# FILED
May 1, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C01-9605-CR-00202 Appellee, ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER, LISA D. CASLIN, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
DONNA R. M ILLER JOHN KNOX WALKUP Asst. Public Defender Attorney General & Repor ter 701 Cherry St. Suite 300 SANDY R. COPOUS Chattanooga, TN 37402 Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 GARY D. GERBITZ District Attorney General YOLANDA MITCHELL Asst. District Attor

ney General City-County Courts Bld g. Chattanooga, TN 37402

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

The defendant was indictedon September 14, 1994, for the first-deg ree murder of Christopher Robinson. She pled guilty to voluntary manslaughter, a Class C felony, on October

9, 1995. Afte r a sentencing he aring, the trial court sentenced h er as a Range I standard offender to four years in the

Tennessee Department of Correction

. In this appeal as of right, the defendant asserts that the trial court erred by not sente ncing her to the minimum sentence and by not granting h er probation or a lternative sente ncing. After a review of

the record, we find no err or and affirm the judgment of the court below.

The defendant and the victim, Chri stopher Robinson, had dated each ot her fora period of one to two year s. Robinson was the f ather of the defendant’s second ch ild. A t the sentencing hearing,the defendant testified that her relat ionship with the victim was a violent one and that on different occasions the victim had slapped her, had thrown her against things, ha d choked her, and had preten ded to suffocate her. She further testified that the victim’s abuse of alcoho l contributed to their problems.

On the evening of May 9, 1994, the victim and the defe ndant attended a barbeque at a relative’s home. The d efendant testified that thevictim had been drinkin g beer and that he had threatened her with a baseball bat earlier i n the day. The defendant left the barbeque and retu rned to the house she shared with her mother. In the early morning hours of May

10, the victim also returned to the home. The defendant tes tified that she had been upset about the lateness of the hour and that she asked the vict im to leave. She testified that the victim had then started pushing her and slapping her. The victim then rushed toward h er and attem pted to choke her. She then pulle d a pocket3

knife from her pants pocket and stabbed the v ictim. When she realized th at the victim
was bleeding, the defendant yelled for her mother and asked her to call 9 11. As they waited for paramedics to arriv e, the defendant a n d her mother applied pressure to the victim’s two stab wounds. The victim died shortly after arriving at the hospital.

The defendant now complains that she should have recei ved the minimum sentence and that she should have received probation or alternative sentenci ng. When
a defendant com plains of his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appeal ing party. T.C.A. § 40- 35-401(d) Sentencing Commission Comment s. This presumption, however, “is conditio ned upon the aff irmative showing in the record that the tri al court considered t he senten cing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
A portion of the Sentencing Reform A ct of 1989, codified at T.C.A. § 40-35-210, established a number of specific procedures to be followed in sent encing. This section m andates the co urt’s considerat ion of the fo llowing:

(1) The evidence, if any, re ceiv ed at the trial and the s e ntencing hearing; (2) [t]he pres entence report; (3) [t]he principles

of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the cr iminal conduct involved; (5) [e] vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his own behalf about sentencing. T.C.A. § 40-35-210.

In addition, t his section

provides that the mini mum sent ence within the ran ge4

is the presumptive sentence. If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhanc e the sentence as appropriate for the enhancementfactors and th en reduce the se ntence within the range as appropriate forthe mitigating factors. If there are no mitigating factors, the court may set the sentence above the minimum in that range but still within the range. The w eight to be given each factor is left to the discretion of the trial judge. State v. Shel t on , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

The Act further provides that “[w]henever the court imposes a sentence, it shall place on the record either orally or in writing, what enhancement or mitigating factors it found, if any, as well as findings of fact as requir ed by § 40-35-209.” T.C.A. § 40-35-210(f) (emphasis added). Because ofthe importance of enhancing and mitigating factors under the sentencing guid elines, even the absence of these factors must be recorded if none are found. T.C.A. § 40-35-210 comm ent. These findings by the tri a l judge must be recorded in order to allow an adequate review on appeal.

The defend ant was sentenced to four y ears in prison. As a Ran ge I standard offender, the sentencing range for Class C felonies is not l ess than three but no
more than six years. T.C.A. § 40-35-112(a)(3). The defendant claims that th e trial court erred by not sentencing her to the minimum amount of time within the range. The trial court found two enhancingfactors applied to the defendant, thus creating a need to depart from the minimum penalty.

The trial court specifical ly found that the defendant had a history of previ ous convictions

beyond that necessary to establis h the appropriate range and tha t the1 The trialcourt mistakenl y state d that t he defendant had been i ndicted for second-degree murder; she w as actually indicted for first -degree mu rder.

5 defendant used a deadly weapon dur ing the commission of the offense. T.C.A. § 40-35-1 14(1) an d (9). T he appli cation o f t hese enh ancement factors is obviously correct. The defendant has been previously convicted of assaul

t, and sh e used a k

nife in the commission of the offense for whic h she has now been convic ted.
As to the mitigating factor s, the trial court stated:
And in consider

ing the mi ti gating factors, if she had been conv i cted by a jury of second degree murder, then I mi ght find number 2 and number 3, but on vol unta r y manslaughter

where she’ s actually pleading to a lesser offense, I’m not sure that her conduct could be excused.

. . . [A]nd then number 11, that although guilty of the crime, committe d th e offense under such unusual circumstan ces, again, the fact she pled to a lower, lesser offense I don’t really believe applies. Of course, I have to, on miti gati ng factors, only consider voluntary manslaughter. I can’t consider the fact that she was charged with second degree [ sic] murder. I do find, though, that it was a domestic situation in the sense that they were parents of the

same child and that they had squabbled and fought at times . Of course, I don’t think ther e’s any question that she used excessiv e force in this case. I believe that the enhancing factors outwei gh the mitigating factors, and the proper sente n ce is four years in the Department of Correction[ ].
The defendant argu es th at the trial court erred when it considered the defendant’s indicted offense rather than the offense for which she was convicted. 1 While the trial judge does mention that the defendant was i ndicted for a more serious offense, he then states that he will not consider that

fact. He addressed the possibl e mitigating factors offered by the defendant but rejecte d those which he felt had been considered in reachi ng th e plea agreement for voluntar y manslaughter. These factors from T.C.A. §6

40-35-113 i ncluded : that the defendant acted under strong provocation(2); that substantial grounds existed to excuse or justify th e defendant’s criminal conduct( 3); and that the defendant, although guilty of the crime, acted under such unusual cir cumstances that it is unlikely a sustained intent to viol ate the law motivated her conduct(11).

This Court has used the term “doubl e mitigation” to refer to s ituations when the defendant has been convicted of a lesser offense rather than with what he o r she was indicted and when this factor is us ed to mitigate the length of a de fendant’s sentence. While such “double mitigation” is not prohibited by T.C .A. § 40-35-113, t he decision of whether to “double mitigate”

is an act of di scretion, r eviewabl e under the sa me standards
as all other sentencing i ssues. State v. Ricky D. C lanton , No. 01C01-9302-CC-00072, Bedford County (Tenn. Crim. App. fil ed Dec. 30, 1993, at Nashville); State v. Cindy Ly nn Smith , No. 03C01-9206-CR-00219, H amblen County (Tenn. Crim. A pp. filed March 25, 1993, at Knoxville). A

s in Clanton , where the defendant was i ndicted for second-degree murder but pled guilty

to voluntary manslaughter, we find that the trial court did not err by failing to “double mitig ate.” We further find that no other mitigating factors apply to this defendant. Thus, the trial court did not err when it s entenced th is defendant to four years, one year abov

e the minimum sentence.

The defendant next complains that she s ho uld have been granted p robation
or an alternative sentence. Tennessee Code Annotat ed § 40-35-103 sets o u t sentencing considerati ons w hich are guidelines for det ermining whether or not a def enda nt should be incarcerated. These include the need “to protect s ociety by restraining a defendant who has a lon g history of criminal conduct,” the need “to avoid depreciating th e seriousness of the offense,” the dete rmination that “confinement is7

particularlysuited to provide an effectiv e deterrence to others lik ely to commit similar offenses,” or the determination that “measu res less restricti ve than conf i nement have frequently or recently

been applied unsuccessfully to the defendant.” T.C.A. § 40-35-103(1).

In addition, the legislature established certain sentencing principles which include the fo llowing:

(5) In recognition that stat e prison capacities and the funds to build and maintain them are limited, c onvicted felon s committing the mos t severe offenses, possessing criminal historiesevincing a clear d isregard for the laws and morals of society, and evincing failure o f past efforts at rehabilitation shall be given first pr io rity regarding

sentencing involv

ing incarceration; and (6) A defendant who does not fall w ithin the parameters of subdivision (5) and is an especially mitigated or standard offenderconvicted of a Class C, D or E felony is presumed to be a favorable candidate for alte rnative sentencing options in the abse nce of evi dence to the cont rary. T.C.A. § 40-35-102.

After reviewing the s

tatutes set

out above, it is obvi ous that the intent of the legislature is to enco urage alt ernatives to incarce ration in cases wh ere defend ants are sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However, it is a lso clea r that there is an intent to incarcerate those defendants w hose criminal historiesindicate a clear disregard for the laws andmorals of society and a failur e of past efforts to rehabilitate.

The defendant was convicted of a Class C felony, therefore, she is2 The defendant was pregnant with her third chi ld at t he time of the sent encing heari ng. 8 presum e d to be an eligible candidat e for alternative sentenci ng in the absence of evidence to the contrary. The trial judge found that incarceration was necessary for this defendant in order to avoid depreciating the seriousness of the offense . He also cited the defendant’s previous conviction for ass aul t as further evidence of the need for incarceration. T he defend ant was convicted of ass ault after stabbing her broth er four times. For the assault convi ction, she was given a suspended sentence of eleven months, twe nty-nin e days. Thus, it appears to this Court that measures le ss restrictive tha n confinement have been used unsuccessful ly with this defendant.

The defendant argues that the tria l court should have considered the fact that she now has thre e yo ung children. 2 While we sympathize with this fact, we do not think it is reason enough to g rant probation or an alternat ive sentence. The defendant has
a poor social history in that she did not recei ve her high school diploma, she has worked off and on for only a few months, and she supports herself only with money r eceived from AFDC. Additionally, after the de ath of the victim, she engag ed in a relationship wi th the father of her first c

hild and beca me pregnant for a third time des pite the fact that thefather has never supported the firs t child.

Furthermore, the defendant results to viol ence as a way to settle arguments. She stabbed her brother four times and evidently learned nothing from the incident as she later stabbed and killed the victim in this case. We think the trial judge did not abuse h is discretion in denying probation or alternative sentenci ng for this defendant. She has failed to carry her burden of showing that the sentence is improper.9 Th erefore, the defendant’s sentence as determine d by the trial court i s affirmed.

JOHN H. PEAY, Judge

CONCUR:

PAUL G. SUMMERS, Ju dge

CORNELIA A. CLARK , Special Judge