Opinion
C.C.A. No. 02C01-9709-CR-00347
December 12, 1998
Shelby County, Hon. W. Fred Axley, (Sentencing)
AFFIRMED
FOR THE APPELLANT:
Brett B. Stein
FOR THE APPELLEE:
John Knox Walkup, Attorney General Reporter, Douglas D. Himes, Assistant Attorney General, William L. Gibbons,District Attorney General, Rhea Clift, Assistant District Attorney General
The defendant pled guilty to one count of theft over $1,000.00 and one count of assault, agreeing to a two-year sentence for the theft and a sixty-day sentence for the assault. The trial court held a sentencing hearing to determine the manner of service for the sentences, and denied an alternative sentence, ordering the defendant to serve two years in confinement at the Shelby County Correctional Center. In this appeal, the defendant argues that the trial court abused its discretion in failing to impose an alternative sentence. Following our review of the record, we affirm the trial court.
SENTENCING HEARING
The evidence offered at the sentencing hearing revealed that the defendant was twenty-six years old and the father of four children. The defendant was employed by Crown Distribution at the time of the sentencing hearing (August 13, 1997) and had been so employed since January 1, 1997. The defendant resided with his wife (the victim in the assault case) and three of his four children.
While employed by a previous employer, Delta Beverage Pepsi-Cola (Delta), defendant engaged in a scheme whereby he changed customer invoices resulting in his stealing approximately $2,100.00 from Delta during a three or four month period in 1996. An employee of Delta testified that the investigation resulting in the arrest of the defendant also resulted in eleven employees being terminated and several hundred thousand dollars in similar theft being discovered.
The defendant testified that he had not been "dishonest" before and that at the time of the thefts he needed money to pay gambling debts. The defendant felt that he had learned his lesson and would not steal again. He also expressed a willingness to pay restitution to his former employer.
Concerning the assault, the defendant contradicted the allegations of the victim. Responding to questions by the trial court, the defendant denied striking or shoving his wife. This contradicted statements that his wife had made to the police.
The defendant's mother testified for the defendant at the sentencing hearing and basically expressed her opinion to the trial judge that the defendant was "repentant" and had "learned his lesson from this".
LEGAL ANALYSIS
In this case, the defendant pled guilty to theft over $1,000.00 and assault, and is presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6). However, the record in this case clearly reflects the rebuttal of this presumption.
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 trial court's determinations are correct. Tenn. Code Ann. § 40-35-401(d). 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 its review, this Court must consider the following: the evidence, if any, received at trial and sentencing hearing, information contained in the presentence report, the statutory principles of sentencing, counsel's arguments as to sentencing alternatives, the nature and characteristics of the criminal conduct, mitigating and statutory enhancement factors, any statement that the defendant made on his own behalf, and the potential for rehabilitation or treatment. Ashby, 823 S.W.2d 166, 168-69 (Tenn. 1991).
If an accused is convicted of a Class C, D or E felony and is sentenced as a standard offender, there is a rebuttable presumption 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 presumption may 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.State v. Bonestel, 871 S.W.2d 163, 167 (Tenn.Crim.App. 1993).
In a case where the defendant seeks probation, the Court must consider the accused's criminal record, social history, present physical and mental condition, the circumstances of the offense, the deterrent effect upon criminal activity of the accused as well as others, and the accused's potential for rehabilitation and treatment. State v. Parker, 932 S.W.2d 945, 959 (Tenn.Crim.App. 1996). This Court has previously determined that a negative finding of any one of these factors is sufficient to support a denial of probation. State v. Bell, No. 02C01-9608-CR-00275 (Tenn.Crim.App. July 18, 1997).
A sentence of confinement is considered appropriate ". . .to avoid depreciating the seriousness of the offense. . .to provide an effective deterrence to others likely to commit similar offenses. . ." Tenn. Code Ann. § 40-35-103(1) (B). Compliance with just one of the above mentioned factors is sufficient to order a sentence of confinement.
In this case, the record reflects that the defendant exhibited a sustained intent to violate the law. The defendant violated a position of private trust by stealing from his employer. Proof was offered as to the theft problem at Delta and the need for deterring other employees from acting as the defendant had.
The assault by the defendant was committed upon his wife while the defendant was on bond on the theft charge. Despite the defendant's assertions to the contrary, his own mother stated that the defendant told her that he pushed his wife and she fell over a table in the living room.
The trial court considered the defendant's lack of criminal history and fair social history as factors in his favor. However, it is abundantly clear from the record that the trial judge considered the law and evidence before him and concluded that it was appropriate to deny an alternative sentence in this case. Having reviewed the testimony from the sentencing hearing, the presentence report, and the trial court's findings, this Court concludes that the sentences imposed by the trial court are proper.
CONCLUSION
Finding that the trial court properly considered the established sentencing considerations and evidence, this Court AFFIRMS the sentence imposed by the trial court.
________________________________ ROBERT W. WEDEMEYER, Special Judge
CONCUR:
__________________________________ JOE G. RILEY, Judge
__________________________________ CURWOOD WITT, Judge