State v. Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1998 SESSION March 27, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9706-CR-00201
Appellee, )
) Hamilton County
V. )
) Honorable Gary D. Gerbitz, Judge
ADRIAN D. SMITH, )
) (Sentencing)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Ardena J. Garth John Knox Walkup
District Public Defender Attorney General & Reporter
Donna Robinson Miller Marvin E. Clements, Jr.
Assistant District Public Defender Assistant Attorney General
701 Cherry Street, Suite 300 425 5th Avenue North
Chattanooga, TN 37402 Nashville, TN 37243-0493
William H. Cox
District Attorney General
Barry Steelman
Assistant District Attorney General
600 Market Street--Courts Building
Chattanooga, TN 37402
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Adrian D. Smith pled guilty to aggravated assault and resisting a stop. In
October 1996 the trial court sentenced the appellant as a Range I, standard
offender, to three years for the aggravated assault conviction and to six months
for the resisting a stop conviction. His sentences were to run concurrently. The
trial court denied the appellant’s request for an alternative sentence.
The appellant’s sole issue for our review is whether the trial court erred by
denying his request for alternative sentencing. We affirm.
Appellant contends that the trial court did not comply with Tennessee
Code Annotated § 40-35-102(5), -102(6) (Supp. 1996), which indicate that the
appellant is presumed to be a favorable candidate for alternative sentencing.
The appellant further asserts that the trial court did not consider or properly
weigh several mitigating factors under Tenn. Code Ann. § 40-35-113 (1990):
that the appellant acted under strong provocation; that substantial grounds exist
tending to excuse or justify the appellant’s criminal conduct, though failing to
establish a defense; and the appellant, because of his age, lacked substantial
judgment in committing the offense. He also argues that other factors such as
the death of his mother and stepfather; his employment history; his paying of
child support without a court order; and his change of attitude, evidenced by his
leading Bible study and giving speeches in the community, mitigate in favor of
alternative sentencing.
The state argues that the trial court properly sentenced the appellant. It
notes that the trial court found that the appellant, who was nineteen years old at
the time of sentencing, had a history of violent crimes. The appellant had
-2-
adjudications of attempted kidnapping, attempted aggravated robbery,
aggravated assault, and disorderly conduct. Although most of these offenses
were committed before the age of eighteen, the state notes that they occurred
when the appellant was not in custody, thereby indicating a disregard for the law
and a poor potential for rehabilitation. Further, the state notes that the trial court
did consider the appellant’s change in attitude, his age, and his obligations to his
family, but such factors did not outweigh the appellant’s continued criminal
behavior. The appellant was on bond for the aggravated assault offense when
he was arrested for resisting a police stop. Consequently, the trial court agreed
with the recommendation of the presentencing investigator that society needed
to be protected from the appellant.
When an appellant challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (1990). However, this presumption is conditioned on an affirmative
indication 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).
The appellant bears the burden of showing that the sentence was
improper. Id. In determining whether the appellant has met this burden, this
Court must consider (a) the evidence adduced at trial and the sentencing
hearing; (b) the presentence report; (c) the principles of sentencing; (d) the
arguments of counsel; (e) the nature and characteristics of the offense; and
(f) the appellant’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103(5) (1990), 40-35-210(b) (Supp. 1996).
The trial court did not err in denying alternative sentencing for the
appellant. The trial court based its decision on the appellant’s continued
-3-
involvement in violent criminal behavior, noting the seriousness of the crimes the
appellant had committed as a juvenile. The appellant had been in the custody of
the Department of Youth Development, had received judicial diversion for a theft
conviction, and was on bond for the aggravated assault offense when he was
arrested for resisting a stop. The trial court agreed with the presentencing
investigator that the appellant is a threat to society. Finding no error mandating
reversal, we affirm the trial court’s judgment.
-4-
_______________________
PAUL G. SUMMERS, Judge
CONCUR:
______________________________
JOHN H. PEAY, Judge
______________________________
CORNELIA A. CLARK, Special Judge
-5-