State v. Bunch

DAUGHTREY, Judge,

dissenting.

Because this is virtually a model case for probation and because there was no substantial evidence to support the trial court’s refusal to suspend Bunch’s entire sentence, I find that I cannot join in my colleagues’ decision to affirm the judgment below.

The majority opinion first emphasizes the petitioner’s commission of a second offense a few days after the theft involved in this case. But the petitioner’s remorse for the subsequent crime and his action in turning himself in to police evince a real basis for concluding that successful rehabilitation can be achieved in this case through a structured probation program.

The majority opinion next emphasizes that the probation report reflects (in very general terms) that the petitioner’s reputation in the community was poor. But a Smith County deputy sheriff who knew Bunch quite well testified that his reputation in the past six to eight months had undergone a “big improvement” and that Bunch was on an “upward swing.” This evidence, too, points to an excellent prospect for rehabilitation through probation.

Finally, the majority opinion mentions the trial judge’s reliance on the deterrence factor. But there is no proof in the record that this factor was properly considered by the trial court. See generally State v. Michaels, 629 S.W.2d 13 (Tenn.1982). As the majority opinion points out, the state offered no proof and, indeed, asked no questions of any of the witnesses called by the defense. Thus, there is no evidence in the record regarding the nature and degree of other crimes, if any, at Center Hill Lake, nor the need to deter them.

If the trial judge thought some incarceration would benefit the petitioner, periodic confinement on weekends or the like would have been available and appears to be a more reasonable disposition for a first offender than the sentence actually imposed. If the judge thought the petitioner owed a debt to society because of his offenses, he could have ordered Bunch to perform a specified amount of community service— trash pickup around Center Hill Lake springs readily to mind as a fitting penance for the offense Bunch committed there.

In summary, there is simply no substantial evidence that lengthy incarceration is in the petitioner’s or the public’s best interest. See generally State v. Grear, 568 S.W.2d 285 (Tenn.1978). I therefore cannot agree with the majority’s conclusion that the judgment could properly have gone in either direction and that the Grear decision supports a denial of probation in this instance. For this reason, I respectfully dissent.