### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M ay 21, 2003

STATE OF TENN ESSEE v. CARLOS CA UDILL

Direct Appeal from the Criminal Court for Claiborne County

No. 11771 E. Shayne Sexton, Judge

No. E2002-02339-CCA-R3-CD August 13, 2003

Defend ant, Carlos Caudill, was indicted by the Claiborne Count y G rand Jury for sec ond degree murder. On Dece

mber 18, 2 001, Def

endant e ntered a guilty plea as a Range I I mult iple offe nder to voluntary manslaug

hter, wit h the length and manner of service of his sentence to be determined by the trial court. Following a sentencing he aring, the trial court sentenced De fendan t to nine y ears impriso nment. Defend ant appe als the le ngth an d manner

of servi ce of his sentenc e. We fin d n o error and affirm the judgment of the tr ial court.

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

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined.

Timothy P. Webb, Jack sboro, Te

nnessee , for the

appella nt, CarlosCaudill.

Paul G. Summers , Attorne y General and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y General ; William Paul Phillips, District Attorney General; Jared Effler, Assistant District A

ttorney Genera l, for the appellee, the State of Tennessee.

OPINION

At appro ximately

10:00 p.m., on Febr

uary 17, 2001, D efenda

nt shot and

killed the victim, William Frick, inside Defendant's home. Defendant a nd the victim were neighbors, and the victim “appeared to have entered [Defe ndant's] residence for reasons unknown.” D efendant then kicked th e victim in

the head and plac ed a cro wbar be side him on the floor . Defen dant and h is girlfriend fled the home on foot and went to a re lative’s home a half a mile away . Defendant used the r elative’ s telepho ne to call friendsin Kentuc ky a nd asked them to ass ist him in removing the victim’s body from his home. Defendant's friends denied his re quest, and Defendant then called 911. Mr. Frick died f rom a gunshot wound to the chest.-2-

This summary of facts is taken from the presentence report. At the g uilty plea hearing , no witnesses testified to the facts of the homicide. The State and Defe ndant stipulated that the prosecution would prove bey ond a reasonable doubt, through its witnesses, that Defenda nt committed second degree murder. At the submission hear ing, Defendant told the trial court that the prosecutor’s statement was, in fact, correct.

According to Defendant’s ver sion of the facts in the presentence report, Mr. F rick “broke into [his] home ,” and De

fendant asked him

to leave . The vic tim was ca rry ing a cr owbar in his hand. The

victim did n ot leave

Defend ant’s hom

e, and De fendant “felt thr eatene d” and sh ot him “one time with a .38 [caliber

] revolve r.” Afte r Defendant shot t

he victim, he “then

kicked him and searched him for another wea pon.” Defendant “then walked to a re lative’s home and called911 to report what [he] had done.” Defendant told investigators that he shot the victim in selfdefense, “protecting [him]self and [his] family.” D efendant further stated in the presentenc e report: Howeve

r, during my time in jail, I ha

ve real ized two thi ngs. One , I sh ould have never had a gun for

any rea son, and had I not had one, I may have r

eacted in a different way , and two, if I had to defend my self and my home, it shouldn’t have re sulted in th

e death o f Bill Fr

ick. I see no re ason why

this even t would ever repeat itself, nor any reason I would have to violate pr obation or parole. In the future, my

home will be protected by a security sy stem rather than an illegal weapon and a violent temper.

On April 2, 2002, the trial court conducted a sentencing hearing. Timothy

Adams, a probation and parole officer for the state of Kentucky, te stified that he supervised Defendant while he was on probation for prior convictions. Adams testified that Defe ndant “appeared to be polite an d cooper

ative.” He testif

ied, howe ver, tha t Defend ant absc onded fr om probat

ion in Octob er of 19 98 and furth er vio lated the co ndit ions of his proba tion by failin g to rep ort a ch ange in residence, failing to report as directed, and failing to pay court ordered fees.

Defendant testified at the sentencing he aring that on the night of the offense, he woke up and found the victim standing in his living room. Defendant testified that the victim “was not welcome in [his] home. ” Defe

ndant tes tified tha

t he “did j ust like an

yone else wo

uld’ve do ne in the whole world [and ] defende d [his] home.” Defend ant also te stified th at he fa iled to co mply with the conditions of his probation for the prior felony convictions in Kentucky.

At the conclusion of the sentencing hearing , the trial court applied three enhancement factors: (a) that Defendant has a pr evious history of unwillingness to comply with the conditions of a sentence involving release in the c ommunity, Tenn. Code Ann. § 40-35-114(9) (Supp. 2002); (b) that Defendant employ ed a firearm during the commission of this offense, Te nn. Code Ann. § 40-35-114(10) (Supp. 2002); and (c) that the felony was committed while Defendant was on probation for a prior felony conviction, Tenn. Code Ann. § 40-35-114(14)(C) (Supp. 2002).-3-

The trial court declined to apply mitigating factors (2) and (3). See Tenn. Code Ann. § 40-35-113 (1997). The trial court found that Defenda nt acted “under a state of passion not suff icient to s uppor

t self -def ense , but s uffi cien

t to ma ke a p erso n act

irra tiona lly . . . . [ However], that is reflected in the plea so I 'm not going to give that any weight. I think that the weig ht, the
appropr iate wei ght has a

lready been g iven by

this Court a

nd by the part ies in thei r recommendation on the charge.”The trial court found evidence to support mitigating fa ctor (11), that the defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustaine d intent to violate the law motivated the criminal conduct. See Tenn. Code Ann. § 40-35-113 (1997). Although not a statutory mitigating factor, the trial court also considered Defendant’s g enuine remorse for the offense. See State v. Williamson , 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995).

The range of punishment for voluntary manslaughter, a Class C felony , is six to ten years for a Ra nge II mul ti pl e of fen der . Te nn. Co de A nn. §§ 3 9-1 3-2 11( b), 40- 35- 112 (b) (3) (19 97) . If no mitigating or enhancement fac tors are present, the presumptive sentence for a Class C felony shall be the minimum sentence within the applicable range. Te nn. Code Ann. § 40-35-210(c) (1997 & Supp. 2002). If enha ncement and mitigating factors exist, however, the tria l court should enhance the minimum sentence within the range as a ppropriate for enhancement factors and then reduce the minimum sentence within the range as appropriate for mitigating fa ctors. Tenn. Code Ann. § 40-35-210(e) (1997 & Supp. 2002). The we ight to be afforded any

particular factor is within the trial court’s discretion. Tenn. Code Ann. § 40-35-210, Sentencing Commission Co mments; State v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).

The trial court concluded that the enhancement f actors outweighed the mitigating fa ctors and sentenced Defendant to nine y ears. The trial court also denied Defenda nt’s request for an alternative sentence. Defendant c hallenges both the length of the sentence imposed and the manner of service.

A defendant who challenges his or he r sentence has the burden of proving that the sentence imposed by

the trial court is improper. Tenn. Code Ann. § 40-35-401(d) (1997), Sentencing Commiss ion Comment s; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). When a defendant challenges the leng th, range, or manner of servic e of his sentence, the reviewing c ourt conducts a de novo review of the record with a presumption that the trial cour t’s determinations

are cor rect. Te nn. Code A

nn. § 40-3 5-401(d) (1997). T his presu mption of c orrect

ness is conditioned upon an affirmative showing in the recor d that the trial court considered the sentencing principles and all relevant fa cts and circumstances. Ashby , 823 S.W.2d at 169.

Defend ant arg

ues that th

e trial c ourt misap

plied enh anceme

nt facto r (14), t hat the of fense was committed while Defendant was on probation from a prior f elony conviction. Def

endant
argue s that no evidence

was pre sented th at his prio r convic tions in Ke

ntucky would con stitute felonies in the state of Tennessee. With regard to the a pplication of that enhancement factor, the trial court stated: “[T]here’s no question in my mind that third deg ree burglary

and unlawful-4-

taking in Kentucky

are felonies and I

find – and he was on probation at that time. So that enhancing factor has bee

n met.”

The record reveals that in 1998, Defe ndant entered guilty

pleas in the Circuit Court of Letcher County , Kentucky, to “third de gree burglary ” and “theft by

unlawful taking or disposition.” Defendant was sentenced to four y ears probation. Copies of the Kentucky indictments and judgments were entered into evidence in this case. The indictments state that both charges are felonies. De fendant also admitted in his testimony that he was a convicted felon.

Under Kentucky

law, the offense of burglary in the third degree occurs when a person, “w it h t he in te nt to co mm it a c ri me , k no wi ng ly e nt er s o r r em ai ns un la wf ul ly i n a bu il di ng .” Ky. Rev. Stat. Ann. § 511.040 (2002). The offense is a Class D felony

. Id . The offense of theft by unlawful taking or disposition occurs when a person “unlaw fully takes or exerc ises control over movable property

of another with intent to deprive him thereof.” Ky . Rev. Stat. Ann. § 514.030 (2002). If the value of

the property is $300 or more , the offense is a Class D felony

. Id

. The elements of third degree burg lary in Kentucky

are essentially

the same as the elements in Tennessee’s burglary statute, which provides that a person who, without the effective consent of the property

owner, enters or remains concea led in a building other than a habitation with the in

tent to co mmit a felo ny, theft or a ssault the rein, co mmits burg lary , which is a Class D felony. See Tenn. Cod

e Ann. § 39 -14-402 ( 1997). Th e eleme nts of theft in the K

entucky statute may or may

not constitute a felony in Tenne ssee. Tennessee’s theft statute provides that “[a] person commits theft of property if, with intent to deprive the owner of property , the person knowingly obtains or e

xercises control over the property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103 (1997). I f the theft is of property

in an amount under $500, the offense is a Class A misdemeanor. Tenn. Code Ann. § 39-14-105(1) ( 1997).

Regar dless of w

hether D efenda

nt’s thef t convict ion in Ken

tucky would be a

felony in Tenness ee, Def

endant’ s burgla

ry convicti on in Kent

ucky clearly constitute s a felon

y in Tennessee. The trial court properly applied enhancement factor (14), that the f elony was committed while Defendant was on probation for a prior fe lony conviction, Tenn. Code Ann. § 40-35-114(14)(C) (Supp. 2002).

As noted a

bove, co pies of the Kentuc

ky indictmen

ts and judg

ments wer

e enter ed into evidenc e. The in dictmentsstate on th eir fac e that bot

h charg es to which Defen dant pled guilty are felonies. Defendant also admitted in his testimony that he was a convicted felon of burg lary and theft in Kentucky

. Defendant also contends that the trial court misapplied enhance ment factor (9), that Defendant has a previous history of unwillingness to comply with the conditions of a se ntence involving release in the community . Tenn. Code Ann. § 40-35-114(9) (Supp. 2002). Defendant argues that there was neve r an adjudication of the alleged probation violation. The trial c ourt-5-

found tha t Defend ant viola

ted the c onditions o f his prob ation. The present ence re port rev eals that in 1999, a bench warrant was issued for proba tion violation in relation to Defendant’s sentences for the burglary and theft convictions in Kentucky . At the time of the presentence report, “the disposition of this charge [was] unknown.” Mr. Adams, Defe ndant’s probation officer in Kentucky , testified at the sentencing hearing that Defendant absconded from probation in Octobe r of 1998 a

nd furthe r violate d the cond

itions of hi s probati on by failing to repor t a change in residence, fa

iling to report as directed, and failing to pay court ordered fees. Defe ndant himself te stified th at he fa iled to co mply

with the c onditions o f probat ion. The r

ecord su pports the trial court’s finding. The enhanceme nt factor does not require proof that a court ha s revoked a defendant’s probation. I t merely requires proof that the defendant has a previous history of noncompliance with conditions of a sentence involving relea se in the community. We conclude that enhancement factor (9) was pr operly applied.

Defendant also challenges the tria l court’s failure to apply

two mitigating factors: that Defendant acted under strong provocation, Tenn. Code Ann. § 40-35-113(2) (1997); and that Defendant was motivated by a desire to provide necessities for his family or himself, Tenn. Code Ann. § 40- 35-113(7 ) (1997) . Our review of th e recor d shows tha

t the tria l court pr operly declined to apply these

mitigating factors. We conclude that the enhanc ement factors applied by the trial court ar e support ed by the rec ord. We fu

rther c onclude t

hat the tr ial cour t proper ly weighe d the enha

ncement and mitig ating f

actors, and Def

endant’ s sentenc e of nine ye ars is appropriate.

Defendant also argues that the trial c ourt erred by denying alternative sentencing. An especially mitiga

ted or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for a lternative sentencing in the absence of evidence to the contrary . Tenn. Code Ann. § 40-35-102(6). However, Defe ndant was sentenced as a Range II multiple offender. He is therefore not entitled to the presumption that he is a favorable c andidate for alternative
sentenc ing. Fu

rthermor e, Defe ndant is no t eligibl e for a c ommunity corrections sente

nce bec ause he was convicted of a violent felony offense. See Tenn. Code Ann. § 40-36-106 (1997 & Supp. 2002). Defendant is also ineligible for any probation because his sentence exceeds eig ht years. See Tenn. Code Ann. § 40-35-303(a) (1997 & Supp. 2002). The tria l court’s denial of an alternative sentence was not only appropriate, but required by statute.

CONCLUSION After a review of the recor d, the judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE