State v. Anthony Borg ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 2000 Session
STATE OF TENNESSEE v. ANTHONY BORG
Appeal from the Criminal Court for Putnam County
No. 98-0323 Leon C. Burns, Jr., Judge
No. M1999-02360-CCA-R3-CD Filed November 3, 2000
Defendant, Anthony Borg, pled guilty to one count of burglary and was sentenced by the trial
court to a term of four years in the Department of Correction. On appeal, the defendant raises
two issues: (1) whether the trial court erred by imposing the maximum sentence; and (2) whether
the trial court erred in denying the defendant alternative sentencing. The judgment of the trial
court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE
OGLE , JJ., joined.
David Neal Brady, District Public Defender; and H. Marshall Judd, Assistant District Public
Defender, Cookeville, Tennessee, for the appellant, Anthony Borg.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
William Edward Gibson, District Attorney General; and David A. Patterson, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Defendant, Anthony Borg, was indicted on one count of burglary and one count of theft over
$1,000. The defendant pled guilty to one count of burglary, and the theft charge was dismissed. The
defendant received a four-year sentence. The defendant challenges the length of the sentence and
the trial court’s denial of alternative sentencing. We affirm the judgment of the trial court.
FACTS
The defendant was employed by the City of Cookeville. On July 17, 1998, the defendant
entered the shop at the housing authority and stole some tools and two-way radios. The defendant
gained entry by using keys with which he had been entrusted.
At the sentencing hearing the defendant testified that he had a history of drug and alcohol
abuse. The defendant claimed that he was under the influence at the time of the burglary and did not
remember committing the burglary.
LENGTH OF SENTENCES IMPOSED
The defendant contends that the trial court erred by imposing the maximum sentence. 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). The burden is upon the
appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing
Commission Comments.
The defendant does not contend that the trial court failed to consider mitigating factors. A
review of the sentencing transcript reveals that the trial court noted the following: (1) the defendant
did not cause or threaten serious bodily injury; (2) the defendant “might have been intoxicated”
when he committed the offense; and (3) the defendant received drug/alcohol treatment. See Tenn.
Code Ann. § 40-35-113(1) and (13). The trial court did not give any weight to these factors,
however.
The trial court also applied the following enhancement factors in reaching its sentencing
determination: (1) the defendant had a prior criminal history; (2) the defendant previously committed
a felony while on parole; (3) the defendant was on parole and probation at the time of the offense;
and (4) the defendant violated a position of public trust. See Tenn. Code Ann. § 40-35-114(1), (8),
(13) and (15). The trial court gave “heavy weight” to the enhancement factors.
The record reveals the defendant had the following prior convictions: two residential
burglaries in Michigan, DUI, disorderly conduct, assault and public intoxication. He had a prior
revocation of parole in Michigan and was on misdemeanor assault probation at the time of the instant
offense. The trial court applied the violation of public trust enhancement factor because the
defendant utilized his work key to gain entrance into the building.
The weight given to mitigating and enhancing factors is left to the sound discretion of the
trial court. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986). We do note, however, that the record
does not show that the defendant was on parole at the time of the instant offense. The record further
shows that he was only on misdemeanor probation at the time of the offense. Thus, enhancement
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factor (13) was inapplicable. Nevertheless, there was ample basis to impose the four-year sentence.
We are unable to conclude that the trial court abused its discretion in assessing the maximum four-
year sentence.
ALTERNATIVE SENTENCING
The defendant contends that the trial court erred in denying him probation or alternative
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 Ashby, 823 S.W.2d at 169.
In determining whether an alternative sentencing option was appropriate for the defendant,
the trial court examined several factors. The trial court stated that the defendant’s criminal history,
the fact that the defendant was on probation at the time he committed the instant offense, and the fact
that he committed a previous felony while on parole were “indication[s] ... that [the defendant]
doesn’t take seriously the release into the community on restrictions and conditions.” We agree.
While the defendant is presumed to be a favorable candidate for alternative sentencing under
Tenn. Code Ann. § 40-35-102(6), the sentencing transcript reflects that defendant has a long history
of criminal conduct and past efforts at parole and probation have failed. See Tenn. Code Ann. § 40-
35-103(1)(A) and (C). The trial court did not err in denying the defendant alternative sentencing.
CONCLUSION
We conclude that the trial court did not err in the length of the sentence it imposed, nor in
denying the defendant alternative sentencing. The judgment of the trial court is affirmed.
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JOE G. RILEY, JUDGE
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