IN THE TENNESSEE COURT OF CRIMINAL APPEALS

AT KNOXVILLE

Assigned on Briefs January 21, 2016 

STATE OF TENNESSEE v. STEVEAN WILSON

Appeal from the Criminal Court for Knox County

No. 103214 Scott Green, Judge

No. M2015-01446-CCA-R3-CD – Filed April 22, 2016

CAMILLE R. MCMULLEN, J., dissenting.

I dissent from the majority conclusion affirming the trial court’s imposition of 

confinement in this case. The trial court did not engage in any findings of fact to support 

its determination of confinement as required by law. See Tenn. Code Ann. § 40-35-

103(1)(A)-(C) (2014) (whether confinement is necessary to protect society by restraining 

a defendant who has a long history of criminal conduct; whether 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 measures less restrictive than confinement have frequently or recently been 

applied unsuccessfully to the defendant); see also Shannon Ann Maness and Daryl 

Wayne Maness, No. W2012-02655-CCA-R3-CD, 2014 WL 350429, at *16-17 (Tenn. 

Crim. App. Jan. 23, 2014) (noting that the trial is still required to place on the record its 

reasons for imposing the specific sentence and remanding for new sentencing hearing 

because the record did not support the trial court’s finding of confinement based on 

deterrence); State v. Robert Joseph Harr, No. W2011-02735-CCA-R3CD, 2013 WL 

5422801, at *10 (Tenn. Crim. App. Sept. 27, 2013) (Tipton, P.J., concurring and 

dissenting) (noting that he did not believe “our supreme court intended in Bise or Caudle

to do away, in wholesale fashion, with Tennessee jurisprudence developed over the last 

thirty years upon which the Sentencing Act is based and in which the Act’s provisions are 

interpreted”).

 The Defendant does not have a long history of criminal convictions and, although 

he had been previously placed on judicial diversion, this is not equivalent to measures 

less restrictive than confinement that have been frequently or recently applied 

unsuccessfully. There is nothing in the record that shows his diversion, which was 

completed in 2013, was violated. At most, the trial court appears to have imposed 

confinement based solely on deterrence. When determining whether to impose 

confinement based on deterrence, our supreme court has provided a “non-exhaustive” list 
of factors for trial courts to consider, including: (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, and (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. State v. Hooper, 29 

S.W.3d 1, 10-12 (Tenn. 2000). Moreover, “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.” Id. at 9. Finally, “common sense tells us that 

we may have less ability to deter crimes which are the result of provocation, sudden and 

extreme passion[.]” Id. Here, the trial court failed to engage in any meaningful analysis 

of the Hooper factors. There is nothing in the record, other than the trial court’s fleeting 

reference to the video, showing that there are similar crimes in Knoxville or Tennessee as 

a whole or that the Defendant’s incarceration would somehow deter others similarly 

situated not to commit an aggravated assault. Although the State introduced photos of 

the Defendant displaying gang signs and a shotgun, there is also nothing in the record 

showing that he was in fact a gang member, that he participated in past or present 

criminal gang activity, or that the instant offense was for the purpose of promoting 

criminal gang activity. 

The trial court’s inadequate findings of fact and failure to comply with the law are 

apparent on the record. Ordinarily, I would recommend remanding this case for a new 

sentencing hearing. However, the trial court denied the Defendant’s request for a bond 

pending appeal, and the Defendant has been in custody since April 10, 2015. 

Consequently, I would order the Defendant to be released and the remainder of his sixyear sentence to be served on probation. 

__________________________________

CAMILLE R. McMULLEN, JUDGE