# FILED

June 25, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1 998 SE SSION

STATE OF TENNESSEE, §

APPELLANT § VS. C.C.A. No. 01C01-9707-CR-00295 § DAVIDSON COUNTY HONORABLE SET H NORMAN DAVID RAY McCORMICK §

APPELLEE (SENTENCING)

FOR THE APPE

LLANT FOR THE APPELLEE John Knox Walkup Jeffrey A. Devasher Attorney General and Report er Assistant Publi c Defender 425 Fifth A venue, N orth (On Ap peal) Nashville, TN 37243 Karen M. Yacuzzo Stephen G. Young Assistant Att

orney General Assistant Publi c Defender 425 Fifth A venue, N orth (At Hearing) Nashville, TN 378243 1202 Stahlman Bldg. Nashville, TN 37201 Jim Milam Assistant Dist

rict Attor

ney General Washington Square, Suite 500 222 Sec ond Av enue N orth Nashville, TN 37201-1649

OPINION FILED: _______________________

REVERSED AND REMANDED L. T. LAFFERTY,

SPECIAL JUDGE2 OPINION The defendant, David McCo rmick, pled guilty t o aggravated assaul t. The trial court,

after a sentencin

g hearing, sentenc

ed the defendant to confinement in the c

ommunity corrections for six years. As conditions of this placement in com

munity corrections,

the trial court re

quired the defendant to pay for

electronic monitor

ing; ordered house ar

rest except for employment; and ordered the defendant to pay fifty percent of his net income for restituti on and costs. In this appeal of rig

ht, the State conte

nds that the trial cou

rt erred by sentencing the defendant to the community corrections program for a crime of violence. The

State, also, con

tends the defendant i s not entitled to probation and, thu s, the defendant sho uld serve his sente nce in confinement. After a review

of the record in this

cause, briefs of

the parties, and applicable law, the trial court’s ju dgment is reversed a

nd remanded to the trial court for re

-sentencing. Background In May, 1995, the D avidson County grand jur y accused the defen

dant of criminal attem

pt, to-wit: murde

r first degree invo

lving the shooting of one Ricky Stanfill i

n December, 1994.

On March 6, 1997,

the defendant entered a plea of guilty to aggravated assault, agreeing to a Range I six year sentence, and req

uested a hearing for

alternative sente

ncing. A transcr

ipt of the guilty plea entr

y was not included in th

e record. The t

rial court held a bifurcated hearin

g on April 9 & 16, 1997,

to determine the me

rits of the defendant’s applica

tion for alternativ

e sentencing.3 Sentencing Hearing Although present at t

he sentencing heari

ng, neither the vict

im nor defendant testifie

d. As part of its evide

nce, the State of

fered the testimony

of Mr. Jim Dallas Crouch. M

r. Crouch, a dru

mmer in a band in a ni

ghtclub in Davidson County, had stepped outside for a cigarette during a

break. The victim, Stanfill, and the defendant were stan ding outside in the parking lot. Prior to Crouch’s going outside, he had heard some words being exchanged between the victim and defendant and knew there was a “problem.” Crouch observed the defenda

nt shoot the victim. C

rouch, a former

Navy corpsman, applied pressure to a

wound in the victim’s

abdomen, and took him

inside the bar to wait for

an ambulance. Cr

ouch never saw a gun

or weapon in the victim’s possession. The State also submitted a letter from the victim’s doctors concerning hi s wound, two certi fied records of co

nvictions of the defendant, and a pr

e-sentence repor

t. A summary of the de

fendant’s evidence

for alternative se

ntencing established that the defendant is employed as an operator in a steel processing plant. H

is employer found the defendant reliable and dependable and state

d that the defendant w

ould likely be promoted . The employer has prior e

xperience with per

sons on probation and agr eed to work with the court

and the defendant if

he were placed on

community corrections or prob ation. The defen dant’s mother testif

ied her son assists her in paying her ren

t and utilities, see s to her medical pro blems and believes he has stra

ightened out his drinking. The mother admitt

ed her son4

had a history of drinking and assaults and being on probation on several occasions, but was un aware that any periods of probation were revo ked. Also, she was unaware of her son using marijuana. The defendant’s sister testified in support of

her brother. She

has talked to the def

endant about the offense; he is very sorry about the shooting and has turned his drin

king around. She confirmed that the defendant as sisted his mother in her debts. Apparently while on bail for this offense, the defendant had been arrested and convicted for the

possession of marijua

na, but the sister a

nd defendant did not tell their mothe

r due to her bad heal

th. The sister bel

ieves the defendant should be pla

ced on community corr

ections or probation. Based on this evidence

the trial court plac

ed the defendant on community correcti

ons supervision. Thus

leading to this appeal

. Community Cor

rections/Probat

ion Alternative Sentences First, we will a

ddress the placeme

nt of the defendant on

community corrections in lieu of probation. Since the defendant enter

ed a plea of guilty to aggravated assault, a Class C felony, the defendant is presumed to be a favorable candidate for probation or an alternative sentence, in the absence of evidence to the co ntrary. Tenn. Code Ann. § 40-35-102 (6). Th

e defendant has the b

urden of establishing t

hat he is a favorable candidate for alternative relief. Ten n. Code Ann. § 40-35-3 03(b). Even when the Sta

te complains of the se

ntence of a defenda

nt, we must conduct a de novo review with a presumption of correct ness. Tenn. Code Ann. § 40-35-401(d) . Therefore, the burden of showing the sentence is improper is upon the S tate. The presum ption that determina

tions made by5

the trial court ar

e correct is condit

ioned upon the affirm

ative showing in the record that the tri

al court considered

the sentencing princ

iples and all relevant facts and circ umstances. State v. Ashby, 823 S.W.2d 166 (T enn. 1991); State v. Smith, 898 S.W.2d 742 (Tenn. Crim . App. 1994). If appellate revi

ew reflects that

the trial court prop

erly considered all relevant facts an

d its finding of facts

are adequately supp

orted by the record, this Court

must affirm the se

ntence, “even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991) . In arriving at th e proper determina

tion of an appropriat

e sentence, the trial court must consider (1) the evidence, if any, received at the plea of guilty; (2

) the pre-sentenc

e report; (3) the p

rinciples of sentencing and argum

ents as to sentencing a

lternatives; (4) th

e nature and characteristics

of the criminal con

duct involved; (5) evi

dence and information offer

ed by the parties on en

hancement and mitiga

ting factors; (6) any statements t

he defendant wishe s to make in the defe ndant’s behalf about the sentenci ng; and (7) the pote ntial for rehabilit ation or treatment. Tenn. Code Ann. § 40-35-210(a), (b ) (1997); Tenn. C

ode Ann. § 40-35- 103(5) (1990); State v. Holland, 860 S.W.2d 53 (Tenn. Crim. App. 1993). In it’s ruling the Cour

t stated: I’m going to put Mr. McCormick on work release--I mean, on six years p

robation. I’m going

to require him to pay for electronic monitor

ing. He will not be

allowed out of his house for any purpose, whatso

ever, other than t

o go to work. He will pay fifty percent of the net i ncome that he derives from his em

ployment towards any

restitution and any co st and fines that have e volved out of thi s case. He will pay for it.6 He’ll be placed on Community Correcti ons for a period of six years. If he steps out of line one inch, I will double that sentence. That’ s the ruling of the Cour t. He is to have elect

ronic monitoring befo

re the sun sets today, and he not to go out of that hou se--except to go to wo rk. The State contends , since the trial c ourt did not make any f

indings regarding relevant sentencing considerations, this Court should conduct a de

novo review without the

presumption of corr

ectness. Natura

lly, the defendant contends th

e trial court was

correct in its judgm

ent. We believe the State is correct and will conduct a de novo review without the presumption. The State contends , and the defendant concedes, that the

defendant, having been convicted of aggravated assa ult in this case, is or

dinarily ineligible for sente

ncing under the Commu

nity Corrections Ac

t. Tenn. Code Ann. § 40-36-10 6(a). Under sec tion (a), those conv

icted of violent felony offenses and those convicted of felony offenses involving crimes against the person ar

e normally statutori

ly excluded from com

munity corrections senten ces. State v. Braden, 867 S.W.2d 750 (T enn. Crim. App. 1993); State v. Birge, 792 S.W.2d 723 (Tenn. Crim. App. 1990). Since violent offenders a

re not statutorily el

igible for community corrections, section (c) of Te

nn. Code Ann. § 40- 36-106, however, provides as follows: Felony offenders not otherwise eligible under subsection (a), an

d who would be usually c onsidered unfit for probation due to histori

es of chronic alcoho

l, drug abuse, or mental health proble

ms, but whose speci

al needs are trea

table and could be served be st in the community ra ther that in a correctional instit

ution, may be conside

red eligible for punishment in the comm unity under the provisio

ns of this chapter.7 The State contends

the trial court fa

iled to find any specia

l needs applicable to the def

endant in its ruling and

thus is ineligible for

community corrections. Of

course, the defe

ndant maintains the tr

ial court did find special needs based on the defendant’s pa st abuse of alcohol. A trial court, in its determination f

or placing a defenda

nt in the community cor

rections program under sect

ion (c), must consid

er (1) the offende

r has a history of chronic alcohol, drug abuse, or mental health problems; (2) these factors were reasonably related to and contributed to the offender’s criminal conduct; (3) the iden

tifiable special ne

ed (or needs) are

treatable; and, (

4) the treatment of th

e special need could

be served best in the

community rather than in a correct ional instituti on. State v. Boston, 938 S.W.2d 435 (Tenn. Crim. App. 1996). Since this Court is conducting a de novo review of the defendant’s sentence, we w

ill be guided by the sam

e criteria as the

trial court. As t

o factor (1) the defendant through his mother and sister offer evidence of a history of alcohol abuse. Between Nov ember, 1983, and Ja

nuary, 1991, the defendant has three c onvictions for dr iving under the in fluence of alcohol. Since this present offense occurred at a bar, it can be reasonably inferred that alcohol was invo

lved. Also, the de

fendant has attende

d AA meetings, which have evidently been unsuccessful. Although the pre-sentence report indicates that the defendant quit us ing marijuana in 19 82, he has two convictions for drug po ssession since 1983. I t is obvious that at the sentencing hearing, the trial court was concerned about the defendant’s history of alcohol abuse and possibly, infer entially, that is the

reason why8

the trial court placed the defendant on community corrections. However, the defendant failed to establish by a preponderance of the evidence just as to how this special ne

ed, abuse of alcoho

l, could be effec

tively treated in the community. Based on the defendant’s history of criminal behavior as outlined in the pre-sentence report, the defendant’s history of criminal convictions and behavio

r, to-wit: four a

ssaults and one weap

on offense, the defendant has faile

d to establish his place

ment in the community c orrections program was prope

r. The trial cou

rt was in error f

or this placement. Second, now we w

ill consider the quest

ion of probation. Th

e State argues that the defe

ndant, based on his pas

t criminal convictio

ns and behavior, is not entitled to straight probation, but at least one year confinement and then , if applicable, probation. The def

endant contends the State did not present

evidence that rebut

s the statutory presum

ption that the defendant is entit led to probation. In State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994), this Court examined t

he standards governin

g a trial court’s de

termination of whether continuous c

onfinement is neces sary: Our Sentencing Act reflects the individualized nature of alterna

tive sentencing. W

hen imposing a sentenc

e of total confinement,

the trial court shoul

d base its decision on th

e considerations listed in Tenn. Code Ann. § 40-35-103(1):

(A) Confinement i s necessary to prote ct society by restraining a defendant who has a long history of criminal conduct; (B) Confinement is necessary to avoid depreciating the se

riousness of the offe

nse or confinement i s particularly9 suited to provide an ef

fective deterre

nce to others likely t

o commit similar off

enses; or (C) Measures les s restrictive than c onfinement have frequently or r

ecently been applie

d unsuccessfully to the defendant. From our analysis of

the record the def

endant would not be ent

itled to straight probation. However, the trial court, after observing the witnesses and the defendant and

after reviewing

the reports, in its determination to grant community co rrections saw or felt so mething at this hea ring. Therefore, thi s Court reverses a nd remands this case

to the trial court to determine an appro

priate sentence,

including split confine

ment and any other reasonable con dition of probati on, if any.

_________________________ L. T. Laff erty, Special Judg

e

CONCUR:

_________________________ Gary R. Wade,

Presiding Judge

_________________________ Thomas T. Woodall, Judge