# FILED
July 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9710-CC-00421 Appellee, ) ) CARROLL COUNTY VS. ) ) HON. JULIAN P. GUINN, DIRK BRADEN CARTER, ) JUDGE ) Appellant. ) (AggravatedAssault - Sentencing)

FOR THE APPELLANT : C. DAVID JONES P.O. Box 707 150 W. Main Street Huntingdon, TN 38344-0707 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MARVIN E. CLEMENTS, JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General ELEANOR CAHILL Assistant

District Attorney

General 111 Church Street P.O. Box 686 Huntingdon, TN 38344-0686

OPINION FI LED:

AFFIRMED A

S MODIFIED

JOE G. RILEY, JUDGE2 OPINION
The defendant, Dirk Braden Carter, was convicted by a Carroll County jury of aggravated assault, a Class C felony. He received a sentence of three (3) years
as a Range I, standard offender. The tr ial court ordered t hat d efendant serve six (6) months in confinement, with the remainder of defendant’s sentence to be served
on supervised probation. The trial court further orde red th at defendant be prohibited from entering the State of Tennessee during his probati onary period. On appeal, defendant claims that the tri al court erred in (1) failing to sentence him as
an especially mitigat

ed offender, a nd (2) or dering that defendant serve s ix (6)
mo nths in confinement. We find that the trial court err oneously prohibite d defendant from returning to Tennessee during his p robationary period; ther efore, the judgment is modified to delete this provision. In all o

ther respects, the judgment of the trial court is affirmed.

FACTS

On May 3, 1996, defendant, a college student living in Texas, was visiting his fathe rin Carro ll County. That evening defendant joined his father at the Carroll Lake Country Club. Defendant’s father, Harold “Chick” Carter, frequented the bar and was a known alcoholic. As the evening progre ssed, “C hick” Car ter became increasinglyintoxicated and made rude and derogatory comments towards others in the bar. “Chick” began cursing ToddWalker and Kelly Hastings, patr ons of the bar. The victim,Richard Glen Burns, wa s sitting with Walker and

Hastings at that time and walked over to defendant and his father to try and calm “Chick” Carter. Burns placed his hand on the back of “Chick” Carter’s chair and asked that he refrain from using such language. Defendant then s tated , “keep your hands off my father.” Burns told defendan t that he did not want any trouble. Defendant then grabbed Burns and bit down on Burns’ nose, biting off part of his nose. Defendant and his3

father were then thrown out of the Carroll Lake Country Club, and defendant was subsequently arrested.Burns’ injury re quired extensive medical treatment. At the time of trial, defendant was twenty-eight (28) y ears old and had no prior criminal c onviction s. He was rec eivi ng couns eling because of his father’s alcoholism and as a result o f the present offense. In determining defendant’s sentence,the trial court found one enhancement factor applicable, that

the personal injuries inflicted upon the victim were particularly great. Tenn. Code Ann. § 40-35-114(6). The trial court found no specific statutory mitigating factors to apply, but found in mitigation that defendant had n o prio r record, was undergoing couns eling, was atten di ng college, was w orking and had strong family support. See Tenn. Code Ann. § 40-35-113(13). The trial court, therefore, imposed the minimum senten ce of three (3) years as a R ange I, standard offender. The trial court next co nsidered alternative sentencing as required by statute. However, the trial court found that a period of incarceration was warranted considering the inex plicable and extreme nature of th e off ense committe d. As a result, defendant was ordered to serve six (6) months in confinement, with ther emainder of his sentence to be serv ed on supervised probation. Defendant now brin gs this appeal as of rig ht.

STANDARD OF REVIEW

This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presu mption is conditio ned upon an affi rmative sh owi ng in th e record that th e trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directi ves, there is no presumpti on of correctness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (T enn. 1997). The b urd en is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40- 35-401(d) Sentencing Commission Comments.4

In conducting our review, w e are required, pursuant to Tenn. Code Ann. § 40-35- 210, to consid er the following f actors in senten cing: (1) [t]he evi dence, if any, received at the trial and the sentencing hearing; (2) [t]hepresentence report; (3) [ t]he principles

of sentencing and arguments as to sentencing alternatives; (4)

[t ]he nature and characteristics of the criminal conduct involv e d; (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 state ment the defendant wishes to make in hi s own behalf abo ut sentencing.

ESPECIALLY M ITIGATED OFF ENDER

In his first issue, defendant contends that the trial court erred in sentencing him as a standard offender. He argues that the trial court err

oneously applied Tenn. Code Ann. § 40-35-114(6), that the victim’s injuries were particularly great, because this enhancement factor is inherent in theoffense of aggravated assault. Therefore, because the trial court found a pp licable mitigating factors, he insists that the t rial court abused its discre tion in failing t o se ntence him as an especially mitigated offender. Tenn. Code Ann. § 40-35 -109 (a) provides that a tr ial court ”may find the defendant is an especially miti gated offender, if: (1) [t]he defendant has no prior felony convictions; and (2) [t]he court finds mitigating , but no enhancement factors.” However, whether a defendant is sentenced as an especially mitigated of fender is
a determination that rests w ithin the sound discretion of the trial court. Stat e v. Hicks , 868 S.W.2d 729, 730 -31 (Tenn. Crim. App. 1993); State v. Braden , 867 S.W.2d 750, 762-63 (Tenn. Crim. App. 1993). Thi s provision is not man datory. Braden , 867 S.W.2d at 762-63. Indeed, especially miti gated statusis reserved for “insta nces where the trial judg e may desire to depart from ev en the m inimu m sentence for a Range I offender and impose less er penalties.” Tenn. Code Ann. § 40-35-109, Sentencing Commission Comments. The state concedes that the trial court misapplied Tenn. Code Ann. § 40-35- 114(6), as it is inherent in the offense of aggr avated assault as a result of serious bodilyinjury. We agree. See State v. Jones , 883 S.W.2d 597, 60 2 (Tenn. 1994).5

However, upon our de novo review of the record , we find that another enhancement factor would applyin this case. Defendant admitted in the pre-sente nce report that he had used marijuana in the past, evi dencing past criminal beha vior. See

Tenn. Code Ann. § 40-35-114(1). While this factor would be given little weight to enhance defendant’s sentence, it is an enhancement factor and is certainly relevant in determining whether a defendant should be sentenced as an especially mitigat

ed offender. Furthermore, considering the nature, facts and circumstances of the offense,
we find that the trial court di d no t abuse its discretion in refusing to sentence defendant as an especially mitigated offe nder. This issue is without merit.

PROBATION

Defendant next argues that the trial court err ed in failing to grant to tal probation. He claims that a six (6) month period of incarcer ation is unwarranted

in this case due to his lack of prior r ecord, hi s good wo rk and social history and his favorable potential for rehabilitatio n. He, therefore, contends that the trial co urt should have granted full probati on or, in theal ternative, a lesser per iod of confinement. A. An especially mitigated or standard offender convicted of a Class C, D or E felony is pres umed to be

a fa vorable c andidate for alternative sent encing in the absence of evidence to the contrary . Tenn. Code Ann. § 40-35-102(6).Atrial court must presume that a defendant sentenced to eight years or less and who

is not an offenderfor whom incarceration i s a priority is s ubjec t to alte rnative sentenc ing. State v. Byrd , 861 S.W.2d 377, 379-80 (Tenn

. Crim. App. 1993). It is further p resumed that a sentence other than incar ceration would result

in s uccessf u l rehabilitation unless rebutted by su fficient evidence in the recor d. Id. at 380. However, although a defendant may be presumed to be a favor able candidatefor6

alternative sentencing , the defendanthas the burden of establishing suit ability for total probation. State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Ten n. Code An n. § 40-35-303(b). Even though probation must be automa tically considered, “the defendantis not automatically entitled to probation as a matter of law.”Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State v. Hartley , 818 S.W.2d 370, 37 3 (Tenn. Crim. App. 1991). I n determining whether to grant or deny probation, a trial court shoul d consider the circumstances of the offense, the defendant's criminal record, the defendant’s social historyand present condition, the need for det errence, and the best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. B oyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State v. Black , 924 S.W.2d 912, 91 7 (Tenn. Crim. App. 1995). In determining if incarceration is appropr iate, a trial court may

consider

the need to protect socie ty by restraining a def endant having a long history of cri minal condu ct, the need to avoid depreciati ng the seriousness of the offense, w he the r confi n ement is particularly appropriate to effectively deter others likely to commit similar offenses, and whether less res trictive measures

have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); State v. Grigsby , 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997). B. In denying a sentence of total probation, the tr ial court noted that defendant committed a brutal act with little provocation or explanation. The trial court determined that the best inte rest o f the public and the defendant would not be served by a s ente nce of full probation. The trial c ourt then concluded that an incarceration period of six (6) months was necessar y to avoid depreciati ng the seriousness of the offense. At t he time of the sentencing hea ring, the victim had undergo ne fiv e surgeries

as a result of his injury. Because the initial reattachment of his nose was unsuccessful, the victim’s nose is disfigured. He is al so suffering from emotional7

trauma due to the notoriety of thi s incident in his hometow n. Alternat ive sentencing may be denied solely on the nature of the offe nse if the offense is “especially v iolent, horrifying, shocki ng, reprehensible, offensive , or ot herwise of an excessive or ex aggerated degree,” and the nature of the offens e outweighs

all factors favoring

a sentence other than confinement. State v. Leggs , 955 S.W.2d 845, 85 1 (Tenn. Crim. App. 1997) (citations omitted). The record before this Court supports the trial court’s decision that a six (6) month period of incarceration was warranted to avoid depreciating the seriousness of the offense. The defendant bit off a portion of the vic tim’s nose in response to seeminglyli tt le

to no pr ov ocat io n. We find this offense to be reprehensible and of
an excessive degree

to justify a limited

period of incarceration. Defendant has not met his burden of establishing that he is entitled to total probation. This issue is without merit.

C. This Court n otes tha t the trial court ordere d that defendant would be prohibited from returning to the State of Tennessee during his probationa ry period. We find this tobe an inappropriate condition of pro bation, especially cons idering defendant’s family ties in Tennessee. We, therefore, order that defendant’s judgment be modified to delete this provision as a conditi on of probation.

CONCLUSION

We find th at the trial court did not abuse its discretion in s entencing defendant as a Range I, standard offender. M oreover, an incarceration period of six (6) months is supported by the record. According ly, the ju dgment of the trial court is affirmed as modified to delete the pr ovision prohibiting

d efendant from returning to Tennessee.8 JOE G. RILEY, JUDGE

CONCUR:

PAUL G. SUMM ERS, JUDGE

DAVID H. WELL ES, JUDGE