# FILED
March 17, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9701- CR-00012 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDAL L WYATT, JR. FRANKLIN W. CAMPBELL, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : DEANNA BE LL JOHN SON JOHN KNOX WALKUP 211 T hird Aven ue No rth Attorney Generaland Reporter Nashvill e, TN 37201 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attor ney General STEVE DOZIER Assistant Distri ct Attor ney General Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED AS MODIFI ED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defendant, Fran klin W. Campbell, appeal s as of right p ursua nt to R ule 3 of the Tennessee Rul es of Ap pellate Procedure. He pl eaded guilt y to one
coun t of sim ple robbery and was se ntence d as a sta ndard, R ange I o ffender to six years of i ncarcerati on. T he trial cou rt denied probatio n and c omm unity corrections. The Defendant now appeals his sentence andargues that the tri al court erred by sentencing him to the maximum sentence and for denying him an alternative to incarceration. We affirm the judgment of the trial court ordering t he Defendant to s erve hi s se nte nce in conf ine me nt but m odify t he length of the sentence to five years.

In Septem ber of 19 95, the D efenda nt beca me ac quainte d with Christi na Marie Gribbin, who he knew was a prosti tute. The Defendan t allowedGribbin to stayat his apartment with him. The Defendant is atranssexualand dresses as
a woma n. Gribb in aske d the D efend ant on occa sions to acc omp any he r while she worked, and he had sat in the car

while she went inside a man’s house on at least oneoccasion. On September 18, 1995, Gri bbin asked the Defe ndant to ride in her car with her whi le she went to get some money. The Defendant denied that he knew that she intended to co mmit a rob bery.

The Defendant was dri nking alcoholand using Vali um thatday. He rode with Gribbin to an ATM in Madison, Tennessee. Patricia Cam pbell, th e victim in this case, withdrew cash f rom the machine and then dr ove four mil es to the Chestnut Villa Ap artme nts on Due W est Av enue . Gribb in and the Defendant first-3-

observed the vict im at the ATM, then foll owed her to the apa rtment complex. The victim’s three grandchi ldren, ages four, f ive, and six, we re with he r. Gribbin got out of her vehi cle, went to the vi ctim as she exi ted her car, and hel d a knife to her throat. Gribbin sai d: “Give me your purse or I wi ll ki ll you. ” The Defendantwas yelli ng from Gribbin ’s car, “Hurry up! ” Gribbin grabbed the vict im’s purse and fled in her vehic le, a mar oon Fo rd Esco rt. The v ictim st ated th at the p asse nger in the vehicle was a white femal e.

The police were ca lled and a des cription of the robbe rs was br oadca st. Sh ortly thereafter, Gribbi n and the Defendant wer e apprehended in amaroo n E s cort at Ga llatin Ro ad an d Stra tford A venue . The o fficers fo und th e victim ’s purse sitti ng on the Defendant’ s lap, and found the knife used in the r obbery and the victim’s ATM card under the driver’s seat . The vict im identi fied Grib bin and the De fendan t as the pe rsons w ho had robbed her.

Gribb in and the Defendant wer e charged with aggrav ated robbery , and the Defendant plead ed gu ilty to sim ple robbery. See Tenn. Code Ann. § 39-13-402; Tenn. Cod e Ann. § 39-13-40 1. The trial judge se ntenced him to six years imprison ment. After conduct ing a heari ng on August 1, 1996, the t ria l judge denied the Defendant’ s req u est to s erve h is sent ence on pro bation or in
comm unity corrections. The D efenda nt now a ppeals , contend ing that the length of his sen tence is exce ssive a nd tha t the trial c ou rt erred by denying pr obation1 We note that the Defendant received pr e-sentence jai l credi t and was incar cerated duri ng the init ial pendency

of this a ppeal. Accord ing to Department of Correcti on records the Defen dant was paroled on October

24, 1997. The Department’s records fur ther refl ect that a parole vi olati on warrant was i ssued on November 10, 1997, and was ser ved on the Defendant on February 20, 1998. -4- or com mun it y corr ection s. Alt hough theseissues may be somewhat moot , we nonetheless consider them on the merits. 1

When an accused chall enges the lengt h, range, or the manner of service of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence with a presumption that the determinati ons m ade by t he trial cou rt are corre ct. Tenn. Code Ann. § 40-35-401(d) . This presumpti on is "condi tion ed u pon the affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant facts and circums tances ." State v. Ashby , 823 S.W.2d 166, 16 9 (Ten n. 1991 ).

In conducting a

de novo revi ew of a sentence, this cour t must consider : (a) the eviden ce, if an y, rece ived at th e tria l an d the sentenci ng hearing; ( b) the presentence report; (c) t he pri nciples o f sentenc ing and argum ents as to sentencing alternat ives; (d) the nature and characteristi cs of the criminal conduct involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement thatthe defen dant made on his o wn behalf; and(g) the potential o r lack of potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawfulsentence after having given due considerat ion and properweight to t he factors and princi pals set out under the sentencing law, and-5-

thatthe tri al court' s findi ngs of factare adequately supported by t he record, t hen
we may not m odif y the sentenceeven if we woul d have prefer red a diff erent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

We believe t he record is clear that

the trialcourt fai led to properly consi der the statutory se ntencing principles and state them on the recor d. In imposing t he sentence, the trial court referred to t he fact th at the Defendant had prior convictions, but did n ot further e laborate his sente ncing de cision oth er than to state that to ev

en “think a bout” putt ing the Defedant on proba tion wa s “abs olutely ridiculous .” Therefore, we must we conduct a de novo review of the D efend ant’s sentence. The prese ntence report reflect s thatthe Defend ant was thirty-five at the time of sen ten cing, di vorced, wi th an eight -year-ol d daughter. He had not held steady employment f or the past five years , but had worked as a fem al e impersonator

on a spora dic basis. He was currentl y a transsex ual and was taking female hormones . He stated that he had a pr escripti on drug addict ion thatbegan when he was a tee na ger. He had used Vali um, pain pil ls, and alcoho l, and bing ed on c ocaine every cou ple of mo nths. He stated that he has had drug a nd alc ohol tre atme nt, as w ell as several psychiatric hospitali zations. The Defe ndan t’s prior convic tions inclu de the unl awful s ale of liquor , twoDUIs, drivi ng without a license, and shoplif ting.

Patric ia Cam pbell c omp leted a victim im pact s tatem ent in which she stated thatshe has had insomnia, headaches and recurr ing fear because of the crime. She missed twenty days of work. Her

grandchil dren have conti nued to ask why the crime occurre d and have had night mares about “nan ny” bei ng kill ed. The victi m received some counseli ng regarding t he offense.-6- Pam ela Warden testif ied at thesentencing hearing that s he would provi de the Defendant a placeto li ve and allow hi m to work for her as a housekeep er. She had know n the Defen dant for years and stated that he r childre n liked him well. The D efenda nt testifi e d that, at the time of

the robbery , he had a recent breakup, had only known Gri bbin for a f ew days, and had just been r eleased from
a psychiatric hospital the week before. The Defendant test ified regarding his se xchange process and his concerns about bei ng incarcerated. He stated t hat he
was currently in the Davids on Coun ty Cri mi nal Justi ce Center in t he Special Nee ds Facility. He te stified that he could no t go to the g ym for fea r of oth e r inmates, and tha t two me n nearly fo rced him to perform ora l sex. He denied that he knew a bout the robbery in advanc e and s tated that h e felt re morseful about the crime. T he De fendan t admitte d that he fled to Flori da when his last
s entencing hearing was sch eduled , but return ed and turned h imself i n. H e initially denied a prior criminal record, but t hen admitted he had l ied and that he had two DUIs.

Darw in Mitchell, an emp loyee from a D avidson Co unty correctional facility, testif ied that the Defendant coul d b e housed in the Speci al Management area. The i nmates there ar e locked d own for t

wenty- two hours

and are out

for t wo hours, five days per week. Some cells house two persons, the others hold o nly
one. Inmates who request special pr

otection may be housed there. Mitche ll did not know of any i nmates there whowere transsex uals. The SpecialNeeds unit providescare for

those with m edica l proble ms. T he inm ates a re out o f their cells eighthours a day. Mitchell suggested that the Speci al Management segregati on unit wou ld be app ropriate for the Defe ndant.-7- The Defenda nt argues that a ppro p riate m itigating circum stanc es in th is
case are (a) That heplayed a minor role in t he commission of t he offense; and (b)that he was under great stress and t he influ ence of drugs and al cohol when the crime was c omm it ted. Tenn. Code Ann. § 40-35-113(4), (3). We find the argument for the app lication of fa ctor (3) un convincing . As for f actor (4) , one could consider t hat the Defendant rem ained i n the c ar and did no t actua lly physic ally perform the act thatconstit uted the aggrav ated robbery. However, the evidence also shows that the Defenda nt yelled “Hurry up!” to his accompli ce as she robbed the vi ctim. Moreover, when the Defendant was captured, he was holding the vict im’s purse. The circumstances s uggest that the Defendant was intima tely involved with the crime and we cannot conc lude that it would b e appropriate to a pply factor (4).

The State proposes t he applicat ion ofthree enhancementfactors: (a) That the Defendant has prev ious history of cr iminal conv iction s; (b) thatthe Defendant possessed or employed a fi rearm, expl osive devi ce, or other deadly weapon during the commission of the offens e; and (c) t hat the Defendant had no hesitati on abou t co mmit ti ng a cri me when the risk to human life was high. Tenn. Code A nn. § 40-35-1 14(1), (9), (10).

The record is clear that the Defendant has h ad several prior cri minal convictions. Therefore, t he applic ation o f this en hanc eme nt facto r is appropriate. Next, the State ar

gues that factor (9) , that t he Defendan t e mployed a weapon during the offens e, should be appl ied. While it is true that a weapon was employed by his accom plice du ring the co mmission of the of fense, ther

e is no evidence that the “ defendant possessed or em plo yed” the kni fe. Tenn. Code-8-

Ann. § 40-35 -114(9). A s a result, fac tor (9) sho uld not be applied. Finally, the State contends that

factor ( 10), that

the Defendant had no hesitati on about committing a crime when the r isk to human life was high, may be applie d in this
case. We agree. Here , the Defenda nt and his coh ort cove rtly obse rved, t hen followed the vict im several mi les to an apar tment complex. In broad dayl ight, t he Defendant urged on Ms. Gribbi n to perpetr ate the robb ery using a knife, which she held to the victim’s thro at. Moreover, t he victi m’s young grandchi ldren were presentand wer e also a t risk of being harmed dur ing the commissi on of the crime. The Defendant was convicted of simple robbery, t hus, factor (10) i s n o t precluded as being an eleme nt of the offe nse. See State v. Hicks , 868 S.W.2d 729, 73 2 (Ten n. Crim. A pp. 199 3). The refore, facto r (10) ma y be app lied.

The sentence range for a Range I offender for robbery, a Clas s C felony, is three (3) to (6) year s. Tenn. Code Ann. § 40-35-101. While we recognize t he seriousness of the offense committed, our de novo review of the record l eads us to conclude that a sentence in the upper end of the ran ge is warranted, but that the circumstancesdo not merit the maximum sentence in the range . From our denovoreview and i n considerat ion of enh ancem ent factor s (1) and(10), we modify th e Defe ndant’s s entenc e to five (5) ye ars.
Next, the Defendant argues t hat the trial court erred by denyi ng probation
or community correct ions. Alt hough probation "must be automat ically cons id ered
as a sentencing opt ion for el igibledefendants, the defen dant is not au toma tically entitl ed to probati on as a matter of law."Tenn. Code Ann. § 40-35-303 (b) (1990) (Sentencing Com miss ion Co mm ents). T his Co urt mu st beg in it s senten cing determinati on by reviewing the purposes o f se ntencing set forth i n Tennessee-9-

Code Annotated section 40- 35-102. State v. Davis , 940 S.W.2d 558,559 (Tenn. 1997).

I f an accused has been convi cted of a Clas s C, D or E felony and sentenced as an esp e cially mit igated or standard offender, there is a presumption, rebuttabl e in nature, that the accused is a fav orable candi date for al ternative sent enci ng unl ess di squal ifi ed by some pr ovi sion of t he Te nnesse e Criminal Sentencing Reform Act of 1989. Tennessee Code Annotated section 40-35-1 02 provid es in part:
(5) In recogniti on that state prison capaciti es and the funds to build and main tain them are limited, convicted felons comm itting the most seve re offenses, possessing cri minal histories evi ncing a c lear disr egard for the laws a nd m orals o f socie ty, and evinci ng failu re of past ef forts at rehabili tation shall be given first priority regarding sentencing involving incarcerat ion; and (6) A defendantwho does not fal l withi n the parameters of s ubdivisi on (5) and is an es pecia ll y mitigate d or stan dard offe nder co nvicted of a Class C, D o r E felon y is pre sumed to be a favora ble candidate for alternative s enten cin g options i n the absence of ev idence to t he contrary.
The sentencing proce ss m ust ne cess arily commence with a determinat ion of whetherthe accused is entitled to th e bene fit of the pres umptio n. Ashby , 823 S.W.2d at 169. As our supreme c ourt said in Ashby : "If [the] de termin ation is favora ble to the defe ndant, the trial court m ust presu me tha t h e is subj ect to alternative sentencing. If the court is presented wit h evide nce sufficient to
ove rco me the presumpti on, then i t may sentence t he defendant to confinement accord ing to the s tatutory pro vision[s]." Id. "Evidence to the cont rary" may be found in app lying the cons ideratio ns tha t gover n sen tence s in vo lving-10-

confinem ent, which are set forth i n Tennessee Code Annotated secti on 40-35-103 (1):
(A) Conf inem ent is n eces sary to protec t socie ty by restr aining a defend ant who has a lon g history of c riminal co nduct; (B) Confinement is necessary to avoid depreci ating the seriousnessof the offense or confinem ent is particularly suited to provid e an effective deterrence to others li kely to co mmit similar offenses; or (C) Measures less restrict ive than conf inement have fr equently or recently b een ap plied uns uccess fully to the de fendan t.

In the case at bar, t he De fendan t was convicte d of the Class C felony of robbe ry, for w hich he is pr esumptively

entitl ed to an alternative sentence. Howeve r, the record reflect s that thetrialjudge was concerned with the Defe ndan t’s focus on his pr oblems and a lack of considerat ion for thevi cti m. Apparen tly, the trial court determ ined that c onfinem ent was neces sary to avoid depreciati ng the seri ousness of the of fense.
The potentialor lack of potentialforrehab ilitation o f a defe ndan t shou ld be considered in determining w hether he sh ould be gran ted an alternative sentence. Tenn . Code Ann. § 4 0-35-10 3(5). T he record ref lects t hat the Defendant failed to ap pear at h is first senten cing hea ring beca use he fled to Florida. Althoug h he d id return to Tennessee, this behavior woul d certainly be suffic ientto unde rmine th e trial court’s c onfiden ce in the D efenda nt’s ability to abide by the term s of an alte rnative se ntence
. See State v. Williams , 914 S.W.2d 940, 950 (Tenn. Crim. App. 1995). Alt hough Ms. Warden offered t he Defendant
a place to work and live , the D efend ant ha s had an un stable work history in the-11-

past and has had a l ong h ist ory of d rug abus e andpsychi atric pro ble ms that have not abated with treatment. Fina lly, the Defendant demonstr ated a lack of

candor while testif

ying at t he sentencing hearing. The Defendant's lack of credibi lity

and unwillingnessto ac cept res pons ibility for his crime reflect a dvers ely on h is rehab ilitation p otentia l. See State v. Zeolia , 928 S.W.2d 457, 463 (Ten n. C ri m. App. 1996); State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Cri m. App. 1994). In light of the evidencein therecord, we cannot concludethat the t rial cour t erred by orderin g the De fendan t to serve his senten ce in con fineme nt.

The Communi ty Corr ections A ct allows ce rtain eligible o ffenders to particip ate in community-based alternat ives to i ncarcerati on. Tenn. Code Ann. § 40-36-103 . A defendan t must first be a suitable candidate for alter native sentencing. If so, a defendant i s then eligibl e for partici pation in a co mm unity correct ions program if he al so satisf ies severalminimum eligibi lity criteria s e t forth at Tennessee Code Annot ated sec tion 40-36- 106(a). Because t he Defendant has fai l ed to establish tha t he is a qualified cand idate for alternative sentencing, he is not el igible for community corrections.
According ly, we affirm the judgm en t of the t rial cour t orderi ng the Defendant to serve his sentence in confineme nt, but modify the se ntence to five years. This case is r emanded to the tri al cou rt for entry of an order consi stent with thi s opinion.

____________________________________ DAVID H. WELLES , JUD GE-12-

CONCUR:

___________________________________ JERRY L . SMI TH, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE