State v. Woods

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
APRIL SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9707-CC-00272
)
Appellee, )
)
) BLOUNT COUNTY
VS.
RAYMOND E. WOODS,
)
)
)
FILED
HON. D. KELLY THOMAS, JR.
JUDGE
) July 7, 1998
Appe llant. ) (Direct Appeal - Denial of Probation)
Cecil Crowson, Jr.
Appellate C ourt Clerk
FOR THE APPELLANT: FOR THE APPELLEE:
SHAWN GRAHAM JOHN KNOX WALKUP
Office of the Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37804 ELLEN H. POLLACK
Assistant Attorney General
GERALD L. GULLEY, JR. 425 Fifth Avenu e North
(On App eal Only) Nashville, TN 37243
P. O. Box 1708
Knoxville, TN 37901 MIKE FLYNN
District Attorney General
KIRK ANDREWS
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On Decem ber 20, 1996 , Appellant, Raym ond Woods, pled guilty to passing
a $19.40 worthless check, for which there was a $15.00 service charge. The trial
court accep ted the gu ilty plea. At the sentencing hearing, Appellant testified that
he pled guilty because he had missed work often to come to court, and he
“wanted to try to get it over with.” The trial court asked who had written the check,
and Appellant responded that he did not know. Appellant’s testimony was that
someone had s tolen h is chec ks an d forge d his name, but he did not know who
had done so. He also testified that the payee of the check had not don e any work
for him. An employee of the payee identified Appellant as the person who brought
in a radiator to the business to be worked on and as the person who passed the
check. Appellant then made a motion to withdraw his guilty plea. The trial court
denied the mo tion and s entenced Appellant to eleven months and twenty-nine
days, ninety days to be served in the county jail, the rest to be served on
probation. Appellant appeals from the denial of his motion and from the denial of
full probation.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. Withdrawal of the Guilty Plea
Initially, Appella nt challen ges the trial court’s de nial of his m otion to
withdraw the guilty plea. An accused is not entitled to withdraw a plea of guilty as
a matter o f right. State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App.
1995)(citing State v. Anderson, 645 S.W.2d 251, 253-54 (Tenn. Crim.
-2-
App.198 2); 8A Moore's Federal Practice § 32.09[1] at p. 32-87 (1991
Revision)).Whether the accu sed sh ould be permitte d to withdraw a plea of g uilty
is a question that is addressed to the sound discretion of the trial court regardless
of when the motion is filed. Id. at 355 (citing Henning v. State, 201 S.W.2d 669,
671(Tenn. 1947); State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim . App. 1986 ),
per. app. denied (Tenn .1986); State v. Anderson, 645 S.W.2d at 254(Tenn. Crim.
App. 1982)). A n appe llate court w ill not interfere with the exercis e of this
discretion unless clear abuse appears on the face of the record. Id. at 355 (citing
Henning v. State, 201 S.W .2d at 671 ; State v. Drake, 720 S.W.2d at 799; State
v. Anderson, 645 S.W.2d at 254). On this record, we cannot find that the trial
court in any way abused its discretion in denying Appellant’s motion. This issue
is without m erit.
II. Sentence of Confinement
Appellant also argues that the trial court erred in sentencing him to nin ety
days in jail and no t to a sentence of full probation. When a defendant complains
of his or her sentence, we must conduct a de novo review with a presumption of
correctness. Tenn. Code Ann. § 40-35-401(d). The burden of showing that the
sentence is improper is up on the app ealing party. Tenn. Code Ann. § 40-35-
401(d) Senten cing Co mm ission C omm ents. This pre sum ption, h owev er, is
conditioned upon an affirmative showing in the re cord that the trial court
considered the se ntenc ing prin ciples and all the relevant facts and
circum stance s. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
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The Sentencing Reform Act of 1989 established specific procedures which
must be followed in sentencing. These procedures, codified at Tennessee Code
Annotated § 40-35-210, mandated the court’s consideration of the following:
(1) The evidence, if any, received at the trial and the
sentencing hearing ; (2) [t]he pres entenc e report; (3) [t]he
principles of senten cing and argum ents 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 his own b ehalf
about sentencing.
Tenn. Code Ann. § 40-35-210. The Sentencing Reform Act also provides that the
trial court shall place on the record either orally or in writing what enhancement
or mitigating factors it found, if any. These findings are crucial for review of the
trial court’s decision upon appeal. The Act further provides that a defendant who
receives a sentence of eight years or less and who is not among those for whom
incarceration is a priority is presumed to possess capabilities for rehabilitative
alternative s entenc ing option s. State v. Ashby, 823 S.W .2d 166 (Te nn. 1991).
In the matter sub judice, the trial court found that Appellant’s prior
instances of passing worthless checks indicative of the unlikelihood of Appellant
being rehabilitated. T he cou rt further foun d that Ap pellant’s un willingnes s to
accept responsibility for his crime indicated that Appellant had not “made the first
step in being rehabilitated.” The trial court a ccord ingly set Appellant’s sentence
to include confinem ent. This issue is with out me rit.
Accordingly, the judgment of the trial court is affirmed.
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____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
J. CURWOOD WITT, JR., JUDGE
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