State v. Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
March 17, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9705-CR-00180
Appellee, * SULLIVAN COUNTY
VS. * Honorable Phyllis E. Miller, Judge
GARY LYNN SMITH, * (Introducing Drugs Into Penal
Facility)
Appellant. *
*
For Appellant: For Appellee:
Gerald L. Gulley John Knox Walkup
P.O. Box 1708 Attorney General & Reporter
Knoxville, TN 37901-1798
(on appeal only) Timothy Behan
Assistant Attorney General
Richard A. Tate 450 James Robertson Parkway
Assistant Public Defender Nashville, TN 37243-0493
P.O. Box 839
Blountville, TN 37617 Barry Staubus
Assistant District Attorney General
P.O. 526
Blountville, TN 37617
OPINION FILED: _____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Gary Lynn Smith, pled guilty to introducing drugs into a
penal institute, a Class C felony. The trial court imposed a three-year sentence to
be served in the Department of Correction. In this appeal of right, the defendant
claims the trial court erred by denying an alternative sentence.
We affirm the judgment of the trial court.
On February 14, 1996, the defendant was convicted of DUI, second
offense, and received a sentence including work release. W hen he reported to jail
to serve a portion of his sentence, a plastic baggie containing marijuana was
discovered in his shoe.
At the time of the offense, the defendant was working at Winn-Dixie
and was in training for an assistant manager position. The presentence report
established that the defendant has prior convictions for perjury, driving on a revoked
license, DUI, public intoxication, unlawful use of drug paraphernalia, disorderly
conduct, and several traffic offenses. The defendant admitted to smoking marijuana
in the past but claimed to have quit by the time the sentence was imposed.
In denying probation or Community Corrections, the trial judge ruled as
follows:
You have been released on a suspended sentence
seven times in the past ... and you were serving
minimum, mandatory time on work release, and yet, ...
you violated the law. ... You have several pages of
misdemeanor offenses .... I don't know how you can be
rehabilitated because you had all of these other chances.
... I am denying probation. ... [T]he only other alternative
is putting you in Community Corrections. ... [Y]ou have
the same problems [as] at the jail except you are not
locked up at night like you are here in the jail. You see,
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we have already tried something, ... giving you work
release. ... Nothing has worked for you in the past. Full
probation didn't work. Work release didn't work. That's
the same as Community Corrections. I am just going to
deny alternative sentencing of any form ....
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review 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 sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
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options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann. § 40-
36-103(1). The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant
meets the minimum requirements of the Community Corrections Act of 1985,
however, does not mean that he is entitled to be sentenced under the Act as a
matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).
The following offenders are eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
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Tenn. Code Ann. § 40-36-106(a).
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at
922. We cannot conclude the trial court erred by denying an alternative sentence.
Initially, the defendant would be eligible for either probation or
Community Corrections. Because, however, he was unable to comply with the
terms of his work release by committing the present offense, "measures less
restrictive than confinement have ... recently been applied unsuccessfully to the
defendant." Tenn. Code Ann. § 40-35-103(C). Moreover, the defendant received
suspended sentences several times in the past and yet persisted in his unlawful
behavior. Id. Thus, the trial court had a sound basis for denying probation or
Community Corrections.
A Community Corrections sentence might have allowed the defendant
the opportunity for treatment for his drug problems. He claimed remorse and a
genuine desire to "get his life back on track." See State v. Bingham, 910 S.W.2d
448, 453 n.2 (Tenn. Crim. App. 1995). Yet, the trial judge made the appropriate
findings of fact and considered the purposes and principles of the Sentencing
Reform Act. In Ashby, our supreme court encouraged the grant of considerable
discretionary authority to our trial courts in matters such as these. 823 S.W.2d at
171. "It is not the policy or purpose of this court to place trial judges in a judicial
straight-jacket in this or any other area, and we are always reluctant to interfere with
their traditional discretionary powers." Id. at 171. In our view, the defendant has not
met his burden of showing that the trial court erred by denying an alternative
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sentence.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
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William M. Barker, Judge
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Curwood Witt, Judge
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