# FILED
May 28, 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

MARK STEVEN GRIMSLEY, ) C.C.A. No. 03C01-9701-CR-00017 ) HAMILTON COUNTY Appellant, )

) Hon. Douglas A. Meyer, Judge VS. ) ) (DENIAL OF PROBATION) STATE OF TENN ESSEE, ) Nos. 201904 and 201944 BELOW ) Appellee. )

FOR THE APPELLANT : FOR THE APPELLEE : JERRY H. SUMMERS JOHN KNOX WALKUP Summers & Wyatt, P.C. Attorney General and Repor ter 500 Lindsay Street Chattanooga, TN 37402 MICHAEL J. FAHEY, II Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 WILLIAM H. COX, III District Attorney General THOMAS J. EVANS Assistant District A

ttorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 LEROY PHILLIPS Special Prosecutor 312 Vine Street Chattanooga, TN 37402

OPINION FILED:__________________
AFFIRMED CORNELIA A. CLARK, Special Judge2 OPINION
Defendant appeals as of right from the tr ial court’s denialof probation after his plea of guilty to two counts of solicitation to commit second degree murder. He raises five is

sues fo rconsideration. We affirm the judgment of the trial court.

In 1990 defendant, a successful physician, was divorced from his wife of ten years. She was granted custod y of their two daughters.Defendant initially claimed that his wife was a lesb ian. He later asserted that hi s ex-wife and her new husband
were sexually

abusing the two gir

ls, as well as subj ecting them to satanic cult rituals. A heated custody battle ensued. In October 1991 custod y was tempora ril y transferred to the defendant’s mother and access of both parties to the children w as limited. The litigation continued until June 1992, when defendant’s ex -w ife was again awarded custody of their daughters. Defendant strong ly disagreed wi th the court’s custody decision, and continued to assert that his daughters were in danger.

In May 1994 the defendant, met with a TBI agent whom he believ ed to be a Floridahit man. He hiredthe agent to kill his e x-wife and as “gravy”, her husband. He took the agent to their reside nce, drew maps of their home floor plan, described theirsecurit y sys tem, and made a $2,000.00 down payment on the $15,000.00 price to hav e the couple killed. He w as indicted on two counts of solicitation t o commit f irst degre e murder , a Class B f elony.

On January 8, 1996, defendant entered a plea of guilty under the principles of North Carolina v. Alford , 400 U.S. 25, 39, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to two counts of solicitation to co mmit s econd de gree murd er, a Class C felony. The parties agreed that the defendant was a Range I standard offender and that the sentences would be run con currentl y. All other sentencing i ssues were left open. After a sentencing hearing on April 1, 1996, the court imposed sentences of three years on each count. The court fou nd th at “the circumstances of the case were3

especially shocking, reprehensibl e in excessive and e x aggerated degree.” The court den ied defe ndant’s request f or any for m of alte rnative sentencing, citing the need to avoid depreciat ing the seriousness of the offense under T.C.A. §40-35-103(b). Defendant did not file a notice of appeal,and volunt arily entered custody on May 28, 1996. A wai ver of appeal was

filed with and accepted by the trial court.
On August 29, 1996, while awaiting transfer to the Tennessee Department of Corrections, defendant filed a motion to suspen d the remainder of his sentence. Followinga hearing on September 9, 1996, that motion was denied, in part because the defendant had mailed to various churches c opies of psychological reports placed under seal during the custody pr oceedings. No appeal w as taken from that denial.

On December 6, 1996, defendant filed a second motion to suspend his sentence. A lengthy evidenti ary hearingwas conducted December 16, 1996, and the petition once again w as denied. A timely notice of appeal w as filed following that decision.
Although defendant in his brief raises issues about the trial court’s actio ns on April 1 and September 9, 1996, those actions are not b efore the court in this appeal. Appeal of the original sentence was waived in wri ting. See Rule 37(d), Tenn. R. Crim. P. No n otice of appeal was filed concer ning the action taken in Sept ember 1996 and th erefore the right to appeal tha t ruling also has been w aived. Id. Th e only issue before us is the denial of probation on December 16, 1996.

Before a trial court may g rant probation to an accused w ho has been sentenced to the Department of Correc tion and is awaiting transfer, (a) the trial court must have jurisdicti on to enter the judgment, (b) the accus ed must be confined to the county jail or w

orkhouse, (c) the

nature of the offense and the length of the4

sentence must not bar probation, and (d) it must be in the best int eres t of society and the accused togrant the accused probation. If these pr erequisites are present , the trial court may grant the acc used probation. State v. Karon L. Washington , No. 02C01-9510-CC-00306 (Tenn. Crim. App., Jackson, July 26, 1996). In this case the first three prerequisites ha ve been met, and the issue before the court conc erns the last prerequisite - w

hat is in the best interest of society and the defendant. The tri al court found that no material cha nges had occurred since the time of the original sentencing hearing or the first re quest for probation. The court found no circumstances that woul d warrant or justify suspending defendant’s sentence.

We have carefully rev iewed the e ntire rec ord and trial court’s ac tions on December

16, 1996. The decision to grant or de ny probati on at that tim e was within the court’s discretion. We find no basis for reversal. The judgment of the trial court is affirmed pursuant to Rule 20, Tenn. R . Ct. Crim. App.

_____ _____ _______________________ _ CORNELIA A. CLARK SPECIAL JUDGE

CONCUR:

__________________________________ JOHN H. PEAY JUDGE

__________________________________ PAUL G. SUMMERS JUDGEIN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE

MARK STEVEN GRIMSLEY, ) C.C.A. No. 03C01-9701-CR-00017 ) HAMILTON COUNTY Appellant, )

) Hon. Douglas A. Meyer, Judge VS. ) ) (DENIAL OF PROBATION) STATE OF TENN ESSEE, ) Nos. 201904 and 201944 BELOW ) Appellee. )

JUDGMENT
Came the appellant, Mark Steve n Grimsle y, by counsel and also came the attorney general on behalf of the state, and this case was heard on the record on appeal from the Crimin al Cour t of Hami lton Cou nty; an d upon co nsidera tion the reof, this court is of the opinion that there is no reversible error in the judgment of the trial court. Our opinion

is hereby

incorporat

ed in this j udgment as if set out ver batim. It is, therefore, ordered and adjudged by this court that the judgment of the t rial court is AFFIRMED, and the case is remanded to the Cr iminal Court of Hamilton County

for exe cution of the judgment of that court and for collection of costs acc rued belo w. Costs of this appeal wil l be paid by the appellant.
PER CURI AM John H. Peay, Jud ge Paul G. Summe rs, Judge Cornelia A. Clark, Special Judge