State v. Philip Cantwell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1998 November 16, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9701-CC-00035
)
Appe llant, )
) MAURY COUNTY
V. )
)
) HON . JAME S L. W EATH ERF ORD ,
PHILLIP DREW CANTWELL, ) JUDGE
)
Appellee. ) (ENVIRONMENTAL VANDALISM)
FOR THE APPELLEE: FOR THE APPELLANT:
GARY M. HOWELL JOHN KNOX WALKUP
P.O. Box 442 Attorney General & Reporter
Columbia, TN 38402
ALBE RT L. P ARTE E, III
DELILAH A. SPEED Assistant Attorney General
P.O. Box 973 2nd Floor, Cordell Hull Building
Columbia, TN 38402 425 Fifth Avenue North
Nashville, TN 37243
T MICHAEL BOTTOMS
District Attorney General
ROBERT C. SANDERS
Assistant District Attorney General
JESSE DURH AM
Assistant District Attorney General
P.O. Box 459
Lawrenceburg, TN 38478
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
Phillip Drew Cantwell, the Defendant and o wner o f Can twell Enterpris es, Inc.,
was indicted by the Maury County Grand Jury on one (1) count of violating the Water
Quality Act and five (5) counts o f environm ental van dalism. Two (2) of the five (5)
counts of environme ntal vandalism were classified as Class B felon ies, two (2) were
classified as Class C felonies, and one (1) as a Class E felon y. Follow ing a ju ry trial,
the Defenda nt was convicte d of two (2) lesser grade Class D counts of
environmental vandalism a nd acquitted o f all other charges. Dallas Cantwell and
Sher ill Sanders, co-defendants, were also indicted on similar charges. Dallas
Can twell is the Defend ant’s father, and She rill Sanders was th e ma nage r of Ca ntwell
Enterprises. Both co-defendants were acquitted of all charges. Following the
sentencing hearing, the Defendant was sentenced to serve two (2) years for each
count of environmental vandalism, to be serv ed con currently. The sen tences were
suspended with Defendant placed on probation. The Defendant was also ordered
to pay $1,5 24.71 in c ourt costs . He filed a m otion for ne w trial, but it was denied
following a hearing. The Defendant did not appeal. The State appeals from the trial
court’s se ntencing order. W e affirm the judgm ent of the tria l court.
W hile the sufficien cy of the ev idence is not an iss ue, a summ ary of the fa cts
is necessary for our sentencing review. Dick Wilson, an aquatic biologist employed
by the Tennessee Wildlife Resources Agency, received a complaint on December
1, 1994, from Vance Owen who was hunting near Columbia and obse rved a poss ible
contamination problem with the water in some seep springs. On December 2, 1994,
Wilson and a field agen t, Wayn e Pressler, accompanied Owen to the seep springs
-2-
for testing and observation. These seep spring s were locate d on H enry D aimw ood’s
property. A plant operated by Cantwell Enterprises, Inc., was located up a slope
from the seep springs, and it appeared to Wilson that a large amount of discolored
water had come down the slope. There were many dead trees and vegetation in the
area. Wilson observed the plant and found ditches full of discolored water with
yellow and black stains. Wilson went to the plant and spoke with Sherill Sanders,
a co-defend ant and the p lant mana ger. Sande rs told Wilson that he was aware of
the complaints and had already taken a sample from the seep springs but had not
yet had it an alyzed.
On February 22, 1995, Wilson led in the execution of a search warrant at the
Can twell Enterprises, Inc., plant during which liquid and solid samples were taken.
Industrial wastes from three (3) different directions were observed by Wilson as
flowing through a series of hoses, ditches and spillways towards the dead zone of
vegetatio n and tre es.
Gordon Caruthers, an Environmental Specialist with the Tennessee
Department of Environmental Control (TDEC), performed an inspection of the plant
in Janua ry 1992 a nd foun d molte n sulphu r and am moniu m bisu lfite. Caruthers
spoke with the Defe ndan t as the repres entativ e for C antwe ll Enterprises, Inc.
Caruthers explained to the De fendan t the environ menta l problem s with the plant and
described the state requirements for prevention and control of environmental spills.
The Defendant responded that he would obtain the permits and construct the
containment structures as required. After Caruthers tried to demonstrate the
consequences of these spills, Defen dant indicated tha t he understoo d the dang ers
of the unla wful disch arges into the enviro nmen t.
-3-
Ann Rochelle, an environmental specialist and employee of the Water
Pollution Control division at the TDEC, visited the Cantwell plant site on January 17,
1992, pursua nt to a prior c ompla int under the W ater Qu ality Contro l Act. The plant
had no pe rmit to d ischa rge industrial wastes under th e W ater Qu ality Contro l Act.
As a result of her inspection, Rochelle sent a notice of non-compliance to the
company and asked that containment structures be built. During March 1992,
Roch elle inspe cted th e plan t on two occa sions and fo und fu rther sp ills and no
containment structures in place.
Margaret Morgan, an owner of land damaged by the s pills from the Ca ntwell
plant, testified that she gave no one permission to discharge chemicals or industrial
waste on her prope rty. She desc ribed th e prop erty as a wide strip with abso lutely
nothing, only bare dirt and gullies.
Glenn Hulen ow ns pro perty o n whic h Colu mbia Conc rete is lo cated . This
property borders the Cantwell plant to the south, west and north. Since the Cant well
plant had been in operation, Hulen noticed areas of dead vegetatio n on his p roperty
which used to be “a jungle.”
Tim Stewar t, employee of the Superfund Division of the TDEC, assessed
property damage caused by the environmental spillage from C antwe ll enterprises.
Stewart calculated the damage to be $500,000.00.
Wayne Chapman, a former employee of Cantwell Enterprises, testified that
while he worked at the plant he noticed leaking hoses around different parts of the
plant. When these hoses leaked, the containment trench around the operating block
-4-
of the plant would overflow. Chapman recalled that the Defendant was there at
times when the overflow occurred. After Chapman brought the leaking hoses to
Defe ndan t’s attention, the Defendant instructed Chapman to try to stop the leaks or
to cover them up as best as he could. Chapman worked with the Defendant to clean
out railroad tank cars. The ammonium bisulfite would be either poured out of the
trucks on to the gro und or p umpe d up on the ban k and b lown on to the gro und.
James Robert Orr, employee of Environmental Resources Management
Southe ast, an environmental consulting firm, assessed the environmental impact of
the spillage at the Cantwell plant. In his opinion, the cost for restoration for the
Morgan property ranged from $179,342.00 to $207,044.00. The cost for the
restoration of the property owned by Glenn Hulen and Columbia Concrete was
estima ted at a ran ge of $6 9,692.0 0 to $76 ,580.00 .
When the length, range or the manner of service of a sentence is challenged,
this court has a duty to conduct a de novo review of the sentence with a presumption
that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-
35-401(d). This presumption is “conditioned upon the affirmative showing in the
record that the trial court considered the se ntenc ing prin ciples and a ll relevant fac ts
and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
In conducting a de novo review of a senten ce, this court mu st consider: (a) the
evidence, if any, received at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of senten cing and argum ents as to sentencing alternatives;
(d) the nature and characteristics of the criminal conduct involved ; (e) any statutory
mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his
-5-
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.
Tenn. Code Ann. §§ 40-35-1 02, -103 , -210; see State v. S mith, 735 S.W.2d 859,
863 (Ten n. 1987).
If our rev iew refle cts tha t the trial court followed the statutory sentencing
procedure, impo sed a lawful s enten ce afte r havin g given due consideration and
proper weight to the factors and principles set out u nder the sentencing law, and
made finding s of fac t adeq uately supported by the record, then we may not mo dify
the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,
805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).
The State a rgues that the trial court imposed the “absolute rock bottom
sentence” for Defendant to serve. The trial court ordered Defen dant to serve two (2)
concurrent sentences of two (2) years for each count of Class D environmental
vandalism. The sentencing range for a Class D felony for a Range I offender is two
(2) to four (4) years. Tenn. Code Ann. §§ 40-35-105(b), -112(a)(4). Following the
sentencing hearing, the trial court stated as follows:
Now, the law requires the court in this sentencing act to take certain
things into co nside ration in deciding how many years out of that close
range, or what period o f time out of that close ra nge that the co urt
shou ld set sentence. And really, as far as enhancement factors, the
only enhancement factor I see that would apply, that I would be
com fortable with applying, is that the offense involved more than one
victim. Of cou rse, this situation, the debris, chemical debris was
running off in fairly well all directions and I think that without question
it damaged more than one p erson . I’m sa tisfied fro m the proof th at it
did that. T hat’s really th e only en hancin g factor tha t I see.
As far as mitigating factors, of course the main one, I guess, is the fact
that there was nobody physically injured like in an aggra vated assa ult
case. These other mitigating factors set forth through the pleading filed
by the defendant, I don’t think really would be applicable.
-6-
Another thing that I’m taking into consideration is the jury didn’t fix any
fine in any of these cases, in either of these cases. The defendant has
not been previously convicted of anything that I can determine from the
pre-sen tence re port.
I’m going to impose a sentence of two years in each of these cases and
in considering whether or not these sentences should run co nsecutive
or concurrent, again, in looking at the matters that the court has to take
into consideration, I really don’t find any of the factors set forth in the
40-35-115 that would app ly, so I’m going to let those sentences run
concurren tly.
As far as th e cos t for the p repar ation o f this ca se, the court w ill take into
consideration the fact tha t there w ere oth er cou nts ag ainst th is
defendant that he was acquitted on. I’m going to take into
consideration the fact that there were two other defen dants that were
totally acquitted and I’m really not familiar with requiring a defen dant to
pay the cost for preparation for this type suit. I do n’t think that the re’s
been all that m any su its of this sort in th is state . I would be inclined to
require this defendan t to pay $10,000.00 in the expenses or preparation
or whatever you want to call it, if there can be any authority submitted
to me by the State where that’s been done and approved in any
criminal case. T his, of cou rse, is an u nusua l case. We had a lot of
technical witnesses, chemists and those type people and I know that it
was tremendously expensive. If the State can find me any proof that
I think would substantiate him paying $10,000.00 toward these
expenses in bringing this thing to court, then I would req uire that as part
of his probation.
Our review of this se ntenc e is de novo, without a presumption of correctness,
as the trial court did not specify the weight afforded to the enhancing and mitigating
factors, nor did it discuss all the enhancement factors as urged by the State at the
sentencing hearin g. In ad dition, th ere is no m ention in the record of the factors the
trial court relied upon in granting the Defendant full probation as an alternative
sentence. In dete rminin g the le ngth o f the D efend ant’s s enten ce, the trial court
relied upon the evidence at trial and the sentencing hearing . The trial court relied
upon the pre-sentence report in determining that the Defendant had no prior criminal
record. As the D efendant is a sta ndard offender convicted of Class D felonies, he
-7-
was presu med to be a favora ble candidate for alternative sentencing options. Tenn.
Code Ann. § 4 0-35-10 2(6).
The trial court found that the offense involved more than one (1) victim as the
environmental spill clea rly affected more than one (1) person. Tenn . Code Ann. §
40-35-114 (3). This enhancem ent factor was a pplied erroneo usly as there we re
separa te convictions for each victim. State v. Hoyt, 928 S.W.2d 935, 948 (Tenn.
Crim. App. 1995 ) (citing State v. Lam bert, 741 S.W.2d 127, 134 (Tenn. Crim. App.
1987)). It is not appro priate in this c ase to count as “victims” those who were named
in counts o f the indictm ent whe re Defe ndant w as acq uitted. After finding that no
other enha ncem ent fac tors ap plied, the trial court reasoned that no one was
physic ally injured during the com mission of the crim inal offens es. Tenn. Code Ann.
§ 40-35-113(1). The trial court also determined that the Defendant had no prior
convictions. Tenn. Code Ann. § 40-35-113(13). The trial court considered the fact
that the jury did not fine the Defendant as a cond ition of h is convictions, but we do
not place muc h weig ht upo n this factor. While Defendant urged that other mitigating
factors were applicable, the trial court did not agree.
The State urg es that fou r (4) other e nhanc emen t factors ap ply. First, the
State argues that Defendant was a leader in the commission of an offense involving
two (2) or more crim inal actors becau se his em ployees were dire cted to make illegal
environmental discharges. Tenn. Code Ann. § 40-35-114(2). The application of
enhancement factor 2 contemplates on offense involving two (2) or more criminal
actors. State v. Carter, No. 03C01-9603-CC-00102, Greene Coun ty, slip op. at 11
(Tenn. Crim. App., at Knoxville, March 4, 1997) (No Rule 11 application filed)
-8-
(citations omitted). As reflected in the jury’s verdict, this offense involved only one
(1) crimin al actor, the Defen dant.
In light of the additional crimes with which Defen dant wa s charg ed, the S tate
argues that Defendant’s criminal behavior shou ld resu lt in the e nhan cem ent of h is
sentence. Ten n. Co de An n. § 40 -35-1 14(1) . The S tate urg es this court to consider
the case of State v. Carico, _____ S.W.2d _____, No. 03S01-9610-CR-0009,
Hawkins County (Tenn ., at Knoxville, December 29, 1997), as authority that
Defe ndan t’s prior criminal behavior for which there has been no conviction may be
used to enhance a sentence. In Carico, the defend ant was a ccus ed of m ultiple
incidences of sexual abuse. The defendant was ultimately convicted of only one (1)
offense per time period as alleged in the indictment and the court held that other
incidences of condu ct could b e used to enha nce the senten ce. Carico, slip op. at
17. However, in the case sub judice, the jury was allowed to consider other
incidences of criminal conduct as alleged in the indictments and found Defendant not
guilty. Mere charges are not considered prior criminal behavio r. State v. Buck meir,
902 S.W.2d 418, 424 (Tenn. Crim. App. 1995). Defendant was not convicted of
those incidences of criminal conduct for which he was charged and tried and found
not guilty. Therefore, it would have been improper for the trial court to use them in
enhan cing the D efenda nt’s sente nce.
The State also urges this court to find that the amount of property taken from
the victims was particularly great. Tenn. Code Ann. § 40-35-114(6). The trial court
declined to apply this factor on the basis that the jury failed to fix any fines against
the Defendant. Testimony was given that the damage to property relevant to the two
(2) convictions approached $280,000.00. In light of the proof in the record of the
-9-
amount of damage done to the properties involved, this enhancement factor shou ld
have be en app lied.
Finally, the State argues that the Defendant abused a special skill in a manner
that significantly fa cilitated the c omm ission of the offenses . Tenn. Code Ann. § 40-
35-114(15 ). The State contends that the Defendant’s edu cation and e xpertis e in
using chem icals prove s he “kne w better th an to do as he did .” While Defendant may
have specialized knowledge regarding the manufacturing of chemicals, there is no
evidence in the record that his skill was so specialized as to facilitate the commission
of the acts o f environm ental van dalism. T he State cites the ca se of State v. Candler,
728 S.W.2d 756 (Tenn. Crim. App. 1986), in which the defendant businessman
wrote worthless checks used to defraud a bank. In addition to the fact tha t Candler
was decided prior to the 1989 Sentencing Act, the State’s relianc e is misplac ed. In
Candler, the court held that the Defendant’s conduct in writing the worthless checks
was in reckless disregard of the interests of stockholders, depositors, and borrowers.
Id. at 762 . Beca use th at defe ndan t took a dvant age o f a spe cial trus t, this conduct
justified conse cutive sentences. Id. Candler does n ot deal with the issue that a
defen dant’s abuse of a special skill justifies the application of enhancement factor
(15).
The State also filed supplemental authority supporting their argument that
Defendant abuse d a spe cial skill. See U.S. v. Roggy, 76 F.3d 18 9 (8th Cir. 1996).
In Roggy, the defendant was an expert in pesticides an d utilized his knowle dge to
use a prohibited pesticide which was financially beneficial to him. In the case sub
judice, the De fenda nt did not use any special expertise in committing these offenses.
In fact, the Defend ant’s actions we re committed openly such that the State filed a
-10-
non-compliance complaint against him three (3) years prior to the execution of the
search warrant which led to criminal charges. Defendant did not use any special
knowledge to conce al his acts, th erefore, Roggy is distinguis hable. In any event, the
ruling in Roggy does not bind this court. The United States Supreme Court is the
only federal court Tenn essee cou rts are bound to follow. See State v. McKay, 680
S.W .2d 447 , 450 (T enn. 19 84); cert. denied, 105 S.C t. 1412 (1 985).
The State then argue s that probation w as an inapp ropriate alternative
sentence given the type o f crime D efenda nt com mitted. A defend ant sen tenced to
eight (8) years or less who is not an offender for who m inc arcera tion is a priority is
presumed eligible for alternative sentencing unless sufficient evidence rebuts the
presumption. Rebuttal evidence includes:
A) Conf inement is necessary to protect society by restraining a
defend ant who has a lon g history of c riminal co nduct;
B) Confinem ent is necess ary 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 b een ap plied uns uccess fully to the de fendan t.
Tenn. Code Ann. § 40-35-103.
However, the act does not provide that all offenders who meet the criteria are
entitled to such relief; rather, it requires that sentencing issues be determined by the
facts and c ircum stanc es pre sente d in each case. See State v. Taylor, 744 S.W.2d
919, 922 (T enn. Crim. A pp. 1987).
In determ ining whe ther to gra nt proba tion, the trial court must consider the
nature and circumstances of the offense, the defen dant’s crimin al reco rd, his
-11-
background and social history, his present condition, including his physical and
mental condition , the deterrent effect on other criminal activity, and the likelihood that
probation is in the be st interests of both the public an d the de fendan t. Stiller v.
State, 516 S.W .2d 617 , 620 (T enn. 19 74).
W hile the defen dant on appea l usually ha s the bur den of e stablishing his
suitability for full probation and demonstrating to this court that probation best serves
the ends o f justice, the pu blic an d him self, the State a ppea ls the g rant of fu ll
probation in this case. Tenn. Code Ann. § 40-35-303(b); State v. Bingham, 910
S.W.2d 448, 455-46 (Tenn. Crim. App. 1995). The burden is thus on the appellant
to show that the sentencing in granting probation was erroneous. Tenn. Code Ann.
§ 40-35-402, Sentencing Commission Comm ents.
Defendant does not have a long history of criminal conduct nor does he need
confinement to avoid depreciating the seriou sness o f the offens e. Tenn. Code Ann.
§ 40-35-103(1). While the State contends that a sentence of incarceration would be
a deterrence to further acts of environmental damage, we see no reason to impose
a sentence of incarceration when the State has failed to point to any portion of the
record which reflects proof presented of the need for deterrence in the jurisdiction.
See State v. Zeolia , 928 S.W.2d 457, 461-62 (Tenn. Crim. App. 1996)(citations
omitted). In addition, measures less restrictive than confinement have not been
applied unsuccessfully to the Defendant. Tenn. Code Ann. § 40-35-103(1)(C). As
none of these factors apply, confinement would not have been a proper sentence
and the trial c ourt ap propr iately de termin ed tha t proba tion wo uld best serve the
interests of the Defendant and the public.
-12-
The State argues that the Defendant should be ordered by this court to pay
restitution to the victim, Margaret Morgan in the amou nt of $5,00 0.00. W e note that
a pane l of this co urt has previo usly he ld that the State does n ot have th e right to
appeal the issue of the trial cou rt’s failure to ord er restitution . See State v. Ke vin
Crespo, No. 03C01-9504-CR-00118, Sevier Coun ty, slip. op. at 1 (T enn. C rim. App .,
at Knox ville, April 29, 19 97) (No Rule 11 application filed). W e also no te that the
legislature has rece ntly enacte d Public A cts of 1998, chapter 796, effective April 23,
1998 allowing the State to appeal the trial court’s fa ilure to orde r the Defe ndant to
make reasonable restitution. In the case sub judice, and based upon the record
availab le to us, we cann ot conclude th at the trial court erred or a bused its discretion
in declining to order re stitution.
The State also argues that the trial court erred by not ordering the Defendant
to pay “cos ts of enforc emen t.” The State specifically asked for the cost of
enforcement reimbursement in the amount of $49,623.18. The State cites
Tennessee Code Annotated section 40-35-303(d)(9) in support of this issue and
argues that “cost of enforcement” as a condition of probation is “reasonably related
to the purpose of the offender’s sentence and not unduly restrictive of the offe nder’s
liberty, or incompatible with the offender’s freedom of conscience, or otherwise
prohibited by this cha pter.” Tenn. C ode Ann . § 40-35-303 (d)(9).
Among the costs of prosecution which the State says should be reimbursed
by the Defendant are hourly wages of various Tennessee Wildlife Resources Agency
employees, mileage costs for agency vehicles, airplane, and video and still pictures.
Likewise, costs of laboratory and salary costs o f other w itness es we re inclu ded in
the total of $49,623.18. It is the opinion of this court that Tennessee Code
-13-
Annotated section 40-35-303(d)(9) does not authorize the relief sought by the State,
as that statute does not give unfettered authority to trial courts to place conditions
of probatio n upon a defen dant. See State v. Burd in, 924 S.W.2d 82, 87 (Tenn.
1996). Of course, a defendant could still ne gotiate a p lea agre emen t with the Sta te
that requires “cost of enforcement” to be paid as a condition of proba tion. In order
for a defendant absent a negotiated plea agreement to be ordered to pay the S tate
the costs of prosecuting the case as a condition of probation, we feel that this is a
matter more appro priately addre ssed in specific legislation by the G enera l Asse mbly
and not by judicial interpretation of Tennessee Code Annotated section 40-35-
303(d)(9).
Even if that statute could be held to authorize the required condition of
probation sought by the State, we feel that the State failed to put sufficient proof
forward to mak e this reas onably re late to the c onvictions for which D efenda nt has
been placed on probation. He was charged with seven (7) counts and found not
guilty of five (5) of those counts. The two (2) convictions were of lessor grade
offenses. Two co-defendants were acquitted of all charges against them, which
were apparently the identical charges placed a gainst the Defen dant. While the trial
court stated that it wo uld order the Defendant to pay $10,000.00 towards the cost of
reimbursement if the State c ould cite any app ropriate leg al author ity authorizing the
trial court to do so, this figure of $10,000.00 is not supported by any proof in the
record.
Upon our conclusion that one enhancement factor found by the trial court was
erron eous ly applied, b ut that ano ther enhancement factor should have been applied,
-14-
and the finding of mitigating factors wa s appropriate, up on our de novo review of the
senten ce, we a ffirm the jud gmen t of the trial cou rt.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID H. WELLES , Judge
___________________________________
JERRY L. SMITH, Judge
-15-