State v. Vance Ruffin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
FILED
March 2, 1998
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
APPELLEE, )
) No. 02-C-01-9612-CR-00445
)
) Shelby County
v. )
) John P. Colton, Jr., Judge
)
) (Sentencing)
VANCE S. RUFFIN, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
William D. Massey John Knox Walkup
Attorney at Law Attorney General & Reporter
3074 East Street 425 Fifth Avenue, North
Memphis, TN 38128 Nashville, TN 37243-0497
Deborah A. Tullis
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Dawn Doran
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED:________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Vance S. Ruffin (defendant), was convicted of facilitating the felony
of vehicular homicide, a Class D felony, and facilitating the felony of vehicular assault, a
Class E felony, following his plea of guilty to each offense. The trial court sentenced the
defendant pursuant to a plea agreement. The defendant was sentenced as a Range I
standard offender. The sentences imposed were: (a) a fine of $500 and confinement for
two (2) years in the Shelby County Correctional Center for facilitating vehicular homicide,
and (b) confinement for one (1) year in the Shelby County Correctional Center for
facilitating vehicular assault. The sentences are to be served concurrently. One issue is
presented for review. The defendant contends the trial court abused its discretion by
refusing to impose an alternative sentence. After a thorough review of the record, the
briefs submitted by the parties, and the law governing the issue presented for review, it is
the opinion of this court that the judgment of the trial court should be affirmed. The
defendant has failed to establish the trial court’s refusal to impose an alternative sentence
was erroneous.
On December 3, 1994, the defendant and Sanford C. Jackson (Jackson), a co-
defendant, went to the home of Susan and Leo Delatory. When they arrived, both Jackson
and the defendant were highly intoxicated as a result of consuming alcoholic beverages.
The Delatorys left with Jackson and the defendant in the defendant’s vehicle. The
defendant was driving. They stopped at a convenience store to purchase beer. Leo
Delatory asked the defendant if he could drive since he and Jackson were both intoxicated.
Jackson was driving the defendant’s vehicle when they left the convenience store.
Both the defendant and Jackson were “playing” with the steering wheel in an attempt to
scare Susan Delatory. During the course of their “playing” with the wheel, both Jackson
and the defendant grabbed the steering wheel simultaneously. As a result, the vehicle
veered left, hit a ditch, flew into the air, and landed in another ditch. The impact killed
Susan Delatory. Leo Delatory suffered serious injuries to his hands and face. These
injuries caused Leo Delatory to lose his position of employment. Jackson had a blood
alcohol content of .15% and the defendant had a blood alcohol content of .18%.
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The defendant did not present any evidence at the sentencing hearing when the trial
court was asked to impose an alternative sentence to incarceration. The defendant relied
upon the presentence report, the community corrections report, and the presumption he
was a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6).
The defendant was thirty years of age when he was sentenced. The defendant was
divorced. He has one child. The defendant lives with his parents and his son. He has a
high school education.
When the defendant challenges the manner of serving a sentence, it is the duty of
this court to conduct a de novo review of the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d). In this case, the presumption of correctness does not apply. As
previously stated, the defendant did not present testimony at the sentencing hearing. The
trial court decided the question of alternative sentencing based upon the presentence
report and the community corrections report. Thus, the trial court did not predicate his
ruling upon the credibility of any witnesses. This court, like the trial court, can view the
uncontroverted reports and determine the issue.
The defendant has the duty of convincing this court the failure of the trial court to
impose alternative sentencing was clearly erroneous. Sentencing Commission Comments
to Tenn. Code Ann. § 40-35-401(d); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991);
State v. Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991). In this case, the
defendant has failed to establish the trial court abused its discretion or the court’s ruling
was clearly erroneous.
If an accused is convicted of a Class C, D, or E felony and is sentenced as either
an especially mitigated offender or a standard offender, there is a presumption, rebuttable
in nature, that the accused is a favorable candidate for alternative sentencing unless
disqualified by some provision of the Tennessee Criminal Sentencing Reform Act of 1989.
Tenn. Code Ann. § 40-35-102(6).
The sentencing process must necessarily commence with a determination of
whether the accused is entitled to the benefit of the presumption. Ashby, 823 S.W.2d at
169; State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). As the supreme
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court said in Ashby: “If [the] determination is favorable to the defendant, the trial court
must presume that he is subject to alternative sentencing. If the court is presented with
evidence sufficient to overcome the presumption, then it may sentence the defendant to
confinement according to the statutory provision[s].” 823 S.W.2d at 169. The presumption
can be successfully rebutted by facts contained in the presentence report, evidence
presented by the state, the testimony of the accused or a defense witness, or any other
source provided it is made a part of the record. Bonestel, 871 S.W.2d at 167.
This court is of the opinion the record in this case rebuts the presumption of
alternative sentencing. The defendant was convicted of selling marijuana, a felony, on May
22, 1992, and was sentenced to pay a fine of $1,000 and serve one year in confinement.
He has also been convicted of public drunkenness. He admitted smoking marijuana twice
a week for an extended period of time, and he continued smoking marijuana after the
commission of the offenses in question. This constitutes criminal behavior on his part.
He admitted he has continued to consume alcoholic beverages on a weekly basis
after the commission of the offenses in question. He stated he had a problem with alcohol
from 1990 to 1995, yet he continues to consume alcohol. He admits he has a “problem”
with marijuana although he has never sought help for this addiction.
The trial court found that confinement was required to avoid depreciating the serious
nature of these offenses. Tenn. Code Ann. § 40-35-103(1)(B). The court further found
confinement was necessary to deter other citizens who might have the proclivity to commit
these offenses. Tenn. Code Ann. § 40-35-103(1)(B). Given the defendant’s prior history
of criminal convictions and criminal behavior, his flaunting of the laws of this State between
the commission of these crimes and the sentencing proceedings, and his failure to seek
assistance for his addiction to alcohol and drugs, there is a serious question of whether the
defendant can be rehabilitated. Tenn. Code Ann. § 40-35-103(5).
____________________________________________
JOE B. JONES, PRESIDING JUDGE
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CONCUR:
______________________________________
PAUL G. SUMMERS, JUDGE
______________________________________
DAVID G. HAYES, JUDGE
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