State v. Parton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1997 SESSION
July 30, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9604-CR-00176
)
Appellee, ) BLOUNT COUNTY
)
VS. ) HON. D. KELLY THOMAS, JUDGE
)
DONALD R. PARTON, ) (Agg. Burglary)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
STEVE MERRITT JOHN KNOX WALKUP
116 E. Harper Avenue Attorney General and Reporter
Maryville, TN 37804
SARAH M. BRANCH
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
PHILIP MORTON
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED:
AFFIRMED
CHRIS CRAFT,
SPECIAL JUDGE
OPINION
The defendant, Donald R. Parton, appeals as of right from the denial of his
application for alternative sentencing. He entered guilty pleas to two concurrent seven
year sentences, to Aggravated Burglary and Theft over $1,000.00, as a Range II
Multiple Offender, and requested relief from confinement so that he could complete a
drug or alcohol substance abuse program. After a hearing, the trial judge denied relief.
In this appeal, the defendant contends that the trial court erred by refusing to
sentence him to six months confinement and then placement with a Community
Corrections Program. Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d),
-402(d). As the Sentencing Commission Comments to these sections note, the burden
is therefore now on the appealing party to show that the sentencing is improper. This
means that if the trial court followed the statutory sentencing procedure, made findings
of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the
1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However,
"the presumption of correctness which accompanies the trial court's action is
conditioned upon the affirmative showing 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). In this respect, for the purpose of meaningful
appellate review, the trial court must place on the record its reasons for arriving at the
final sentencing decision. T.C.A. §40-35-210(f) (1990). State v. Jones, 883 S.W.2d
597, 599 (Tenn. 1994).
The reasons the trial court gave for denying the defendant’s application were
that release other than confinement has been tried in the past and had proved
unsuccessful, that the defendant had a poor work history, had not cooperated with the
Department of Corrections while on parole, by moving and giving them no new address
so that they could not make home visits, and that he had a horrible criminal record
including past convictions for crimes of violence, all supported by the record. The
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defendant is not statutorily presumed to be a favorable candidate for a sentence other
than confinement because he was sentenced as a Range II Multiple Offender, rather
than as a "standard offender convicted of a Class C, D or E felony,” pursuant to T.C.A.
§ 40-35-102(6). Even if this defendant were entitled to the presumption, the trial judge
would have been fully justified in denying him Community Corrections because of his
criminal history evincing "clear disregard for the laws and morals of society" and
"failure of past efforts at rehabilitation." T.C.A. § 40-35-102(5) and State v. Bonestel,
871 S.W. 2d 163,167 (Tenn. Crim. App. 1993).
The defendant's prior criminal history includes three prior felony convictions and
multiple violations of probation. The presentence report includes an assessment of
defendant by his previous probation officer that
the defendant violated nearly all the terms of his probation repeatedly. He used
alcohol, stayed out to late hours, married without permission, failed to perform
community service work. His arrests ranged from aggravated rape to assault
to larceny but the victims would all agree to drop charges and they would all
subsequently be dropped. Client also had virtually no work history, did not pay
fees or court costs and adamantly refuses to go to any form of counseling, A.A.
or to work on his G.E.D.
The trial court's denial of a community corrections sentence is supported by the
record, and the defendant has failed to demonstrate that the sentence imposed by the
trial court is improper.
The judgment of the trial court is AFFIRMED.
CHRIS CRAFT, SPECIAL JUDGE
CONCUR:
JERRY L. SMITH, JUDGE
JOE G. RILEY, JUDGE
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