# FILED

June 16, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE ) ) NO. 03C01-9706-CC-00211 Appellee ) ) COCKE COUNTY v. ) ) HON. REX HENRY OGLE CHRISTINE D. GILLILAND ) ) (Sentencing) Appellant. ) ) )
For the Appellant : For the Appellee : Tim S. Moore John Knox Walkup 396 Moore Brand Way Attorney General & Repor ter Newport, TN. 37821 Sandy C. Patrick Assistant Attorney Gener al 2nd Floor Cordell Hull

Building 425 Fifth Avenue North Nashville, TN. 37243-0943 Alfred C. Schmutzer, Jr. District Attorney General Charles E. Atchley, Jr. Assistant District A

ttorney General Sevier County Courthouse 125 Court Avenue, Suite 301 Sevierville, TN. 37862

OPINION FILED:____________________ AFFIRMED WILLIAM M. BARKER, JUDGE1 At the ti me of the shooting,appellant and Mr. Frazi er liv

ed together a nd owned the house jointl y. The appel lant appar ently spent many night

s away from home while worki ng as a truck driver for the United St

ates Postal Service. 2 OPINION The appellant, Christine D. Gilliland, appeals as of ri ght the sentence she received following

a guilty plea in the Circuit Court of Cocke C ounty. Pursuant to a plea agreement, appellant pled g uilty to aggrav ated assault and received a six (6) year sentence. The trial court ordered her to serve one hundred and twenty (120) days, day for day, in the Tennessee Department of Correction, wi th the remainder of her sentence to be served in su pervised probation. Appel lant was also requi red to pay restitution in the amount of $1,761 dollars f or the victim’s medical expenses. On appeal, the appellant contends th at she is entitled to full pr obation and that the order of restitution shoul d not have accompanied her sentenc e of confinement. After a review of the rec ord and applicable law, we affirm the judgment of the trial court. This case is yet another i llustration of how jealou sy can lead to viole nce. On the evening of March 20, 1996,the appellant shot the vic tim, Nancy Raines Fr

azier, at point blank range. The shooti ng occurred around 9:30 p.m. after the appellant returned home and discovered her then boyfriend, Albert F razier, engaged in sexual intercours

e with the v

ictim. 1 The appellant, armed with a .38 caliber pistol, approached the couple in the li ving room before they noticed her presence. Upon discovering appellant with the gun, the tw o jumped up and pleaded for her not to shoot. Nevertheless, appellant pointed her weapon at the victim and fired a bull et striking her in the r

ight cheek bone. The bullet frac tured the victim’s jaw

and exited through her right ear. The victim immediately fled out the back door and went to a neighbor’s house to call 911. The victim testified at the se ntencing hearing that she was unaware of her injury until blood began to run down her face. She w as taken by ambulance to a2 There was evidence t hat the appel lant had caught Mr. Frazi er together with t he victi m on a prior occ asio n. Th e app ellant , how ever , testif ied th at sh e did n ot su spe ct Mr . Fraz ier of b eing w ith the victim on the night

in questi on. To the contr ary, she st

ated that

she did not see

the vict im’s car parked at the house and that s he firm ly believed M r. Frazier ha d ende d his relation ship with the victim.

3 Under the plea a greement, the pro secution agr eed to dismiss t he attempted murder charge. 3 nearby hospital and giv en medical treatment there for tw o days. The bullet wound caused her to suffer physical injuries including a broken jaw, temporary blindness, nerve damage, loss of a tear- duct gland in her rig ht eye, sinus trouble, and forty percent hearing loss i n her right ear. The v ictim testified that her medica l expenses totaled approximately s eventeen hundred ($1,700) to ei ghteen hundred ($1,800) dollars. The appellant testified that she did not intend to shoot the victim and that the entire incident was a mistake. According to appellant, she fired the gun with the sole intention of scaring the victim and Mr. Frazier. She contended that the victim somehow jumped into the path of the bul let when she and Mr. Fr azier arose from the living room floor. Appellant further testified that s he owned the .38 caliber pi stol and carried it for protection while w

orking as a truck dri

ver. She stated that althoug h she normally kept the pistol in her truck,she brought it into the hous e on the night of the shooting. She denied knowing that the v ictim was with M r. Frazier before enter ing the house. 2 The Cocke County Grand Jur y indicted appellant on att empted second degree murder and aggravated as sault. Following

plea negotiations, appellant entered a guilty plea to agg ravated assault and recei ved a six (6) y

ear sentence. 3 The manner of serving her sent ence, however, was to be determined by the trial court f ollowing a sentencing hearing. According, after conducting a sentencing hearing, the trial court ordered that the six (6) year sentence was to be suspended upon service of one hundred and twenty (120) days in jail. The tri al court further ordered res titution in the amount of $1,761 as a condition of probation.4 Ten nes see Cod e An nota ted s ectio n 40- 35-1 02(5 ) prov ides that c onvic ted fe lons who com mit the most severe offe nses, possess cri minal hist ories, or demonstrate an ina bili ty to reform under past efforts at

rehabil itati on shall be given fi rst pri ority for sentences i nvolvi ng incarcerat ion. Under section 40-35-102(6), “[a] def endant who does not f all wi thin t he parameters of subdi vision ( 5) and is an especially mitiga

ted or standar

d offender convi cted of a Class C, D, or E felo ny is pr esumed to be a 4 I. The appellant first contends that sh e is entitled to full probati on for her six (6) year sentence. This iss ue is without merit. When a defendant complains of his or her sentence, we must conduct a de

novo review of the record

. See Tenn. Code Ann. § 40-35-401(d) (Supp. 1996). The sentence imposed by the trial court is accompanied by a presumption of correctness and the appealing party has the burden of showing that the sentence is improper. See Tenn. Code Ann. § 40-35-401 (Sentencing Commission Comments). However, the presumption of correctness i s conditioned upon an affirmative s howing in the record that the trial court considered the sentencing principles and all relevant facto rs and circumstances. See State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). To determine the appropriate sentenc e, the trial court must cons ider the following: (1) evidence from the trial and sentencing hearing; (2) the presentence report; (3) the princi ples of sentencing and the arg uments concerning sentencing alternatives; (4) the

nature and characteristic s of the offense; (5) information offered by the State or the defendant concer ning enhancing or mitigating factors; and (6) the defendant’s statements in her ow n behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); see also State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987). In this case, the trial c

ourt considered the eviden ce from the sentencing hearing, the presentence re port, the circumstances of the offense, and the arguments of coun sel befo re orderin g the appe llant to s erve one h undred a nd twenty (1 20) days in confinement. We, therefore, review appel lant’s sentence with a p resumption of correctness. The appellant was a presumable candidate for alternative s entencing under Tennessee Code Annotated section 40-35- 102. 4 She pled guilty to aggravatedfavorab le candid ate for altern ative sen tencing o ptions in the absen ce of ev idence to the contra ry.”

5 Even though appel lant was a pr esumable candidate f or alternative sent

encing, she had the burden of estab lishing suitab ility for full probation. See Tenn. Code A nn. § 40-35-303(b) (Supp. 199 6); State v. Bingham , 910 S.W .2d 448, 4 55 (Te nn. Crim . App. 199 5), perm. app. deni ed (Tenn. 1995). 5 assault, a Class C felony , and was sentenced as a Range I standard offender. The trial court noted that pres umption and ordered appellant to se rve the remainder of her six (6) y ear sentence

on supervi sed probatio n, upon comple tion of the ini

tial jail term. The trial court, however, determined that the appellant was not entitled to f ull probation. Based upon the risk of death and the degree of injury caused by appellant’s actions, the tr ial court ruled that one hundr ed and twenty (120) day s of incarceration was appr opriate. On appeal, the appellant has the burden of showing that the manner of her sentence was erroneous and th at she is entitled to full probation. 5 There is no bright line r ule for determining when pr obation should be granted. Nevertheless, the appell ant must demonstrate that probation w ill “subserve the ends of justice and the best interest of both the pu blic and the defendant.” See State v. Dykes , 803 S.W.2d 250, 25 9 (Tenn. Crim. App. 1990). The following criteria is relevant to that determinati on: (1) the nature and circ umstances of the criminal conduct; (2) the appellant’s potential or lack of potential for rehabilitation, inclu ding the risk that during the per

iod of probation the appellant w ill commit another crime; ( 3) whether a sentence of full probati on would unduly depreci ate the seriousness of the offense; and (4) whether a sentence other than full probation w ould provide an effective deterrent to others l ikely to commit simil ar offenses. See State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1995). The appellant does not rely upon those factors, but instead, conten ds that a probationary sentence is appropriate based upon her w illingness to plead g uilty and her status as a first-time o ffender. We disagree. The record reflects that the trial court focused on the violent na ture of appellant’s offense to deny full probation. The court found that the appellant’s ac t of shooting a defenseless vi ctim at point blank6 See State v. Da vis , 940 S.W.2d 558, 562 (Tenn. 1 997) (holdi ng that restituti on may only be imposed as a conditi on of a probati onary sente nce). In Dav is , our supreme c ourt noted that, effective July 1, 1996 , the state leg islature am ended Tenn essee Code Annota ted sec tion 40-35 -104(c )(2), to allow restitution together with a sen tence o f confine men t. See 940 S .W .2d a t 561 , n.6. H owe ver, in appellan t’s case, th at am ended statute wa s not in effe ct when she co mm itted the agg ravated assau lt. 6 range was both “atroc

ious” and life threatening. That finding was clearl y within the discretion of the trial cour t and the appellant has failed to demonst rate error. This Court has previous ly held that the circums tances surrounding a cr iminal offense may provide the sole bas is for denying probation when they are of such a nature as to outweigh al l other factors favoring probation. See State v. Fletcher , 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). We con clude that the circumstances in this case justify confinement a nd accordingly affirm the den ial of full probation. II. The appellant next contends that the trial court erred i n ordering both incarceration and the payment of restitution. She argues that the sentencing laws in effect at the time of her offense precluded the order of restitution as part of a custo dial sentence. We conclude that the order of restitution w as proper as a condition of appellant’s supervised probation. Tenn. Code Ann. § 40-35 -304(a) (Supp. 1996). The appellant was sentenced in 1997 for the aggravated ass ault committed on March 20, 1996. Her sent ence include

d a one hundred

and twenty

(120) day jail term, a subsequent period of supervised probation, and an orde r to pay $1,761 dollars in restitution. The appellant cont ends that restitution was improper in conjunction w ith her sentence of confinement. The record, h owever, reflects that restitution was imposed as a condition of appellant’ s supervised probation, not as a part of the custodial sentence. While we agree that, at the time of appellant ’s offense, the trial court lac ked authority to order res

titution as part of incarcer ation, 6 we conclude that restitution was proper in this case. Tenness ee Code Annotated section 40-35-304 (a) authorizes tri al courts to impose restituti on as a condition of probation. The appel lant was ordered to7

serve the remainder of her six (6) year sentence on supervised probation after completion of her jail term. R estitution to compensate the v ictim’s medical expenses was specifically made

a part of the subsequent probatio n. In sum, we affirm the trial co urt’s denial of full probation and conclude that the order of restitution was proper as a condition of appell ant’s supervised probati on. Accordingly, the j udgment of the trial court is affirmed.

___________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

___________________________ JOSEPH M. TIPTON, JUDGE

___________________________ CURWOOD WITT, JR., JUDGE