State v. Rogers

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1996 SESSION
April 17, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9607-CR-00268
)
) Hamilton County
v. )
) Hon. Douglas A. Meyer, Judge
)
LARRY GENE ROGERS, ) (Sentencing)
)
Appellant. )
For the Appellant: For the Appellee:
William C. Killian John Knox Walkup
Number One Oak Avenue Attorney General of Tennessee
Jasper, TN 37347 and
Michael J. Fahey, II
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
William H. Cox, III
District Attorney General
and
David W. Denney
Assistant District Attorney General
600 Market Street, Suite 310
City-County Bldg.
Chattanooga, TN 37402
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Larry Gene Rogers, was convicted upon his guilty pleas in
the Hamilton County Criminal Court of one count of theft of property valued over ten
thousand dollars, a Class C felony, and two counts of theft of property valued over one
thousand dollars, a Class D felony. Pursuant to a plea bargain, he received three
three-year sentences with the Class D felonies to be served concurrently, but
consecutively to the Class C felony. The trial court ordered that the defendant serve
eleven months, twenty-nine days in confinement, then be placed on unsupervised
probation for the remainder of the six-year effective sentence. The defendant appeals
as of right regarding his confinement, contending that the trial court erred (1) in
considering a statutory enhancement factor relative to the issue of confinement, see
T.C.A. § 40-35-114(1), (2) in not affording the defendant the statutory presumption in
favor of alternative sentencing, see T.C.A. § 40-35-102(6), and (3) in concluding that
the confinement was necessary to avoid depreciating the seriousness of the offenses.
See T.C.A. § 40-35-103(1)(B). We affirm the trial court.
Although the guilty plea hearing transcript is not before us, we determine
the following facts from the record on appeal. The defendant helped in the theft of cars
by driving an accomplice to the car to be stolen, then following him to a chop shop. At
the shop, the defendant was videotaped for two of the cars and his conversations were
taped. The defendant testified that he was paid one hundred dollars per car. The three
thefts for which he pled guilty occurred on January 28, February 17, and September 16,
1993. However, the defense acknowledged that he was involved in seven car thefts in
this manner.
Also, the record reflects that in September 1993, the defendant
accompanied an accomplice to Washington, D.C., where the accomplice burglarized a
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drug store, stealing drugs and cash. On the return trip, they stole a car in Maryland and
abandoned it in Knoxville. Ultimately, the defendant was charged with drug conspiracy
and pled guilty in federal district court in Knoxville to one count of felonious possession
of pharmaceutical drugs. The court placed him on supervised probation for five years.
The presentence report, the federal probation report and the testimony at
the sentencing hearing reflect that the defendant is a thirty-one-year old high school
dropout working at a coal company in Grundy County. He is a divorced, noncustodial
father of one daughter whom he is supporting. He is living with his mother, who he
says is a stroke victim, and he testified that he helped her with moral support, paying
some bills, and some transportation. He denied having a drug or alcohol abuse
problem.
The trial court stated that it was considering the defendant’s criminal
history in determining the manner of service of the sentences, including an alternative
form of punishment rather than confinement. It determined that the defendant was not
a serious threat to society at that time and that he had probably learned his lesson.
However, the trial court ordered confinement for eleven months, twenty-nine days
without work release because it concluded that the time was necessary to avoid
depreciating the seriousness of the offenses. Also, the trial court indicated that the
federal district court’s grant of probation occurred without knowledge that the defendant
was about to be charged relative to seven automobile thefts.
The review of the defendant’s sentencing is de novo on the record with a
presumption that the trial court’s determinations are correct. T.C.A. § 40-35-401(d). As
the Sentencing Commission Comments to this section note, the burden is now on the
defendant to show that the sentencing is improper. However, “the presumption of
correctness which accompanies the trial court’s action is conditioned upon the
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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, we must consider (1) the evidence, if any,
received at the trial and 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, (5) any mitigating or statutory
enhancements, (6) any statement that the defendant made on his behalf and (7) the
potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see
Ashby, 823 S.W.2d at 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
The defendant now contends that the trial court should not have
considered the statutory enhancement factor regarding his criminal history, see T.C.A.
§ 40-35-114(1), in determining whether to confine him. However, as we previously
indicated, T.C.A. § 40-35-210(b) provides that the trial court must consider the
applicable enhancement and mitigating factors in determining the specific sentence,
including sentencing alternatives. See State v. Hayes, 894 S.W.2d 298, 300 (Tenn.
Crim. App. 1994). The trial court properly considered the defendant’s history of criminal
conduct.
We next consider the defendant’s remaining two complaints together as
they necessarily relate to his confinement. The defendant contends that the trial court
did not give him the benefit of the presumption of alternative sentencing under T.C.A. §
40-35-102(6) and that it relied too heavily upon a concern for the offenses’ seriousness
in confining him for eleven months, twenty-nine days. We note that the trial court made
no mention of the presumption for alternative sentencing in its determinations. In fact,
we view the trial court’s limited findings on the record to be less than adequate
compliance with the 1989 Sentencing Act’s requirements for placing complete findings
and conclusions on the record for appellate review purposes. See T.C.A. §§ 40-35-
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209(c), -210(f); State v. Jones, 883 S.W.2d 597, 599-600 (Tenn. 1994); Ashby, 823
S.W.2d at 169.
However, given the trial court’s stated reason for confinement under the
record actually before us, including the trial court’s general references to relevant
sentencing provisions, we do not believe that the trial court simply ignored the
presumption of alternative sentencing. Rather, the record reflects that the trial court’s
view of the seriousness of the defendant’s offenses outweighed all other
considerations. In this respect, the record indicates that the trial court’s view stemmed
from the extent of the defendant’s criminal conduct, not from the circumstances of any
given crime. Although the facts of a particular offense may not justify confinement
under T.C.A. § 40-35-103(1)(B) in the face of the presumption for alternative
sentencing, the fact that the defendant received multiple convictions and is shown to
have committed other similar offenses can reflect sufficient criminal conduct to warrant
a conclusion that the presumption of alternative sentencing is overcome. See, e.g.,
State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991).
From our perspective, such is the case before us. In substance, although
the trial court did not provide as detailed or complete a record of findings and
considerations as is contemplated by our sentencing laws, we believe that the record
supports and justifies the sentences it imposed. The defendant acted in concert with
an automobile theft ring over a proven period of nine months with the termination of
criminal activity only occurring with his arrest on federal drug charges. Under these
circumstances, we cannot quarrel with the trial court’s sentence to confinement even
though the defendant exhibited the potential for rehabilitation and had family
responsibilities.
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In consideration of the foregoing and the record as a whole, the
judgments of conviction entered by the trial court are affirmed.
______________________________
Joseph M. Tipton, Judge
CONCUR:
___________________________
Paul G. Summers, Judge
___________________________
John K. Byers, Senior Judge
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