IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 27, 2011 Session

STATE OF TENNESSEE v. JAMES LEROY POSTON

Direct Appeal from the Criminal Court for Cumberland County

No. 08-0188 David A. Patterson, Judge

No. E2011-00106-CCA-R3-CD - Filed March 5, 2012

The Defendant-Appellant, James Leroy Poston, was indicted by the Cumberland County

Grand Jury for one count of second degree murder. Poston subsequently entered a guilty plea

to reckless homicide in the Cumberland County Criminal Court. Pursuant to his plea

agreement, Poston received a sentence of two years as a Range I, standard offender, with the

manner of service to be determined by the trial court. At the sentencing hearing, the trial

court imposed a sentence of confinement in the Tennessee Department of Correction. On

appeal, Poston argues that the trial court erred in denying his request for an alternative

sentence. Upon review, we reverse the judgment of the trial court and remand for entry of

a judgment sentencing Poston to serve his two-year sentence on supervised probation.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court

Reversed and Remanded

CAMILLE R. MCMULLEN,J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

P.J., and D. KELLY THOMAS, JR., J., joined.

C. Douglas Fields, Crossville, Tennessee, for the Defendant-Appellant,James Leroy Poston.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Randall A. York, District Attorney General; and Gary McKenzie,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Plea Submission Hearing. Prior to Poston entering his guilty plea, the State

summarized the facts that formed the basis for the plea agreement:
Judge, [on] April 24, 2008, the Tennessee Bureau of Investigation was

called out to investigate a homicide that occurred here in Cumberland County.

And the facts [upon which] the state would rely . . . if we went to trial [are

that] after interviewing several witnesses, the [Tennessee Bureau of

Investigation] had one . . . witness who was the . . . girlfriend, fiancee of the

. . . victim[, Jimmy Dion Conatser,] at the time[.] And her statement was that

the defendant had gotten into an argument with the victim . . . and that the

victim . . . had r[u]n outside of the home and was out in the yard when the

defendant . . . shot and killed him standing in the yard.

So that was [the scenario in which] Mr. Poston did shoot and kill [the

victim] . . . where [the victim] was nowhere near or around him.

Now that’s the state’s contention, that’s what we believe. However,

having said that, the difficulty that the state faces [is that o]ur proof is . . .

limited to a single witness. And we understand that the defense would attack

that witness based on . . . her history as well as . . . her relationship with the

victim at the time.

The defendant would testify at trial . . . that there was an altercation,

that the victim was the aggressor in that altercation, that the defendant was in

fear of his life[,] and that he . . . shot and killed the victim in some form of

self-defense.

The difficulty the state [has] is that there was blood found on the porch

area and in the immediate vicinity of the home that, if the blood was the

victim’s, which is very likely . . . , would corroborate what the defendant says.

The defendant also says . . . the victim tried to strike him with a two by four

[board,] and there was [a board] found on that porch . . . that [is] consistent

[with Poston’s version of the events]. So there’s some dispute as to what took

place and what happened between these individuals.

Likewise, the victim’s prior criminal history would [probably be

admissible] . . . to show [that the victim is] the first aggressor. And the

defense and I have had plenty of conversations about this[,] and [the victim

had] prior assaultive[-]type convictions[,] and in fact the victim had just

recently got[ten] out of prison.

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All of these things, and also taking into consideration . . . the

defendant’s health and how he would appear at trial, puts the state at a

disadvantage somewhat [in getting] the second degree [murder] conviction.

[This has all] led to our . . . negotiated plea today for reckless homicide.

I don’t know that anybody is happy with this, but given the factual

circumstances and the evidence and the risk [of] going to trial for the

defendant, we think this is an appropriate settlement.

Sentencing Hearing. Chad McCaleb, an employee with the Tennessee Department

of Probation and Parole, testified that he prepared Poston’s presentence investigation report,

which was entered into evidence. This report established that Poston was a seventy-six-yearold white male with no criminal history. The report also stated that Poston had a third grade

education, was married but separated from his wife, Wanda Poston, and lived with his son

and daughter-in-law prior to his incarceration for this offense. In the report, Poston reported

poor mental health because he could not “remember things half the time.” He also stated that

he was in poor physical health, had problems with his back, legs, heart, and eyes, took

multiple medications, and received disability benefits. McCaleb then read Wanda Poston’s

victim impact statement from the presentence report, in which she stated that “this incident

[in which her husband fatally shot her son ] nearly killed her” and that despite the fact that

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she had “hoped for more than a . . . two[-]year sentence,” it was her desire that Poston serve

his entire sentence in confinement.

Tommy Calahan, an agent with the Tennessee Bureau of Investigation, testified that

he was the lead investigator in Poston’s case. Upon arriving at the scene of the incident,

Agent Calahan obtained consent from Poston to search his home. During this search, Agent

Calahan discovered a revolver in Poston’s chair, and Poston told him that the gun was his and

that he had retrieved it from his bedroom during an argument with the victim. Poston also

informed Agent Calahan that the victim had been drinking, had thrown a chair and a wooden

board at him, and had called him a “son of a b----.” Finally, Poston told Agent Calahan that

he fired two warning shots before firing the third fatal shot at the victim. Agent Calahan said

that statements were also obtained from Poston’s wife and Tamara Underwood, the victim’s

girlfriend. He said that Underwood claimed she and the victim were about to get into their

car to leave Poston’s home when Poston retrieved his gun, walked to the front porch, and

shot the victim, who was approximately twenty to twenty-five feet away. However, Agent

Calahan said Wanda Poston offered a different version of the incident. Mrs. Poston said that

Poston and the victim began arguing because Poston would not allow the victim to use the

lawnmower while intoxicated. Mrs. Poston said that the victim and Underwood walked out

The victim in this case is the Defendant-Appellant’s stepson. 

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to their car, while Poston stayed inside the house. Poston and the victim continued to yell

at each other, and then Poston came outside with a gun in his hand. She also stated that

Poston fired a shot at the victim and that the victim threw two wooden boards at Poston,

although she was unsure about the sequence of these events. Agent Calahan stated that the

victim had a criminal history that included charges for attempted methamphetamine

distribution and a 1995 assault. He acknowledged that Poston immediately admitted that he

was responsible for the shooting. Agent Calahan also said that he observed blood drops on

Poston’s front porch that extended twenty-five feet to the location of the victim’s body,

which indicated that the victim had been shot while he was standing on the front porch.

Agent Calahan said that a chair was found at the scene, a wooden board was found on the

front porch, and a second wooden board was found in Poston’s living room. During the

sentencing hearing, the parties stipulated that the victim had a blood alcohol level of .10

percent at the time of the offense.

Monica Arroyo, the victim’s cousin, read a statement during the sentencing hearing.

In it, she stated that Poston had taken away a loved one from her and her family. Arroyo

challenged Poston’s use in court of a wheelchair and an oxygen ventilator by asserting that

Poston typically did not need a wheelchair or ventilator. She asked that the court give Poston

the harshest sentence possible.

James Richard (“Ricky”) Poston, testified that his father, the Defendant-Appellant,

had been a good father to him. He also stated that the victim was his step-brother and that

he and his step-brother were adults when their parents married. Ricky Poston said that he

loved his step-brother, the victim. He also said that his father began living with him after the

shooting because his father needed assistance going to his doctors appointments and

obtaining his prescriptions. He acknowledged that the victim was physically very strong.

He said that his father had shown signs of remorse and regret after the shooting and that he

often saw his father crying at the kitchen table at night.

The Defendant-Appellant, James Leroy Poston, testified that he suffered bruises to

his right arm and right leg when the victim hit him with a wooden board during the incident.

Pictures of these bruises were entered into evidence. Poston then made the following

statement to the court:

. . . I’d like to apologize to all of the family. I know I caused a lot of

trouble. And I loved [the victim], I did, there ain’t [sic] no lie about it. If I

hadn’t of [sic] loved him, I wouldn’t have [taken] care of him as long as I did,

twenty something years. I [did] all I could do[,] and I [gave] him the money

to pay . . . his light bill and [to] get his driver[’]s license. . . . And it’s, it’s just

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been hard on us, I think I’ve suffered. I don’t sleep at night, I don’t sleep at

night. I walk the floors.

Poston said he would be seventy-seven years old within the month and asserted he was in

terrible health. He stated he shot the victim because the victim “started it all.” He also said

he was frightened of the victim. Poston said he was sorry the shooting occurred.

During cross-examination, Poston acknowledged he became angry enough to get his

gun when the victim called him a “son of a b----[.]” He said he was sitting in his chair, and

the victim was sitting in his car outside, when the victim made this offensive statement to

him. In response, Poston retrieved his .38 caliber handgun and walked out on the porch, and

the victim threw a chair at him, which caused Poston to fall down. As he was on the ground,

Poston began firing the gun. Poston also admitted he was normally able to walk but was

sitting in a wheelchair because of a recent fall. He acknowledged he should receive some

punishment because he took the victim’s life.

During the sentencing hearing, defense counsel informed the court that he and the

State had agreed to have letters from Poston’s doctor and a list of his medications admitted

as a summary of Poston’s health conditions. In these letters, Poston’s doctor asserted that

Poston suffered from severe cardiovascular disease that required an artery bypass graft in

2006 and two cardiac stents. In addition, she said that Poston has had “progressive

problems[,]” including the risk of bowel rupture, from his colostomy and bowel stent. The

doctor said thatshe discussed the possibility of hospice care for Poston’s long-term care. She

also said he suffered from stage three chronic kidney disease, congestive heart failure, rectal

bleeding, lung problems, and atrial fibrillation. Poston’s doctor opined that Poston was “an

extremely high risk case that would require close monitoring by physicians, lab[s], and

possible imaging.” She also opined that a discontinuation of his approximately thirty

medications would result in “certain death.” Although the State agreed to the admission of

the doctor’s statement and records, it argued that nothing in these documents made Poston

an inappropriate candidate for the Special Needs prison.

Prior to determining the manner of service of the two-year sentence, the trial court

considered all of the information in section 40-35-210(b), including the evidence from the

sentencing hearing, the presentence investigation report, the victim impact statement, the

principles of the sentencing act, the arguments regarding sentencing alternatives, the nature

and characteristics of the criminal conduct involved in the case, the initial charge of second

degree murder, and the applicable enhancement and mitigating factors. It also considered

the victim’s blood alcohol level of .10 percent, the victim’s prior criminal history, and

Poston’s decision to retrieve a gun after the victim called him a “son of a b----.” The court

also noted that the defendant had the burden of establishing his suitability for full probation

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and had to show that probation would serve the best interest of the public and the defendant.

The court also stated that Poston “deliberated” before committing the offense in this

case. However, it acknowledged that Poston could have made a self-defense claim had the

case gone to trial, especially given the fact that the victim was intoxicated and allegedly hit

Poston with a wooden board during the incident. Ultimately, the trial court found that

“[c]onfinement [was] necessary to avoid depreciating the seriousness of the offense or

confinement [was] particularly suited to provide an effective deterrence to others likely to

commit similar offenses.”

At the conclusion of the sentencing hearing, the trial court denied all forms of

alternative sentencing and determined that Poston would serve his two-year sentence in the

Tennessee Department of Correction. Poston filed a timely notice of appeal.

ANALYSIS

Poston argues that the trial court erred in denying him an alternative sentence.

Although Poston initially contends that he was entitled to a statutory presumption that he was

a favorable candidate for alternative sentencing, he acknowledges in his reply brief that he

should only be considered a favorable candidate for alternative sentencing under the current

law. He also acknowledges that he bears the burden of proving his suitability for full

probation and contends that he has satisfied this burden. Pursuant to the factors in State v.

Blackhurst, 70 S.W.3d 88, 97 (Tenn. Crim. App. 2001), he argues that he has met his burden

of proving that he is a good candidate for full probation because he has no criminal history,

has been married for the past twenty-three years, has mild dementia, is currently disabled, has

debilitating physical health problems, has expressed remorse and accepted responsibility for

his crime, has fully cooperated with law enforcement, owns his own home, has family that

will take care of him as needed, has no history of drug or alcohol use, has a good reputation

in the community, had a consistent work history prior to becoming disabled, and was a good

father and loved the victim. Poston also argues that a probationary sentence will serve the

ends of justice and the best interest of both the public and the defendant. He claims that the

public’s interest weighs in favor of a probationary sentence because he has no criminal

history and little likelihood of re-offending. Moreover, he argues that his interest weighs in

favor of a probationary sentence because “[i]ncarceration runs the risk of so disrupting his

continued health care [that] he could die” and “[t]here is nothing to suggest that incarceration

is necessary to impress upon him the gravity of his actions.” Finally, Poston contends that

the nature of the offense does not support the application of Tennessee Code Annotated

section 40-35-103(1)(B).

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In response, the State contendsthat although Poston’s offense classification and range

established his eligibility for an alternative sentence, he failed to satisfy his burden of proving

he was a suitable candidate for full probation. The State also argues that the trial court

properly determined that confinement was necessary to avoid depreciating the seriousness

of the offense pursuant to Tennessee Code Annotated section 40-35-103(1)(B). Upon

review, we disagree with the State and conclude that the two-year sentence of confinement

was improper in this particular case.

On appeal, we must review issues regarding the length and manner of service of a

sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.

§ 40-35-401(d) (2006). 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). This means that if the trial court followed the

statutory sentencing procedure, made adequate findings of fact that are supported by the

record, and gave due consideration and proper weight to the factors and principles that are

relevant to sentencing under the 1989 Sentencing Act, this court “may not disturb the

sentence even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d

785, 789 (Tenn. Crim. App. 1991). The defendant has the burden of showing the impropriety

of the sentence. T.C.A. § 40-35-401(d), Sentencing Comm’n Comments. Because the trial

court improperly applied section 40-35-103(1)(B) in imposing a sentence of confinement,

our review is de novo without a presumption of correctness.

Any sentence that does not involve complete confinement is an alternative sentence.

See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). A trial court, when sentencing

a defendant or determining an alternative sentence, must consider the following:

(1) The evidence, if any, received at the trial and the 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 involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

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(7) Any statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

T.C.A. § 40-35-210(b) (2006); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002); State v.

Osborne, 251 S.W.3d 1, 24 (Tenn. Crim. App. 2007).

Tennessee Code Annotated section 40-35-102(5) (2006) gives courts guidance about

the types of defendants who should be required to serve their sentences in confinement:

In recognition that state prison capacities and the funds to build and

maintain them are limited, convicted felons committing the most severe

offenses, possessing criminal histories evincing a clear disregard for the laws

and morals of society, and evincing failure of past efforts at rehabilitation shall

be given first priority regarding sentencing involving incarceration[.]

Poston argues that he is a favorable candidate for alternative sentencing. Tennessee

Code Annotated section 40-35-102(6)(A) states that a defendant who does not require

confinement under subsection (5) and “who is an especially mitigated or standard offender

convicted of a Class C, D, or E felony, should be considered as a favorable candidate for

alternative sentencing options in the absence of evidence to the contrary[.]” However, a trial

court “shall consider, but is not bound by, the advisory sentencing guideline” in section 40-

35-102(6)(A). T.C.A. § 40-35-102(6)(D). A trial court should consider the following when

determining whether there is “evidence to the contrary” that would prevent an individual

from receiving alternative sentencing:

(A) Confinement is necessary to protectsociety by restraining a defendant who

has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant[.]

Id. § 40-35-103(1)(A)-(C); Ashby, 823 S.W.2d at 169.

We note that the trial court’s determination of whether the defendant is entitled to an

alternative sentence and whether the defendant is a suitable candidate for full probation are

different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477

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(Tenn. Crim. App. 1996). Where a defendant is considered a favorable candidate for

alternative sentencing, the State has the burden of presenting evidence to the contrary. State

v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on other grounds by

State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, the defendant has the burden of

establishing his suitability for full probation, even if the defendant is considered a favorable

candidate for alternative sentencing. Id. (citing T.C.A. § 40-35-303(b)).

Here, Poston was eligible for probation because his sentence was ten years or less and

the offense for which he was sentenced was not specifically excluded by statute. T.C.A. §

40-35-303(a) (2006). The trial court shall automatically consider probation as a sentencing

alternative for eligible defendants; however, the defendant bears the burden of proving his

or her suitability for probation. Id. § 40-35-303(b). Accordingly, “the defendant is not

automatically entitled to probation as a matter of law.” Id. § 40-35-303(b), Sentencing

Comm’n Comments. Instead, the defendant must demonstrate that probation would serve

the ends of justice and the best interests of both the public and the defendant. State v.

Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citations omitted).

When considering probation, the trial court should consider the nature and

circumstances of the offense, the defendant’s criminal record, the defendant’s background

and social history, his present condition, including physical and mental condition, the

deterrent effect on the defendant, and the best interests of the defendant and the public. See

State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568

S.W.2d 285 (Tenn. 1978)); see also Blackhurst, 70 S.W.3d at 97. The court should also

consider the potential for rehabilitation or treatment of the defendant in determining the

appropriate sentence. T.C.A. § 40-35-103(5). In addition, the principles of sentencing

require the sentence to be “no greater than that deserved for the offense committed” and “the

least severe measure necessary to achieve the purposes for which the sentence is imposed.”

Id. § 40-35-103(2), (4). In addition, “[t]he potential or lack of potential for the rehabilitation

or treatment of the defendant should be considered in determining the sentence alternative

or length of a term to be imposed[,]” and “[t]he length of a term of probation may reflect the

length of a treatment or rehabilitation program in which participation is a condition of the

sentence[.]” Id. § 40-35-103(5).

In this case, Poston agreed to a two-yearsentence pursuant to his plea agreement. The

record shows that Poston fatally shot his adult step-son during an argument. Here, the trial

court, in imposing a sentence of total confinement, relied on section 40-35-103(1)(B), that

is, that “[c]onfinement [was] necessary to avoid depreciating the seriousness of the offense

or confinement [was] particularly suited to provide an effective deterrence to others likely

to commit similar offenses.” A review of the record shows that no proof was presented at

the sentencing hearing regarding the need to deter others from committing similar offenses

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pursuant to section 40-35-103(1)(B). See State v. Nunley, 22 S.W.3d 282, 286 (Tenn. Crim.

App. 1999) (holding that in order to use deterrence as a justification for confinement,

evidence must be presented indicating some special need for deterrence in that jurisdiction).

Accordingly, deterrence is an inappropriate justification for the imposition of a sentence of

confinement in this case.

We must next consider whether confinement was justified based on the need to avoid

depreciating the seriousness of the offense. It is well established that an alternative sentence

may be denied based on the nature or circumstances of the offense where “the criminal act,

as committed, would be described as especially violent, horrifying, shocking, reprehensible,

offensive, or otherwise of an excessive or exaggerated degree; and . . . the nature of the

offense, as committed, outweighed all other factors” favoring an alternative sentence. State

v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); State v. Bottoms, 87 S.W.3d 95, 103 (Tenn.

Crim. App. 2001); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991).

Therefore, an alternative sentence may be denied pursuant to section 40-35-103(1)(B) where

confinement is necessary to avoid depreciating the seriousness of the offense because the

offense meets the Travis prerequisites. Upon de novo review without a presumption of

correctness, we conclude an alternative sentence is appropriate in Poston’s case because the

nature of the offense, although tragic, did not outweigh all other factors favoring an

alternative sentence. We also conclude that the record does not support the trial court’s

implicit determination that Poston failed to satisfy his burden of establishing that he is a

suitable candidate for full probation. See T.C.A. § 40-35-303(b).

Viewing the record as a whole, we give weight to the fact that Poston has no criminal

history, is physically disabled, hassignificant health problemsthat require him to be regularly

seen by doctors and treated with approximately thirty prescriptions, has dementia, has

expressed remorse for his crime, has fully cooperated with law enforcement, has supportive

family members who help take care of him, has no history of drug or alcohol use, and had

a consistent work history prior to becoming disabled. We note that, if a defendant is “of ill

health and requires constant medical attention[,]” this may be a factor in favor of alternative

sentencing. State v. Thomas L. Matthews, No. 02C01-9704-CR-00158, 1998 WL 148317,

at *3 (Tenn. Crim. App., at Jackson, Mar. 31, 1998) (citing Ashby, 823 S.W.2d at 170),

perm. app. denied, (Tenn. Dec. 28, 1998). In addition, we note that a defendant’s claim of

innocence or self-defense should be considered by the trial court at sentencing. See State v.

Teague, 897 S.W.2d 248, 256 (Tenn. 1995) (“[A] defendant [in a capital case] has the right

to present at the sentencing hearing, whether by the jury which heard the guilt phase or by

a jury on resentencing, evidence relating to the circumstances of the crime or the aggravating

or mitigating circumstances, including evidence which may mitigate his culpability.”). Most

importantly, we give great weight to the fact that Poston is a good candidate for

rehabilitation. After reviewing these factors, we conclude that the trial court’s decision to

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impose a sentence of total incarceration is not supported by the record. See State v. Ballard

Eugene Anderson, No. 03C01-9902-CR-00084, 2000 WL 122218, at *8 (Tenn. Crim. App.,

at Knoxville, Jan. 26, 2000) (modifying the defendant’s four-year sentence of confinement

to a two-year sentence to be served on supervised probation where the court concluded that

neither the circumstances of the offense nor the need to deter others from committing a

similar crime applied). Therefore, we sentence Poston to serve his two-year sentence on

supervised probation.

CONCLUSION

Upon review, we reverse the judgment of the trial court and remand the case for entry

of a judgment sentencing Poston to serve his two-year sentence on supervised probation.

______________________________

CAMILLE R. McMULLEN, JUDGE

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