State of Tennessee v. Anthony Gentry, II

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 24, 2002
STATE OF TENNESSEE v. ANTHONY GENTRY, II
Direct Appeal from the Criminal Court for Carter County
No. S15370 Robert E. Cupp, Judge
No. E2001-02728-CCA-R3-CD
August 09, 2002
The defendant entered a negotiated plea of guilty to two counts of sale of schedule II narcotics for
agreed concurrent sentences of four years for each count, with the issue of alternative sentencing to
be determined by the trial court. The trial court sentenced the defendant to four years incarceration.
In this appeal, the defendant contends he should have received alternative sentencing. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L. SMITH,
JJ., joined.
Lanny R. Norris, Elizabethton, Tennessee, for the appellant, Anthony Gentry, II.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Joe C. Crumley, Jr., District Attorney General; and Kenneth C. Baldwin, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant sold 28 morphine tablets to a confidential informant on November 2, 2000,
and sold 37 morphine tablets to a confidential informant on November 15, 2000. He entered an
agreed plea of guilty to both Class C felonies for concurrent four-year sentences, with the issue of
alternative sentencing to be determined by the trial court. The trial court subsequently denied the
defendant’s request for alternative sentencing and sentenced him to four years incarceration.
The presentence report revealed the defendant had been convicted of seventeen prior
misdemeanors and one prior felony. Additionally, it revealed the defendant was on misdemeanor
probation when the instant offenses were committed. The defendant conceded he had previously
violated probation three times but explained he had “turned over a new leaf” while in jail awaiting
sentencing.
ALTERNATIVE SENTENCING
A. Standard of Review
This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C,
D or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).
In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
B. Trial Court’s Findings
The trial court concluded the defendant was not suitable for alternative sentencing based on
a need to protect society from his conduct; the defendant needs to be restrained due to his lengthy
criminal history; successful rehabilitation is “out of the question;” and measures less restrictive than
confinement had been unsuccessfully applied.
C. Analysis
Although a Range I standard offender convicted of a Class C felony is normally presumed
a favorable candidate for alternative sentencing, the trial court correctly concluded the presumption
was overcome because the defendant had a “criminal histor[y] evincing a clear disregard for the laws
and morals of society. . . .” Tenn. Code Ann. § 40-35-102(5). This determination is supported by
the record which establishes the 32-year-old defendant’s eighteen prior convictions. Furthermore,
the defendant has failed all “past efforts at rehabilitation.” Id. In addition to the defendant’s lengthy
criminal history, he committed the instant offenses while on probation and conceded he had prior
probation violations. These are sufficient reasons to deny alternative sentencing. See Tenn. Code
Ann. § 40-35-103(1)(A), (C). The trial court’s finding of the defendant’s bleak potential for
rehabilitation was bolstered when the defendant, immediately after reminding the trial judge that he
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had been “doing Bible study,” boldly called the trial judge a “stupid mother-faker” (spelling taken
directly from the transcript) at the conclusion of the hearing. The defendant’s insistence that the trial
court abused its discretion by denying alternative sentencing is disingenuous.
We affirm the judgment of the trial court.
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JOE G. RILEY, JUDGE
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