State v. Jeffrey Stiddum ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
October 6, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9709-CC-00421
Appellee, )
) WILLIAMSON COUNTY
VS. )
) HON. DONALD P. HARRIS,
JEFFREY C. STIDDUM, ) JUDGE
)
Appellant. ) (Attempted Aggravated Burglary,
) 7 Counts Aggravated Burglary,
) Theft Over $1,000, 4 Counts
) Theft Over $500, Theft Under
) $500)
FOR THE APPELLANT: FOR THE APPELLEE:
C. DIANE CROSIER JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
407 C. Main street
P.O. Box 68 LISA A. NAYLOR
Franklin, TN 37065-0068 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR.
District Attorney General
LEE DRYER
Assistant District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED
LEE MOORE,
SPECIAL JUDGE
OPINION
The appellant, Jeffrey C. Stiddum, was indicted by the Williamson County
grand jury on February 10, 1997, as follows:
1. One count of attempted aggravated burglary in Case No. I-297-73.
2. One count of aggravated burglary and two counts of theft of property
with a value of more than $500.00 in Case No. I-297-74.
3. One Count of aggravated burglary and two counts of theft of property
with a value of more than $500.00 in Case No. I-297-75.
4. One count of aggravated burglary and two counts of theft of property
with a value of more than $500.00 in Case No. I-297-76.
5. One count of aggravated burglary in Case No. I-297-77.
6. One count of aggravated burglary and two counts of theft under
$500.00 in Case No. I-297-78.
7. One count of aggravated burglary and two counts of theft of property
with a value of more than $500.00 in Case No. I-297-79.
8. One count of aggravated burglary and two counts of theft of property
with a value of more than $1,000.00 in Case No. I-297-80.
The state filed a notice of intent to seek enhanced punishment. On July 14,
1997, the appellant entered a plea of guilty as a Range II Multiple Offender to
charges as follows:
1. Attempted Aggravated Burglary in Case No. I-297-73.
2. Aggravated burglary and theft of property with a value of more than
$500.00 in Case No. I-297-74.
3. Aggravated burglary and theft of property with a value of more than
$500.00 in Case No. I-297-75.
4. Aggravated burglary and theft of property with a value of more than
$500.00 in Case No. I-297-76.
5. Aggravated burglary in Case No. I-297-77.
6. Aggravated burglary and theft of property with a value of less than
$500.00 in Case No. I-297-78.
7. Aggravated burglary and theft of property with a value of more than
$500.00 in Case No. I-297-79.
8. Aggravated burglary and theft of property with a value of more than
$1,000.00 in Case No. I-297-80.
A sentencing hearing was held on July 28, 1997. The trial court sentenced
appellant as a Range II Multiple Offender as follows:
1. Six (6) years for attempted aggravated burglary in Case No. I-297-73.
2. Eight (8) years for aggravated burglary and three (3) years for theft of
property with a value of more than $500.00 in Case No. I-297-74.
3. Eight (8) years for aggravated burglary and three (3) years for theft of
property with a value of more than $500.00 in Case No. I-297-75.
4. Eight (8) years for aggravated burglary and three (3) years for theft of
property with a value of more than $500.00 in Case No. I-297-76.
5. Eight (8) years for aggravated burglary in Case No. I-297-77.
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6. Eight (8) years for aggravated burglary and eleven (11) months and
twenty-nine (29) days for theft of property with a value of less than
$500.00 in Case No. I-297-78.
7. Eight (8) years for aggravated burglary and three (3) years for theft of
property with a value of more than $500.00 in Case No. I-297-79.
8. Eight (8) years for aggravated burglary and six (6) years for theft of
property with a value of more than $1,000.00 in Case No. I-297-80.
The trial court ordered the six (6) year sentence for Count One in Case No.
I-297-73 to run consecutively to the effective eight (8) year sentence imposed in
Case No. I-297-74, and consecutively to the sentence imposed in Case No. I-894-
227, for an effective fourteen (14) year sentence on all these offenses. The
remaining sentences were to run concurrently to each other and with the appellant's
other sentences from Rutherford and Sumner Counties. The appellant filed a notice
of appeal on September 16, 1997.
The appellant contends that the trial court erred in that the sentence imposed
was excessive. For the reasons stated hereinafter, the judgment of the trial court
is affirmed.
SENTENCING - STANDARD OF REVIEW
This Court's review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-25-401(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
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-
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210, to consider the following factors in sentencing:
(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) evidence and
information offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6) any statement the
defendant wishes to make in his own behalf about sentencing.
If no mitigating or enhancement factors for sentencing are present, Tenn.
Code Ann. § 40-35-210© provides that the presumptive sentence shall be the
minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d
785, 888 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court
should start at the minimum sentence, enhance the minimum sentence within the
range for enhancement factors and then reduce the sentence within the range for
the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for
each factor is prescribed by the statute, as the weight given to each factor is left to
the discretion of the trial court as long as the trial court complies with the purposes
and principles of the sentencing act and its findings are supported by the record.
State v. Moss 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,
848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995); See Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.
Nevertheless, should there be no mitigating factors, but enhancement factors are
present, a trial court may set the sentence above the minimum within the range.
Tenn. Code Ann. § 40-35-210(d); See Manning v. State, 883 S.W.2d 635, 638
(Tenn. Crim. App. 1994).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after giving due consideration and proper
weight to the factors and principles set out under sentencing law, and the trial
court's findings of fact are adequately supported by the record, then we may not
modify the sentence even if we would have preferred a different result. State v.
Fletcher, 805 S.W.2d at 789.
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SENTENCING - CONFINEMENT
Under the 1989 Sentencing Act, sentences which involve confinement are
to be based on the following considerations contained in Tenn. Code Ann. § 40-35-
103(1):
(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.
See State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v.
Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
CONSECUTIVE SENTENCING
A court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that:
(1) the defendant is a professional criminal who has knowingly
devoted himself to criminal acts as a major source of livelihood;
(2) the defendant is an offender whose record of criminal activity is
extensive;
(3) the defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result
of an investigation prior to sentencing that the defendant's
criminal conduct has been characterized by a pattern of repetitive
or compulsive behavior with heedless indifference to
consequences;
(4) the defendant is a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation about
committing a crime in which the risk to human life is high;
(5) the defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between
the defendant and victim or victims, the time span of defendant's
undetected sexual activity, the nature and scope of the sexual
acts and the extent of the residual, physical and mental damage
to the victim or victims;
(6) the defendant is sentenced for an offense committed while on
probation; or
(7) the defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b); see also State v. Black, 924 S.W.2d 912 (Tenn.
Crim. App. 1995). Furthermore, the court is required to determine whether the
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consecutive sentences (1) are reasonably related to the severity of the offenses
committed; (2) serve to protect the public from further criminal conduct by the
offender; and (3) are congruent with general principles of sentencing. State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
FACTS
Prior to the sentencing hearing, the State filed an intent to seek enhanced
punishment as a Multiple Range II Offender setting out prior felony convictions for
two (2) aggravated burglaries and five (5) thefts of property over a value of
$1,000.00.
At the time of the sentencing hearing the appellant was serving a six year
sentence from a Rutherford County conviction. He was awaiting sentencing in
Sumner and Davidson County. He also admitted to probation violations in
Williamson and Davidson County. At the sentencing hearing the appellant testified
that the information in the presentence report was correct. He indicated also that
the memorandum prepared by the Public Defender for the sentencing hearing was
also correct. Appellant testifed as to his employment status prior to his most recent
confinement. He indicated that he had a drug problem and that he wanted to be
able to provide Christmas for his family.
The trial court found two (2) enhancing factors. Appellant was found to have
a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range. The trial court also found as an
enhancing factor that the subject offenses were committed while appellant was on
probation.
The trial court found as mitigating factors that the actions of the appellant did
not threaten serious bodily injury and also that the appellant provided some
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assistance in locating some of the property. The trial court also found that the
appellant had pleaded true to a violation of his probation of a sentence from
Williamson County. These mitigating factors were not given much weight by the
trial court.
The trial court then considered T.C.A. § 40-35-115 (b) (1) and (6). Trial
court found that the appellant was a professional criminal who had knowingly
devoted his life to criminal acts as a major source of livlihood and further that the
appellant was being sentenced for offenses committed while he was on probation.
As stated above, the appellant was given an effective fourteen (14) year sentence
with consecutive sentencing.
CONCLUSION
The trial court followed the guidelines of the Sentencing Reform Act of
1989. The court correctly found appropriate enhancing factors and mitigating
factors as set out above. The court obviously placed more weight on the enhancing
factors. The court then employed sentencing considerations of T.C.A. § 40-35-103.
The appellant was properly sentenced as a Multiple Range II Offender. Appropriate
sentence ranges were established, and the court correctly found appropriate bases
under T.C.A. §40- 35-115 (b) for establishing consecutive sentences. The sentence
imposed by the trial court was appropriate. The judgment of the trial court is
affirmed.
LEE MOORE, SPECIAL JUDGE
CONCUR:
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JOE G. RILEY, JUDGE
CURWOOD WITT, JUDGE
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9709-CC-00421
Appellee, )
) Williamson County Nos. I-297-73 -
vs. ) I-297-80
)
) (Attempted Aggravated Burglary,
JEFFREY C. STIDDUM, ) 7 Counts Aggravated Burglary,
) Theft Over $1,000, 4 Counts
Appellant. ) Theft Over $500, Theft Under
) $500)
)
) AFFIRMED
JUDGMENT
Came the appellant, Jeffrey C. Stiddum, by counsel, and the state, by the
Attorney General, and this case was heard on the record on appeal from the
Circuit Court of Williamson County; and upon consideration thereof, this Court is
of the opinion that there is no reversible error in the judgment of the trial court.
It is, therefore, ordered and adjudged by this Court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Circuit Court of
Williamson County for execution of the judgment of that court and for collection of
costs accrued below.
It appears that appellant is indigent. Costs of appeal will be paid by the State
of Tennessee.
Per Curiam
Lee Moore, Special Judge
Joe G. Riley, Judge
Curwood Witt, Judge
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