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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

OCTOBER 1999 SESSION

STATE OF TENNESSEE, )

) C.C.A. No. W1999-01760-CCA-R3-CD

Appellee, )

) Shelby County

v. )

) Honorable Carolyn Wade Blackett, Judge

CARLOS A. CURRY, )

) (Sentencing)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

MARK A. MESLER PAUL G. SUMMERS

Ballin, Ballin & Fishman Attorney General & Reporter

200 Jefferson Avenue, Suite 1250

Memphis, TN 38103 J. ROSS DYER

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

WILLIAM L. GIBBONS

District Attorney General

MICHAEL H. LEAVITT

Assistant District Attorney General

201 Poplar Avenue, Suite 301

Memphis, TN 38103-1947

OPINION FILED: __________________________________________

AFFIRMED

ALAN E. GLENN, JUDGE

O P I N I O N

The defendant, Carlos A. Curry, was indicted by the Shelby County Grand Jury and

charged with evading arrest in a motor vehicle and possession of a handgun in a public

FILED

December 16, 1999

Cecil Crowson, Jr.

Appellate Court Clerk
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place. Pursuant to a negotiated plea agreement, he pleaded guilty to both of these

offenses, receiving sentences of six months for evading arrest and thirty days for

possession of a handgun in a public place. The trial court denied his petition to suspend

these sentences, a decision which he timely appealed. Based upon our review, we affirm

the judgment of the trial court.

FACTS

During the hearing on the defendant’s petition for suspension of sentence, it was

made clear that there was substantial variance between the defendant’s version of the

incident which resulted in his arrest and that of the police officers. According to the

assistant district attorney representing the State of Tennessee, the officers reported that

the following occurred [Questions by General Leavitt]:

At a high rate of speed. You turned onto I-40. The officers

initiated the emergency equipment and siren. You accelerated

to approximately eighty miles an hour, then slowed to thirty

miles an hour and pulled to the emergency lane but still did not

stop. You continued for approximately one mile nearly causing

an accident at Perkins on the entrance ramp.

They observed Mr. Austin throwing baggies from the

passenger window, and observed you and Mr. Austin making

movements and passing a silver object back and forth.

When finally pulled to a stop and both of you bailed out.

Defendant was apprehended after a short chase. The

defendant while running pulled the pistol from his waistband

and threw it to the ground. The weapon was loaded with one

in the chamber and five in the magazine.

You were arrested. The gun was recovered. And they

went back and they found two plastic bags with marijuana

residue, one in the vehicle and one on the ground beside the

vehicle. Both you and Mr. Austin said that the gun belonged

to the other person.

In contrast, the defendant gave the following explanation of the incident:

Me and Jack, we left the house and we got off on Perkins.

The undercover cop he was trailing us behind. He pulled us

over at the Perkins exit.

I got out, went to the car. I came back to my car. Then at

the time I found out that Jack had a pistol. So I knew that I’m

a felon already on a pistol charge, so I told him, I said you are

going to take that charge and he said no, he’s not going to take

the charge. So I jumped out of the car and I ran.

According to the presentence report, the defendant was 25 years old, married, with

two children, and employed for approximately the past six months as a forklift driver. He
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was a graduate of Byhalia, Mississippi, High School. He had two prior convictions. In

1994, he was convicted of attempt to commit a felony, for which he had received a twoyear sentence at the Shelby County Correctional Center. He was convicted in 1994 of a

“weapons offense” and sentenced to a six months sentence. He did not seek probation

for these sentences which were served concurrently. According to the defendant, he was

attending a heating and air conditioning school at the time of the hearing. 

In denying the petition for suspension of sentence, the trial court stated:

Mr. Curry, would you please stand up. The Court has

looked at your criminal history, and you do have several other

offenses that you’ve been convicted of. In addition to that, the

Court does not believe that you have been very candid with the

Court in terms of what exactly happened out there, whether or

not it was your gun or someone else’s gun, what you were

exactly doing. 

It seems very unlikely that undercover cops would just pull

over a car for no reason. And it seems even more unlikely that

you would take the gun out of your car and run with it. I don’t

know where you thought you were running to and how you

thought you could outrun a car. But that’s neither here nor

there. 

You should know that understand that today is your day

in Court. And today was your day to establish to the Court that

you were a worthy probationary candidate, which you didn’t do.

In response to the request of defense counsel that the defendant be allowed to

serve his sentence on the weekends, the court stated:

The only reason why I won’t is because I don’t believe

what he said, not for one minute, and I don’t think you did

either. And that was basically based upon the fact that it was

not only you, Mr. Mesler, but Mr. Leavitt didn’t believe it, I didn’t

believe it, and today was his day.

I am not going to sit here -- I don’t think it is my role to sit

here and pull the truth out of people. I’ve done it a couple of

times already today, but I’m not going to do it any more. So

the answer to that is no.

ANALYSIS

Since the defendant has challenged the manner of service of his sentence, we must

conduct a de novo review, presuming that the determinations made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d). The burden is on the defendant to show that

confinement is improper. State v. Bult, 989 S.W.2d 730, 734 (Tenn. Crim. App. 1998),

perm. app. denied (Tenn. 1999). Even if we applied a presumption favoring probation, as

the defendant urges, he would not be helped. Here, he has two prior convictions, one of

which was a felony, for which he served concurrent sentences at the Shelby County
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Correctional Center. Additionally, we note that his version of the incident which resulted

in his arrest was vastly different from that set out by the arresting officers. The comments

by the trial court made it clear that the defendant’s version of the events was not

believable. The court specifically told the defendant that his petition for suspended

sentence was being denied because of his prior convictions and his lack of candor while

testifying during the petition hearing. 

In denying probation, it is clear that the trial court properly considered the relevant

factors, including the defendant’s criminal record. State v. Black, 924 S.W.2d 912, 917

(Tenn. Crim. App. 1995); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995).

Additionally, it was proper for the court to consider the defendant’s lack of truthfulness. 

“The defendant’s truthfulness at a trial or sentencing hearing is a factor that may be

considered. A trial judge may deny probation on this ground.” State v. Dykes, 803 S.W.2d

250, 259-260 (Tenn. Crim. App. 1990).

The defendant has urged that we should apply the sentencing considerations of

Tenn. Code Ann. § 40-35-102(6) to this matter and consider alternative sentencing options.

However, even following such an application, the defendant’s case would fail because of

his prior record of convictions and lack of candor:

The trial court denied alternative sentencing based upon the

defendant’s lengthy history of criminal behavior, his

unsuccessful completion of less restrictive measures, and his

lack of truthfulness. See T.C.A. § 40-35-103(1)(A) and (C);

State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim. App.

1992) (lack of candor may be considered in denying alternative

sentencing). These are all proper considerations in the

determination of alternative sentencing and reflect negatively

on the defendant’s potential for rehabilitation. We agree with

the trial court’s determinations and affirm the trial court’s denial

of alternative sentencing.

State v. Anderson, 985 S.W.2d 9, 21 (Tenn. Crim. App. 1997).

Applying the holding in Anderson to this matter, we likewise agree with the decision

of the trial court that the defendant was not an appropriate candidate for alternative

sentencing.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgment of the

trial court.
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_____________________________________

ALAN E. GLENN, JUDGE

CONCUR:

__________________________________

JOHN H. PEAY, JUDGE

__________________________________

NORMA McGEE OGLE, JUDGE