IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 17, 2012 Session

STATE OF TENNESSEE v. FREDRICK JOHN DEEN CLARK

Direct Appeal from the Circuit Court for Grundy County

No. 4674 Thomas W. Graham, Judge

No. M2011-02503-CCA-R3-CD - Filed March 6, 2013

The appellant, Fredrick John Deen Clark, pled guilty in the Grundy County Circuit Court to

vehicular assault, a Class D felony. Pursuant to the plea agreement, the appellant received

a six-year sentence with the manner of service to be determined by the trial court. After a

sentencing hearing, the trial court ordered that the appellant serve his sentence in

confinement. On appeal, the appellant contends that the trial court erred by denying his

request for alternative sentencing. Based upon the oral arguments, the record, and the

parties’ briefs, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which JOSEPH M. TIPTON,

P.J., and D. KELLY THOMAS, JR., J., joined.

Paul D. Cross, Monteagle, Tennessee, for the appellant, Fredrick John Deen Clark.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel Harmon, Assistant Attorney

General; James Michael Taylor, District Attorney General; and David Shinn and David O.

McGovern, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In November 2010, the Grundy County Grand Jury indicted the appellant for

attempted second degree murder, two counts of aggravated assault, driving under the

influence, violation of the implied consent law, vehicular assault, and reckless endangerment.

On July 22, 2011, he pled guilty to vehicular assault, a Class D felony. At the appellant’s

guilty plea hearing, the State and the defense advised the court of the following facts: On
May 5, 2010, Timothy Smartt and the appellant went fishing in the Grundy Lakes area.

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Afterward, they drove in the appellant’s truck to the Tracy City area. They got into an

argument near Flury’s Store, so Smartt jumped out of the truck and started walking across

the parking lot. The appellant hit Smartt once or twice with his truck and left the scene. The

police contacted the appellant, and he returned voluntarily. He appeared to be under the

influence of an intoxicant. The victim had a head injury and several broken bones and was

airlifted to Erlanger Medical Center.

Pursuant to the plea agreement, the appellant agreed to be sentenced as a Range II,

multiple offender with the manner of service to be determined by the trial court. At the

sentencing hearing, the victim testified for the State that after the appellant’s Ford F-150

truck hit him, the appellant “backed up and run over [him] again.” He said that as a result

of the incident, his hip was damaged, requiring three surgeries; his shoulder was broken; and

his skull was “left . . . hanging with all kind of staples and stitches in it.” The victim was

responsible for the care of his two sisters and had to have hip replacement surgery as a result

of his being hit by the appellant’s truck. He said that he and the appellant used to be friends

but that the appellant should serve his time in confinement. The trial court asked if the

appellant hit him with the truck intentionally, and he said yes. He said the appellant hit him

once from behind, causing him to slide across the parking lot and receive “bad road rash.”

He stated that while he was on the ground, the appellant hit him again, splitting the side of

his head “wide open.” The appellant backed up and was going to hit the victim a third time,

but the victim moved out of the way.

On cross-examination, the victim testified that he had “[o]ne or two” felony

convictions, including a conviction for aggravated assault. He maintained that the appellant

hit him with the truck twice and that the appellant “tried to run over [him] again.” He

acknowledged that when he got out of the appellant’s truck, he had the appellant’s

medication bottle in his pocket. He said that the appellant asked him to “hold” the bottle

because the appellant kept losing it. The victim and the appellant began arguing, and the

victim tried to give the bottle back to the appellant. He also tried to get out of the truck, but

the appellant would not stop long enough for him to get out.

Teddy Trail testified for the appellant that he was a retired police officer and

witnessed the vehicular assault. The appellant’s truck hit the victim one time. On crossexamination, Trail testified that after the appellant hit the victim, the appellant drove away

from the scene. The victim was seriously injured, and Trail telephoned the police. The State

asked if the appellant had hit the victim intentionally, and Trail answered, “I can’t say that,

Throughout the record, the victim’s last name appears as “Smartt” or “Smart.” We have used his 1

last name as it appears in the appellant’s indictment.

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sir.”

Mike Rigsby testified that he was the appellant’s pastor and had known the appellant

about ten years. He said that the appellant was “making progress” and that the appellant had

recently married and had a baby. The appellant attended church regularly and could function

well in society if granted probation.

On cross-examination, the State asked Rigsby if he was aware that the appellant

continued “to have issues with marijuana usage[?]” Rigsby stated, “Well, I wouldn’t doubt

it.” He said that the appellant previously had a problem with alcohol but that he had seen the

appellant “mature.”

The State introduced the appellant’s presentence report into evidence. In the report,

the then thirty-three-year-old appellant stated that he graduated from high school and that his

mental health was “poor.” He also stated that he had never used alcohol but that he began

using marijuana when he was seventeen years old, used it daily, and successfully completed

a treatment program in 1997. The appellant claimed in the report that he stopped using

marijuana “less than a year ago” because he got married and had a baby. However,

according to the presentence report, which was completed on September 21, 2011, the

appellant tested positive for marijuana and opiates on September 8, 2011. In the report, the

appellant described his physical health as “poor” and said that he became disabled in 2011

due to hearing loss. According to the report, the appellant worked at Silver Bait, LLC for

a few months in 2007 but had to stop working when he became disabled. He reported no

other employment. The report shows that the appellant has a 2006 misdemeanor conviction

for marijuana possession. In 2007, a probation violation warrant was issued for his failure

to complete public service work and pay anything toward his court costs and fines. At the

time the presentence report was completed, the warrant was still outstanding.

The appellant introduced the victim’s medical records into evidence. The records

show that the victim was diagnosed with “[b]lunt” abdominal injury, a humeral head fracture,

a scalp laceration, and a fractured shoulder. According to the records, the victim’s head

injury was “minor.” The records do not show that the victim’s hip was injured.

The trial court found that confinement was not necessary to protect society from a

defendant who has a long history of criminal conduct. However, the court found that

confinement was necessary to avoid depreciating the seriousness of the offense and to

provide an effective deterrent to others likely to commit similar offenses because “[t]his was

a very serious offense. . . . When you hit a human body, bones and flesh, with steel, with a

multi-hundred-horsepower vehicle, that is a serious offense.” The trial court noted that the

appellant would not submit to alcohol or drug testing and that he “wasn’t so much worried

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about the condition of the victim as he was about himself.” Finally, the trial court concluded

that measures less restrictive than confinement had been frequently or recently applied

unsuccessfully to the appellant because the appellant never completed the probation he

received for his 2006 misdemeanor conviction. The trial court stated that the appellant hit

the victim intentionally and ordered that he serve his sentence in confinement.

II. Analysis

The appellant claims that the trial court erred by denying his request for alternative

sentencing. The State argues that the trial court properly ordered the appellant to serve his

sentence in confinement because the court was “very disturbed” by the facts of this case and

because the appellant was on probation when he committed the crime. We conclude that the

appellant is not entitled to relief.

In sentencing a defendant, the trial court shall consider the following factors: (1) the

evidence, if any, received at the trial and the sentencing hearing; (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 enhancement and mitigating factors; (6) any statistical information provided

by the administrative office of the courts as to sentencing practices for similar offenses in

Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for

rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State v.

Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Previously, appellate review of the length, range,

or manner of service of a sentence was de novo with a presumption of correctness. See

Tenn. Code Ann. § 40-35-401(d). However, our supreme court recently announced that

“sentences imposed by the trial court within the appropriate statutory range are to be

reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’”

State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Even more recently, the court specifically

held that the abuse of discretion standard, with a presumption of reasonableness, applies to

a review of a denial of alternative sentencing. State v. Christine Caudle, ___ S.W.3d ___,

No. M2010-01172-SC-R11-CD, 2012 Tenn. LEXIS 824, *16 (Nashville, Nov. 27, 2012).

The burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.

Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

An appellant is eligible for alternative sentencing if the sentence actually imposed is

ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentence meets this

requirement. Moreover, an appellant who is an especially mitigated or standard offender

convicted of a Class C, D, or E felony should be considered a favorable candidate for

alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).

Tennessee Code Annotated section 40-35-103(1) sets forth the following sentencing

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considerations which are utilized in determining the appropriateness of alternative

sentencing:

(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.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, “[t]he

potential or lack of potential for the rehabilitation or treatment of the defendant should be

considered in determining the sentence alternative or length of a term to be imposed.” Tenn.

Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct and

“evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative

sentencing. Tenn. Code Ann. § 40-35-102(5).

The appellant contends that the trial court erred by denying his request for full

probation or split confinement. In particular, he claims that the trial court “was apparently

operating under the misperception that intentionally was an element of [vehicular assault].”

The appellant is referring to an exchange with defense counsel in which the trial court stated,

“It’s an intentional disregard for the safety of others which is as close to intent to hit as you

can get without, I guess, coming forward and saying it. So, anyway, I just -- I think it’s a

tragedy and, you know, all of it is partially affected by, I’m sure, folks’ use of either

marijuana and/or alcohol or both.”

Initially, we note that the appellant was sentenced as a Range II, multiple offender.

Therefore, he is not considered to be a favorable candidate for alternative sentencing.

Moreover, the trial court determined that confinement was necessary to avoid depreciating

the seriousness of the offense or particularly suited to provide an effective deterrence to

others likely to commit similar offenses. In denying full probation to avoid depreciating the

seriousness of the offense, the criminal actshould be especially violent, horrifying,shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated degree. Zeolia, 928

S.W.2d at 462. In this case, the trial court concluded that the appellant’s hitting the victim

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with the truck, resulting in serious injuries; leaving the scene; and failing to show any

concern for the victim satisfied that factor.

The trial court also noted that the appellant had been smoking marijuana since he was

seventeen years old and stated that his “condition” contributed to the crime in this case.

Undoubtedly, the appellant still has an addiction to illegal drugs. Although he completed a

drug treatment program once, he continues to use marijuana. In addition, he claimed in the

presentence report that he stopped using marijuana, but he tested positive for marijuana and

opiates. Therefore, the appellant shows poor potential for rehabilitation and treatment. See

State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999) (providing that “[l]ack of

candor and credibility are indications of a defendant’s potential for rehabilitation”).

Applying the presumption of reasonableness, we conclude that the appellant has not shown

that the trial court abused its discretion by ordering him to serve his sentence in confinement.

III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the

judgment of the trial court.

_________________________________

NORMA McGEE OGLE, JUDGE

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