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affirming the denial of judicial diversion where, even though several factors weighed in the defendant's favor, the circumstances of the offense were "particularly troublesome"
Summary of this case from State v. BellOpinion
No. M2005-01268-CCA-R3-CD.
April 18, 2006 Session.
Filed June 12, 2006.
Appeal from the Circuit Court for Bedford County; No. 15560; J. Steve Daniel, Senior Judge.
Judgments of the Circuit Court Affirmed as Modified.
Tony L. Maples and Allen Hale (at trial), Murfreesboro, Tennessee, for the appellant, Jonathan B. Dunn.
Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.
Joseph M. Tipton, J., delivered the opinion of the court, in which David H. Welles and John Everett Williams, JJ., joined.
OPINION
After the Bedford County Juvenile Court transferred the defendant to the Bedford County Circuit Court for trial, the defendant pled guilty to one count of aggravated assault, a Class C felony, and one count of reckless endangerment with a deadly weapon, a Class E felony. The trial court sentenced the defendant to concurrent terms of four years for the assault and one year for the reckless endangerment, ordering the defendant to serve one year in confinement before being released on supervised probation. On appeal, the defendant contends the trial court erred (1) in applying enhancement factors to increase the length of his assault sentence, (2) in denying full probation, and (3) in denying judicial diversion. Concluding the trial court erred in sentencing, upon de novo review, we sentence the defendant to three years incarceration with nine months to be served in confinement before release on supervised probation. We affirm the trial court's denial of judicial diversion.
This case relates to the defendant's participation in a high-speed car chase where he was a passenger in a car driven by one of his confederates that was chasing the two victims while someone in the defendant's confederate's car was shooting at them. Initially, we note the defendant has failed to include a transcript of the guilty plea hearing with the record on appeal. Therefore, we have been able to glean only a few factual details of the crime from the sentencing hearing. At the sentencing hearing, the state recounted the following facts supporting the defendant's guilty plea:
Andrew Crick and Carl Brown, the victims in this case, were at the racetrack. And they left and headed home because they had a curfew they had to be home by. And it was sometime after they left the racetrack they encountered the defendants, who were essentially parked on the side of the road on their path home. And that's where the chase began.
And then there was a point in the chase where the defendant's vehicle passed and blocked the victim's vehicle. And the defendants jumped out. . . . [D]uring that portion of the chase there were shots fired from the defendant's vehicle and heard by both victims from their vehicle. And then . . . there was a point where they passed them; they blocked their vehicle, and they got out.
The defendant approached the passenger's side where Andrew Crick was seated and placed a pistol in his face, pointed a pistol in his face, and then the [defendant's accomplice] . . . came around and punched him in the face one time.
It was at that point Mr. Brown was actually able to get back around them and flee home.
At the sentencing hearing, Andrew Crick testified that he was fifteen years old at the time of the offense. He said that during the chase, both cars were going about eighty miles per hour. He said that when the defendant approached him after blocking the roadway, he noticed the defendant was wearing a shoulder holster. He said the defendant had his gun in his hand. Mr. Crick said he "was scared to death" when the defendant pointed a gun at his head.
On cross-examination, Mr. Crick acknowledged that the defendant was not driving the other car and that he did not see the defendant shooting. He admitted the defendant did not strike him. He said the defendant's accomplice, Justin Leverette, struck him. Mr. Crick acknowledged that he had an ongoing dispute over a girl with the defendant's other accomplice, Joseph Lynch. He admitted the ongoing dispute was "what started this whole event."
Carl Brown testified that he was driving his pickup truck during the chase and that Mr. Crick was his passenger. Mr. Brown said he was scared for his life during the chase. He said that after he heard the gunshots, he scrunched down in his seat while continuing to drive. On cross-examination, Mr. Brown admitted there was no damage to his truck as a result of the chase. Mr. Brown admitted that while he and Mr. Crick were still at the racetrack, they heard through a third party that Mr. Lynch had threatened Mr. Crick.
Cathy Crick testified that she is Andrew Crick's mother. She said she was horrified when she heard what had happened to the victims. She said her son had a "big `goose egg'" above his eye as a result of being hit. She said that when Mr. Brown's parents brought her son home, her son was still shaken and upset.
Barbara Brown testified that she is Carl Brown's mother. She said she was horrified when she learned what had happened to her son. She said that when the victims arrived home, they looked very upset.
Robin Philpot testified that she is the defendant's mother. She said she divorced the defendant's father in 1993. She said that for a while after the divorce, the defendant lived with his father but explained he did not have a good relationship with his father. She said the defendant suffered from asthma and depression. She said that as a result of the medication for depression, the defendant became suicidal between the ages of thirteen and fourteen. Ms. Philpot said that since the defendant's arrest, he had been working and taking care of his six-week-old son. She said the defendant had been a follower not a leader for his entire life.
On cross-examination, Ms. Philpot admitted the defendant had not married his son's mother, who was sixteen or seventeen years old at the time of conception. She admitted that at the time of the sentencing hearing, the defendant was living with another girl.
Jessica White testified that she was the seventeen-year-old mother of the defendant's son. She said that even though she was not with the defendant, he took an active role in his son's life. She said the defendant had paid child support to her since their son was born. She said the defendant spent money "over and above" the child support on his son. She said that since the defendant was arrested, he had matured. She said she anticipated the defendant's continuing to be an active participant in his son's life.
Charles Koah testified that he was the defendant's bail bondsman. He said, however, that he had known the defendant for seven years before his arrest. He said the defendant was a hard worker, not lazy. He said he was aware of the defendant's prior juvenile record. He said he thought the defendant had matured over time. Mr. Koah said he believed the defendant could be trusted on probation because "[t]he world looks different through the eyes of a parent. . . ."
The defendant testified that he was seventeen years old at the time of the offense. He said he had previously been arrested and charged with the delinquent acts of theft (two offenses), assault (two offenses), and disorderly conduct. He said his relationship with his father was not good.
The defendant said that on the day of the offense, he and his confederates purchased homemade wine from Pokey Brown. He said that they purchased three one-half-gallon containers of wine, which they drank. The defendant said he was not driving on the night of the offense. He said he did not shoot his gun at the victims during the car chase. He said he was armed because he had been target shooting earlier in the day. He said that although he was brandishing the gun when he approached the victims, he did not point the gun at Mr. Crick.
The defendant testified that his attitude had changed because of his incarceration and parenthood. He said that he had a family to look after and a job to keep and that if the judge were to probate his sentence, he would not reoffend.
The state submitted the defendant's presentence report into evidence and counsel proceeded with closing arguments. Based upon the evidence and the arguments of counsel, the trial court found
that subfactor 2 applies, that [the defendant] has a prior criminal history in the juvenile court system, . . . which involved assaultive behavior as well.
. . .
Secondly, there is another enhancement factor that is applicable, 40-35-114, subpart 4, there's more than one victim associated with this incident of assault and activities here. There are two young men in the vehicle.
Subpart 5 is also applicable, both based on the proof that was presented here, that in this case young Mr. Crick did incur personal injury to his face, with a laceration or a bump on his head from the assault in question. Either — it appears that that's probably from a co-defendant, but that exists.
And subfactor 9 appears to apply as well . . ., although it is questionable as to the last assault in [the defendant's] history, that's shown that he has been on probation in the past and failed to complete that probation successfully. On one occasion, having new charges within 17 days of having been placed on probation.
Mitigating, on mitigating factors to be found . . ., subpart 6, this is a young man, obviously had the troubled background. His youth gives rise to a lack of good judgment. Having engaged in this statutory scheme of considering the enhancement factors as well as the mitigating factors, I'm going to depart from the minimum sentence up, on the aggravated assault, and impose a sentence of four years in the State penitentiary as a Range I 30 percent offender. I've considered those factors, reducing it by the one mitigating factor, to come to that four-year sentence.
On appeal, the defendant contends his sentences are excessive. He claims the trial court improperly enhanced his aggravated assault sentence, improperly denied him full probation, and improperly denied his request for judicial diversion. The state contends the trial court properly sentenced the defendant.
I. EXCESSIVE SENTENCE
The defendant contends the trial court improperly enhanced his aggravated assault sentence. He claims the trial court erred in applying enhancement factors (2), that the defendant has a previous history of criminal convictions or criminal behavior, (4), that the offense involved more than one victim, and (5), that the victim was particularly vulnerable because of age or physical or mental disability. See T.C.A. § 40-35-114(2), (4), (5) (2003). Specifically, he claims that because our General Assembly provided for an enhancement factor dealing with juvenile adjudications, that enhancement factor precludes the enhancement of a sentence under factor (2) for criminal behavior occurring as a juvenile. He argues that because his prior juvenile adjudications were not felonies, the juvenile delinquent factor (21) does not apply and that because (21) does not apply, (2) cannot be used. The defendant concludes that this court on de novo review should affix his aggravated assault sentence at three years after applying enhancement factor (9) and mitigating factor (6), that the defendant, because of youth lacked substantial judgment in committing the offense. See T.C.A. § 40-35-113(6).
We note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-102(6), -114, -210, and -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are inapplicable to the defendant's appeal.
The state contends the trial court's four-year sentence for aggravated assault is proper. Initially, the state concedes the trial court erred in applying factor (4). It claims, however, that factor (2) can be used in the context of juvenile criminal behavior. It also claims that when the trial court applied factor (5), it was a misstatement and that it meant to apply factor (17), that the crime was committed under circumstances under which the potential for bodily injury to a victim was great.See T.C.A. § 40-35-114(17) (2003). The state claims that this court should affirm the trial court's four-year aggravated assault sentence after exercising de novo review and considering the applicable enhancement and mitigating factors. We conclude the trial court erred in applying enhancement factors (2), (4), and (5), and upon de novo review, we conclude the defendant's aggravated assault sentence must be reduced to three years.
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) (2003). As the Sentencing Commission Comments to this section note, the burden is now on the defendant to show that the sentence 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, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. T.C.A. § 40-35-210(f) (1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).
In conducting our de novo review, we must consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, 103, -210 (2003); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).
The sentence to be imposed by the trial court is presumptively the minimum in the range for a Class C or E felony unless there are enhancement factors present. T.C.A. § 40-35-210(c) (2003). Procedurally, the trial court is to increase the sentence within the range based upon the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. T.C.A. § 40-35-210(d), (e) (2003). The weight to be afforded an existing factor is left to the trial court's discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record. T.C.A. § 40-35-210, Sentencing Commission Comments (2003); Moss, 727 S.W.2d at 237;see Ashby, 823 S.W.2d at 169.
In support of his contention that the trial court erred in applying factor (2), the defendant cites State v. Jackson, 60 S.W.3d 738 (Tenn. 2001). In Jackson, our supreme court, relevant to the issue of applying factor (2) in the context of juvenile criminal behavior, stated,
After the 1995 amendment went into effect, several panels of the Court of Criminal Appeals recognized that if factor [(2)] was to continue being interpreted to allow consideration of juvenile records, such interpretation would render factor [(21)] without any significant effect. Consequently, various panels attempted to reconcile the two factors and have since held that these two factors apply to mutually exclusive instances of conduct: factor [(2)] applies only to adult criminal conduct, and factor [(21)] applies exclusively to juvenile adjudications. See, e.g., State v. Burns, No. M1999-00873-CCA-R3-CD, 2000 WL 711148, at *5 (Tenn.Crim.App. filed at Nashville, June 2, 2000); State v. Brown, No. 02C01-9710-CC-00419, 1998 WL 742350, at *2 (Tenn.Crim.App. filed at Jackson, Oct. 26, 1998). In addition, several panels have gone further to hold that factor [(21)] provides the exclusive means for allowing a court to consider any part of a juvenile record. See, e.g., State v. Faulkner, No. 03C01-9806-CR-00217, 1999 WL 1039714, at *7 (Tenn.Crim.App. filed at Knoxville, Nov. 12, 1999); State v. Adams, No. 02C01-9512-CC-00376, 1997 WL 1821, at *4 n. 4 (Tenn.Crim.App. filed at Jackson, Jan. 3, 1997).
We note that at the time of the decision in Jackson, current factors (2) and (21) were numbered (1) and (20) respectively.
We agree that factors [(2)] and [(21)] are mutually exclusive. If not so construed, the broad interpretation given to factor [(2)] would render factor [(21)] "inoperative, superfluous, void, or insignificant." Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn. 1975). Because the legislature is not presumed to have passed or enacted useless legislation, see, e.g., Texas Gas Transmission Corp. v. Atkins, 205 Tenn. 495, 500, 327 S.W.2d 305, 307 (1959), factor [(2)] must necessarily apply only to adult criminal conduct, and factor [(21)] must apply exclusively to juvenile adjudications of delinquent acts.
Jackson, 60 S.W.3d at 742 (emphasis added).
Conversely, the state cites State v. Brandon Raymond Bartee, No. M2004-02637-CCA-R3-CD, Sumner County (Tenn.Crim.App. Sept. 20, 2005), for the proposition that the trial court's application of factor (2), based upon the defendant's prior juvenile misdemeanor record, was proper. In Bartee, the trial court enhanced the defendant's sentence upon applying factor (2) based upon the defendant's prior juvenile record. A panel of this court held,
[W]hile the defendant correctly states that his juvenile adjudication cannot be considered a prior conviction for the purpose of sentence enhancement . . ., the adjudication, as noted in the presentence report and the psychosexual evaluation can properly be considered as past criminal behavior. See Tenn. Code Ann. § 40-35-114(2) (2004). Considering it as such, we conclude that the enhanced sentence of two years on each count is justified.
Bartee, slip op. at 3-4. We conclude that our supreme court's holding in Jackson is controlling and that the trial court erred in applying factor (2).
Concerning the application of factor (4), in State v. Imfield, 70 S.W.3d 698, 706 (Tenn. 2002), our supreme court stated, "In short, there cannot be multiple victims for any one offense of aggravated assault committed against a specific, named victim." We agree with the state and the defendant that the trial court erred in applying factor (4).
Concerning the application of factor (5), we do not agree with the state that the trial court simply misstated and was attempting to apply factor (17). In any event, on de novo review we conclude that neither factor (5) nor factor (17) is applicable. We further conclude that enhancement factor (9) is applicable based upon the defendant's prior failed attempts at complying with conditions involving release into the community and that mitigating factor (6) is applicable based upon the defendant's age. Concluding that the enhancement factor does not outweigh the mitigating factor, we reduce the defendant's sentence to three years, the minimum in the range.
II. FULL PROBATION
The defendant contends the trial court erred in not suspending his sentences in their entirety. He claims that the trial court improperly relied on his juvenile record in denying him full probation. The state contends the trial court properly denied the defendant full probation.
In denying the defendant full probation, the trial court stated,
Now, in this young man's situation, it's my hope that he is honest and truthful, that he would comport his conduct in the future to a good and lawful conduct. But at some point in time in the history of misconduct, there comes a day where criminal responsibility and accountability come to bear, and this is that day. So he's going to have to pay the price for his misconduct, and the offer that he had with the weapon here, of obviously more serious situations for these young victims.
[The defendant's] going to be required to serve one year of this sentence. He's given credit for the time that he was in custody of the juvenile facility. Thereafter I'm going to place him on four-year State supervised probation.
When determining if confinement is appropriate, a trial court should consider whether (1) confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct, (2) confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to people likely to commit similar offenses, or (3) measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. T.C.A. § 40-35-103(1)(A)-(C). The trial court may also consider a defendant's potential or lack of potential for rehabilitation and the mitigating and enhancement factors set forth in Tennessee Code Annotated sections 40-35-113 and -114. T.C.A. §§ 40-35-103(5), -210(b)(5) (2003); State v. Boston, 938 S.W.2d 435, 438 (Tenn.Crim.App. 1996). The sentence imposed should be the least severe measure necessary to achieve the purpose for which the sentence is imposed. T.C.A. § 40-35-103(4).
When a defendant is an especially mitigated or standard offender convicted of a Class C, D, or E felony, the defendant is presumed to be a favorable candidate for alternative sentencing. T.C.A. § 40-35-102(6) (2003). When the defendant is presumed to be an eligible candidate, the state can overcome the presumption with "evidence to the contrary." Id. Here the defendant is presumed to be a favorable candidate for alternative sentencing based upon his Class C and Class E felony convictions. However, the burden is on the defendant to establish that he is suitable for total probation and "that probation will be in the best interest of the defendant and the public." State v. Ring, 56 S.W.3d 577, 586 (Tenn.Crim.App. 2001) (citing State v. Baker, 966 S.W.2d 429, 434 (Tenn.Crim.App. 1997)).
The record reflects that the defendant violated the terms of his juvenile adjudications involving release into the community. We conclude that confinement in this case is necessary based upon the defendant's recent failure to adhere to conditions involving release into the community. However, upon de novo review, we conclude the defendant's period of confinement should be reduced from one year to nine months.
III. JUDICIAL DIVERSION
The defendant contends the trial court erred in not granting him judicial diversion. He claims the trial court erred in considering his prior juvenile record in making its determination. He asserts that because the trial court based its decision on an erroneous factor, its denial of judicial diversion was arbitrary. The state contends the defendant is not an appropriate candidate for judicial diversion.
At the sentencing hearing, the trial court denied the defendant's request for judicial diversion, stating,
Well, I'll address this [judicial diversion] issue first, and my recollection is, the statutory provision prohibits a diversion, judicial diversion, unless there's a felony or a Class A misdemeanor conviction. In this juvenile record, if I'm reading it correctly, the assaults and the thefts would all be under the classification of an A misdemeanor. And just because you're eligible for it doesn't mean that the first bite as an adult is "at the apple" so to speak, gives rise to a judicial diversion. So I find that to be without merit.
A defendant is eligible for judicial diversion if he or she is convicted of a Class C, D, or E felony or lesser crime and has not previously been convicted of a felony or a Class A misdemeanor. See T.C.A. § 40-35-313(a)(1)(B)(I). Judicial diversion allows the trial court to defer further proceedings without entering a judgment of guilt and to place the defendant on probation under reasonable conditions. T.C.A. § 40-35-313(a)(1)(A). When the probationary period expires, if the defendant has completed probation successfully, the trial court will dismiss the proceedings against the defendant with no adjudication of guilt. See T.C.A. § 40-35-313(a)(2). The defendant may then apply to have all records of the proceedings expunged from official records. See T.C.A. § 40-35-313(b). A person granted judicial diversion is not convicted of an offense because a judgment of guilt is never entered. See T.C.A. § 40-35-313(a)(1)(A).
Judicial diversion is not a sentencing alternative for a defendant convicted of an offense. See T.C.A. § 40-35-104(c). Therefore, there is no presumption that a defendant is a favorable candidate for judicial diversion. See State v. Bingham, 910 S.W.2d 448, 456 (Tenn.Crim.App. 1995). When a defendant challenges the manner of serving a sentence, this court conducts 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." T.C.A. § 40-35-401(d) (2003). However, when the accused challenges the trial court's denial of a request for judicial diversion, a different standard of appellate review applies. Because the decision to grant judicial diversion lies within the sound discretion of the trial court, this court will not disturb that decision on appeal absent an abuse of discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.Crim.App. 1998). Upon review, we will give the trial court the benefit of its discretion if "`any substantial evidence to support the refusal' exists in the record." State v. Anderson, 857 S.W.2d 571, 572 (Tenn.Crim.App. 1992) (quotingState v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983)).
In determining whether to grant judicial diversion, the trial court must consider (1) the defendant's amenability to correction; (2) the circumstances of the offense; (3) the defendant's criminal record; (4) the defendant's social history; (5) the defendant's physical and mental health; (6) the deterrence value to the defendant and others; and (7) whether judicial diversion will serve the ends of justice.Electroplating, Inc., 990 S.W.2d at 229; State v. Parker, 932 S.W.2d 945, 958 (Tenn.Crim.App. 1996). In addition, "the record must reflect that the court has weighed all of the factors in reaching its determination." Electroplating, Inc., 990 S.W.2d at 229. If the trial court refused to grant judicial diversion, it should state in the record "the specific reasons for its determinations." Parker, 932 S.W.2d at 958-59.
Initially, we note that the trial court failed to consider the factors it is required to consider when denying judicial diversion. See Electroplating, Inc., 990 S.W.2d at 229. Therefore, we consider de novo the factors listed inElectroplating, Inc. in order to determine whether the trial court abused its discretion in denying judicial diversion.
We note the record reflects that the defendant has repeatedly failed to comply with conditions involving release into the community. We view the circumstances of the offense to be particularly troublesome. Essentially, the record reflects a dispute between one of the victims and the defendant's confederate over a girl. Yet, without provocation, the defendant held his gun six inches from the head of the victim. We note that factors (3), (4), and (5) operate in favor of the defendant; however, we conclude that granting the defendant judicial diversion would not provide a sufficient deterrent to him. The trial court did not abuse its discretion in denying judicial diversion.
CONCLUSION
Based upon the foregoing and the record as a whole, we reverse the judgments of the trial court sentencing the defendant to four years incarceration to be served in split confinement with one year incarceration and four years of supervised state probation. The defendant is sentenced to three years to be served in split confinement with nine months confinement and two years and three months of state supervised probation as ordered by the trial court. In all other respects, we affirm the trial court.