendant would benefit from an award of probation for the defendant. He further noted
that the defendant had missed three court dates1 which indicated that the defendant would
likely be unable to comply with the requirements of probation.
The evidence presented in the presentence report fully supports the trial
court’s findings. Furthermore, these findings clearly support the trial court’s conclusion
that probation is not proper for this defendant at this time. However, we note that the
defendant may again petition the trial court for probation after a period of no less than two
months. T.C.A. § 40-35-314(c). The judgment of the trial court is therefore affirmed.
__________________________________
JOHN H. PEAY, Judge
CONCUR:
_______________________________
JOSEPH B. JONES, Judge
_______________________________
THOMAS T. WOODALL, Judge
1
At the sentencing hearing, Bowls admitted that he missed a general sessions court date on
September 5, 1995, his arraignment hearing on April 1, 1996, and his trial court date on August 21,
1996.
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