The defendant’s name is spelled both “Scotty” and “Scottie” in the record. As is the custom of this court, we

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will use the spelling utilized in the indictment.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 30, 2008

STATE OF TENNESSEE v. SCOTTY D. HATFIELD1

 Appeal from the Criminal Court for Campbell County

No. 12931 E. Shayne Sexton, Judge

No. E2007-01330-CCA-R3-CD - Filed May 1, 1008

The defendant, Scotty D. Hatfield, originally charged with three counts of aggravated assault and one

count of felony reckless endangerment, was convicted of one count of attempted aggravated assault

and misdemeanor reckless endangerment. The trial court imposed an effective sentence of three

years to be served in the Department of Correction. In this appeal, the defendant contends that the

sentence is excessive and that the trial court erred by denying alternative sentencing. We affirm the

sentencing decision of the trial court. The case must be remanded, however, for the entry of a

corrected judgment reflecting that the defendant was convicted of attempted aggravated assault rather

than aggravated assault on Count 1.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed; Remanded

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and D. KELLY THOMAS, JR., JJ., joined.

Martha Yoakum, District Public Defender, and Charles Herman, Assistant District Public Defender,

for the appellant, Scotty D. Hatfield.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney

General; William Paul Phillips, District Attorney General; and Scarlett Ellis, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The transcript of the defendant’s trial was not included in the record on appeal. The

following version of events was included in the affidavit of complaint and incorporated into the

presentence report:
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Affiant learned through an investigation through the

victims[] that on 12-4-05 at approx[imately 3:15 p.m.], [the] above

named defendant confronted them at Stanfield Church located on

[highway] 297. Victims stated that the defendant got out of his

vehicle and walked over to the vehicle they w[ere] in with a gun in

his hand. Victims stated that the defendant opened the back door of

their vehicle and pointed the handgun at Danny James Ditty[,] Jr.

Victim[] Amy Renee Hatfield, wh[o] was driving the vehicle, stated

that she drove out of the church parking lot, at which time the

defendant shot at them with the handgun. Victims stated that [the]

defendant followed them down the road ([highway] 297), pointing the

handgun at them and shooting. Victims stated that the defendant then

rammed their vehicle with his vehicle. Victims stated that they

w[ere] in fear of their life and well being. Above offenses occurred

in Campbell County, T[ennessee].

Neither the State nor the defendant offered testimony at the sentencing hearing.

Instead, both relied upon the evidence adduced at trial and the contents of the presentence report.

The presentence report established that the 31-year-old defendant had two prior convictions for

driving under the influence as well as convictions for driving on a suspended license and disorderly

conduct. In addition, charges of assault, criminal trespass, and failure to appear were pending in

McCreary County, Kentucky, at the time of the sentencing hearing. The defendant admitted using

marijuana daily, explaining that “it helps him stay calm and helps him eat.” The defendant, who

resided with his fourth wife at the time of the sentencing hearing, dropped out of high school in the

tenth grade, had an unverifiable employment history, and stated that his only income was Social

Security disability payments. The defendant provided the following version of the offenses:

My 11[-]year[-]old daughter informed me that she had been molested

by her 17[-]year[-]old cousin, and without time to think I snapped and

tried my very best to kill the boy. I later after I got out of jail found

out that he had raped my [nine-]year[-]old son. And my 12[-]year[-]

old daughter as well.

Without a trial transcript, we can only assume the defendant was referring to the attempted

aggravated assault victim Danny Ditty, Jr.

In imposing sentences of three years for the attempted aggravated assault conviction

and 11 months and 29 days for the reckless endangerment conviction, the trial court applied

enhancement factors 1, that the defendant had a history of criminal convictions in addition to those

necessary to establish the appropriate range, and 9, that the defendant employed a firearm during the

commission of the offense. See T.C.A. § 40-35-114(1), (9) (2006). In mitigation, the trial court

found that “the defendant acted under strong provocation.” See id. § 40-35-113(2). The trial court

refused to find in mitigation that the defendant committed the offenses under such unusual
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circumstances that it was unlikely that the defendant’s conduct was the result of a sustained intent

to violate the law. The court remarked

We have maybe not convictions, but we have accusations of violent

behavior. In reading the victim impact statement, . . . there’s some

troubling parts about [the defendant’s] failure to deal with anger

issues, and . . . one can envision how this very thing occurs when

someone is not dealing with anger issues. Had this been properly

dealt with years back, we might not have been in a situation like this.

The trial court also denied alternative sentencing, ruling that “after consideration of our Sentencing

Code, based on the defendant’s past history, accusations and convictions; based on the need to

properly deter this type of behavior,” the sentence should be served in the Department of Correction.

In this appeal, the defendant mounts several challenges to the sentence imposed. He

asserts that the trial court erred by utilizing enhancement factor 9 to enhance his conviction for

attempted aggravated assault. He also claims that the trial court erred by considering in its entirety

the statement of reckless endangerment victim Amy Renee Hatfield. Finally, he contends that the

trial court erred by ordering a fully incarcerative sentence.

When a defendant challenges the length and manner of service of a sentence, this

court generally conducts a de novo review of the record with a presumption that the determinations

made by the trial court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, is

conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). The burden of showing that the sentence is improper is upon the defendant. Id. If the review

reflects the trial court properly considered all relevant factors and its findings of fact are adequately

supported by the record, this court must affirm the sentence, “even if we would have preferred a

different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the event the

record fails to demonstrate the required consideration by the trial court, appellate review of the

sentence is purely de novo. Ashby, 823 S.W.2d at 169.

In making its sentencing determination in the present case, the trial court, at the

conclusion of the sentencing hearing, was obliged to determine the propriety of sentencing

alternatives by considering (1) the evidence, if any, received at the guilty plea and sentencing

hearings, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing

alternatives, (4) the nature and characteristics of the criminal conduct involved, (5) evidence and

information offered by the parties on the enhancement and mitigating factors, (6) any statements the

defendant made in his behalf about sentencing, and (7) the potential for rehabilitation or treatment.

T.C.A. § 40-35-210(b);-103(5) (2006); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.

1993).
The 2005 amendments to the Sentencing Act removed language providing that the described offenders were

2

“presumed to be” favorable candidates for alternative sentencing in the absence of evidence to the contrary and replaced

it with language providing that such offenders “should be considered” favorable candidates for alternative sentencing

in the absence of evidence to the contrary. See T.C.A. § 40-35-102(6) (2006). The amendments also made this provision

“advisory” in nature. Id. Because the defendant has failed to demonstrate that, even assuming that he was entitled to

a presumption of favorable candidacy for alternative sentence, the trial court erred by ordering a fully incarcerative

sentence, we need not address whether these amendments changed the burden of proof for entitlement to alternative

sentencing.

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I. Length of Sentence

Although the defendant does not specifically contest the length of his sentence, he

does assert that the trial court erred by using enhancement factor 9 to increase his sentence for

attempted aggravated assault from the minimum sentence of two years to a mid-point sentence of

three years. The State concedes that the trial court erred by applying enhancement factor 9 to the

conviction for attempted aggravated assault, but asserts that the three-year sentence is nevertheless

appropriate. We agree with the State.

Tennessee Code Annotated section 40-35-114 provides that “[i]f appropriate for the

offense and if not already an essential element of the offense,” the trial court may consider any one

of 22 enumerated enhancement factors to increase a defendant’s sentence beyond the statutory

minimum. T.C.A. § 40-35-114 (2006). In this case, the defendant was convicted of the attempted

aggravated assault of Danny Ditty, Jr., “by the use of a deadly weapon, to wit: a gun.” Because the

use of a firearm was an essential element of the offense for which the defendant was convicted, the

trial court erred by using enhancement factor 9 to increase the defendant’s sentence. See id. Because

of this error, the trial court is not entitled to a presumption of correctness with regard to the length

of the sentence. Our review is purely de novo.

Upon our de novo review of the record, the defendant’s record of criminal convictions

is sufficient to warrant an enhancement of one year. The record establishes that the defendant has

two prior convictions for driving under the influence as well as convictions for driving on a

suspended license and disorderly conduct.

II. Denial of Alternative Sentencing

The General Assembly has recognized that because of the limited capacities of state

prisons, “convicted felons committing the most severe offenses, possessing criminal histories

evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at

rehabilitation shall be given first priority regarding sentencing involving incarceration.” T.C.A. §

40-35-102(5) (2006). Accordingly, a defendant who does not fall within these parameters and “who

is an especially mitigated or standard offender convicted of a Class C, D or E felony, should be

considered as a favorable candidate for alternative sentencing options in the absence of evidence to

the contrary.” Id. § 40-35-102(6) (2006). An alternative sentence is any sentence that does not 2

involve total confinement. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Because, in
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this instance, the sentence imposed is ten years or less, the trial court was required to consider

probation as a sentencing option. See T.C.A. § 40-35-303(a), (b). Sentencing issues are to be

determined by the facts and circumstances made known in each case. See State v. Taylor, 744

S.W.2d 919, 922 (Tenn. Crim. App. 1987).

When examining a defendant’s suitability for an alternative sentence, the trial court

should consider whether:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of

the offense or confinement is particularly suited to provide an

effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C). In addition, a defendant’s potential for rehabilitation or lack thereof

should be examined when determining if an alternative sentence is appropriate. Id. § 40-35-103(5).

The defendant is required to establish his “suitability for full probation.” State v.

Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. § 40-35-303(b); State v. Bingham,

910 S.W.2d 448, 455-56 (Tenn. Crim. App. 1995), overruled in part on other grounds by State v.

Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). A defendant seeking full probation bears the burden of

showing that probation will “subserve the ends of justice and the best interest of both the public and

the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v.

State, 297 S.W.2d 78, 81 (1956)), overruled on other grounds by Hooper, 29 S.W.3d at 9-10.

Among the factors applicable to probation consideration are the circumstances of the offense; the

defendant’s criminal record, social history, and present condition; the deterrent effect upon the

defendant; and the best interests of the defendant and the public. State v. Grear, 568 S.W.2d 285,

286 (Tenn. 1978).

In this case, the trial court imposed a fully incarcerative sentence based upon its

finding that Tennessee Code Annotated sections 40-35-103(1)(A) and (B) were applicable. The

defendant contends that the trial court erred by utilizing the need for deterrence to support the denial

of alternative sentencing because there was no proof in the record of the need for deterrence. We

agree. Our supreme court has repeatedly held that “the record must contain some proof of the need

for deterrence before a defendant, who is otherwise eligible for probation or other alternative

sentence, may be incarcerated.” Hooper, 29 S.W.3d at 9. Although the statute “does not require

proof that incarceration ‘will’ or ‘should’ deter others from committing similar crimes,” the record

must demonstrate that “confinement [is] ‘particularly suited’ to provide a deterrent effect.” Id. After

concluding that “trial courts should be given considerable latitude in determining whether a need for
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deterrence exists and whether incarceration appropriately addresses that need,” the court ruled that

a reviewing court

will presume that a trial court’s decision to incarcerate a defendant

based on a need for deterrence is correct so long as any reasonable

person looking at the entire record could conclude that (1) a need to

deter similar crimes is present in the particular community,

jurisdiction, or in the state as a whole, and (2) incarceration of the

defendant may rationally serve as a deterrent to others similarly

situated and likely to commit similar crimes.

Id. at 10. Among the factors that a trial court should consider when determining whether

incarceration is “particularly suited” to the need for deterrence are:

1) Whether other incidents of the charged offense are increasingly

present in the community, jurisdiction, or in the state as a whole.

 . . . .

2 ) Whether the defendant’s crime was the result of intentional,

knowing, or reckless conduct or was otherwise motivated by a desire

to profit or gain from the criminal behavior.

. . . .

3) Whether the defendant’s crime and conviction have received

substantial publicity beyond that normally expected in the typical

case.

. . . .

4) Whether the defendant was a member of a criminal enterprise, or

substantially encouraged or assisted others in achieving the criminal

objective.

. . . .

5) Whether the defendant has previously engaged in criminal conduct

of the same type as the offense in question, irrespective of whether

such conduct resulted in previous arrests or convictions.

Id. at 10-12.

In this case, the trial court failed to consider any of the relevant factors, and the record

does not contain any evidence that bespeaks either “a need to deter similar crimes” or a rational

relationship between the incarceration of this defendant and the deterrence of similarly situated

individuals likely to commit similar crimes. Thus, the trial court erred by denying alternative

sentencing on the basis of the need for deterrence.

The defendant also contends that the trial court erred by relying on inadmissible

portions of Ms. Hatfield’s victim impact statement to support the denial of alternative sentencing.
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Again, we must agree with the defendant. Tennessee Code Annotated section 40-38-203 defines a

victim impact statement as

a statement providing information about the financial, emotional, and

physical effects of the crime on the victim and the victim’s family,

and specific information about the victim, the circumstances

surrounding the crime, and the manner in which it was perpetrated.

T.C.A. § 40-38-203(2) (2006). In this case, the statement provided by Ms. Hatfield included not

only the information deemed relevant by Code section 40-38-203 but also unsubstantiated allegations

of the defendant’s uncharged criminal activity. The record establishes that although the trial court

stated that it did not find the statement “overly persuasive,” it did rely upon the unsubstantiated

allegations included in the statement to conclude that the defendant had “anger issues.” The court

then relied on the defendant’s “failure to deal with anger issues” and the “defendant’s past history,

accusations and convictions,” in its denial of alternative sentencing. The trial court’s reliance on the

unsubstantiated allegations contained in Ms. Hatfield’s statement to deny alternative sentencing was

error.

Because the trial court erred by relying on erroneous factors in its denial of alternative

sentencing, our review of the manner of service of the sentence is also de novo, with no presumption

of correctness. See Ashby, 823 S.W.2d at 169. Nevertheless, upon our de novo review of the

sentencing decision of the trial court, we conclude that the defendant is not entitled to alternative

sentencing. The record established that the defendant has a long history of criminal conduct and that

confinement is necessary to avoid depreciating the seriousness of the offense. See T.C.A. § 40-35-

103(1) (A)-(B).

As to the defendant’s history of criminal conduct, at the time of the sentencing

hearing, the 31-year-old defendant had four prior convictions spanning a period of eight years. In

addition, the defendant admitted daily marijuana use.

The record also establishes the serious nature of the crimes in this case. Although the

trial transcript was not included in the appellate record, the version of the offenses included in the

presentence report, as well as the statements provided by Ms. Hatfield and the defendant, establish

that the defendant, armed with a handgun, approached the victims as they sat in their car in a church

parking lot. The defendant opened the car door and began firing shots in an attempt to kill victim

Danny Ditty, Jr. When Ms. Hatfield fled, the defendant followed in his car, all the while firing his

gun at the victims’ vehicle. The defendant admitted that he was trying his “very best to kill the boy.”

Anything less than a fully incarcerative sentence would, in our view, depreciate the very serious

nature of the defendant’s conduct. See State v. Thomas C. Russell, No. E2006-00827-CCA-R3-CD,

slip op. at 6 (Tenn. Crim. App., Knoxville, May 24, 2007) (“[A] sentencing court may consider a

defendant’s enjoyment of leniency in the selection of a particular conviction offense in awarding or

rejecting alternative sentencing options.”), perm. app. denied (Tenn. 2007) (citing State v. Samuel
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D. Braden, No. 01C01-9610-CC-00457, slip op. at 15 (Tenn. Crim. App., Nashville, Feb. 18, 1998);

State v. Steven A. Bush, No. 01C01-9605-CC-00220, slip op. at 9 (Tenn. Crim. App., Nashville, June

26, 1997); State v. Frederick Dona Black, No. 03C01-9404-CR-00139, slip op. at 3-4 (Tenn. Crim.

App., Knoxville, Apr. 6, 1995)).

Regarding the defendant’s potential for rehabilitation, his lack of a high school

diploma or any verifiable employment history, lengthy criminal history, and complete lack of

remorse demonstrate a poor potential for rehabilitation. Given the poor potential for rehabilitation

and the satisfaction of the factors supporting an incarcerative sentence under Code section 40-35-

103(1), the trial court did not err by denying an alternative sentence.

CONCLUSION

Because the trial court committed errors of law when setting the length of sentence

and when denying alternative sentencing, our review of both decisions is purely de novo with no

presumption of correctness. Nevertheless, on de novo review of the record, we conclude that the

defendant’s previous criminal convictionssupport the three-year sentence imposed bythe trial court.

In addition, the record establishes that a fully incarcerative sentence is appropriate based upon the

considerations in Tennessee Code Annotated section 40-35-103. Accordingly, the judgment of the

trial court is affirmed. The case must be remanded, however, for the entry of a corrected judgment

on Count 1. The judgment form must be amended to reflect that the defendant was convicted of

attempted aggravated assault rather than aggravated assault.

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE