FILED

March 17, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9701-CR-00012

)

Appellee, )

)

) DAVIDSON COUNTY

VS. )

) HON. J. RANDALL WYATT, JR.

FRANKLIN W. CAMPBELL, ) JUDGE

)

Appellant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

DEANNA BELL JOHNSON JOHN KNOX WALKUP

211 Third Avenue North Attorney General and Reporter

Nashville, TN 37201

GEORGIA BLYTHE FELNER

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

VICTOR S. JOHNSON

District Attorney General

STEVE DOZIER

Assistant District Attorney General

Washington Square, Suite 500

222 Second Avenue North

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED AS MODIFIED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Franklin W. Campbell, appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. He pleaded guilty to one

count of simple robbery and was sentenced as a standard, Range I offender to

six years of incarceration. The trial court denied probation and community

corrections. The Defendant now appeals his sentence and argues that the trial

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 the

Defendant to serve his sentence in confinement but modify the length of the

sentence to five years.

In Septem ber of 1995, the Defendant became acquainted with Christina

Marie Gribbin, who he knew was a prostitute. The Defendant allowed Gribbin to

stay at his apartment with him. The Defendant is a transsexual and dresses as

a woman. Gribbin asked the Defendant on occasions to accompany her while

she worked, and he had sat in the car while she went inside a man’s house on

at least one occasion. On September 18, 1995, Gribbin asked the Defendant to

ride in her car with her while she went to get some money. The Defendant

denied that he knew that she intended to commit a robbery.

The Defendant was drinking alcohol and using Valium that day. He rode

with Gribbin to an ATM in Madison, Tennessee. Patricia Campbell, the victim in

this case, withdrew cash from the machine and then drove four miles to the

Chestnut Villa Apartments on Due W est Avenue. Gribbin and the Defendant first
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observed the victim at the ATM, then followed her to the apartment complex. The

victim’s three grandchildren, ages four, five, and six, were with her. Gribbin got

out of her vehicle, went to the victim as she exited her car, and held a knife to her

throat. Gribbin said: “Give me your purse or I will kill you.” The Defendant was

yelling from Gribbin’s car, “Hurry up!” Gribbin grabbed the victim’s purse and fled

in her vehicle, a maroon Ford Escort. The victim stated that the passenger in the

vehicle was a white female.

The police were called and a description of the robbers was broadcast.

Shortly thereafter, Gribbin and the Defendant were apprehended in a maroon

Escort at Gallatin Road and Stratford Avenue. The officers found the victim’s

purse sitting on the Defendant’s lap, and found the knife used in the robbery and

the victim’s ATM card under the driver’s seat. The victim identified Gribbin and

the Defendant as the persons who had robbed her. 

Gribbin and the Defendant were charged with aggravated robbery, and the

Defendant pleaded guilty to simple robbery. See Tenn. Code Ann. § 39-13-402;

Tenn. Code Ann. § 39-13-401. The trial judge sentenced him to six years

imprisonment. After conducting a hearing on August 1, 1996, the trial judge

denied the Defendant’s request to serve his sentence on probation or in

comm unity corrections. The Defendant now appeals, contending that the length

of his sentence is excessive and that the trial court erred by denying probation
1We note that the Defendant received pre-sentence jail credit and was incarcerated during the 

initial pendency of this appeal. According to Department of Correction records the Defendant was

paroled on October 24, 1997. The Department’s records further reflect that a parole violation

warrant was issued on November 10, 1997, and was served on the Defendant on February 20,

1998.

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or community corrections. Although these issues may be somewhat moot, we

nonetheless consider them on the merits.1

When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). 

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancem ent factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and
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that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

We believe the record is clear that the trial court failed to properly consider

the statutory sentencing principles and state them on the record. In imposing the

sentence, the trial court referred to the fact that the Defendant had prior

convictions, but did not further elaborate his sentencing decision other than to

state that to even “think about” putting the Defedant on probation was “absolutely

ridiculous.” Therefore, we must we conduct a de novo review of the Defendant’s

sentence. The presentence report reflects that the Defendant was thirty-five at

the time of sentencing, divorced, with an eight-year-old daughter. He had not

held steady employment for the past five years, but had worked as a female

impersonator on a sporadic basis. He was currently a transsexual and was

taking female hormones . He stated that he had a prescription drug addiction

that began when he was a teenager. He had used Valium, pain pills, and

alcohol, and binged on cocaine every couple of months. He stated that he has

had drug and alcohol treatment, as well as several psychiatric hospitalizations.

The Defendant’s prior convictions include the unlawful sale of liquor, two DUIs,

driving without a license, and shoplifting.

Patricia Campbell completed a victim impact statement in which she stated

that she has had insomnia, headaches and recurring fear because of the crime.

She missed twenty days of work. Her grandchildren have continued to ask why

the crime occurred and have had nightmares about “nanny” being killed. The

victim received some counseling regarding the offense.
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Pamela Warden testified at the sentencing hearing that she would provide

the Defendant a place to live and allow him to work for her as a housekeeper.

She had known the Defendant for years and stated that her children liked him

well. The Defendant testified that, at the time of the robbery, he had a recent

breakup, had only known Gribbin for a few days, and had just been released from

a psychiatric hospital the week before. The Defendant testified regarding his sexchange process and his concerns about being incarcerated. He stated that he

was currently in the Davidson County Criminal Justice Center in the Special

Needs Facility. He testified that he could not go to the gym for fear of other

inmates, and that two men nearly forced him to perform oral sex. He denied that

he knew about the robbery in advance and stated that he felt remorseful about

the crime. The Defendant admitted that he fled to Florida when his last

sentencing hearing was scheduled, but returned and turned himself in. He

initially denied a prior criminal record, but then admitted he had lied and that he

had two DUIs.

Darwin Mitchell, an employee from a Davidson County correctional facility,

testified that the Defendant could be housed in the Special Management area.

The inmates there are locked down for twenty-two hours and are out for two

hours, five days per week. Some cells house two persons, the others hold only

one. Inmates who request special protection may be housed there. Mitchell did

not know of any inmates there who were transsexuals. The Special Needs unit

provides care for those with medical problems. The inmates are out of their cells

eight hours a day. Mitchell suggested that the Special Management segregation

unit would be appropriate for the Defendant.
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The Defendant argues that appropriate mitigating circumstances in this

case are (a) That he played a minor role in the commission of the offense; and

(b)that he was under great stress and the influence of drugs and alcohol when

the crime was committed. Tenn. Code Ann. § 40-35-113(4), (3). We find the

argument for the application of factor (3) unconvincing. As for factor (4), one

could consider that the Defendant remained in the car and did not actually

physically perform the act that constituted the aggravated robbery. However, the

evidence also shows that the Defendant yelled “Hurry up!” to his accomplice as

she robbed the victim. Moreover, when the Defendant was captured, he was

holding the victim’s purse. The circumstances suggest that the Defendant was

intimately involved with the crime and we cannot conclude that it would be

appropriate to apply factor (4).

The State proposes the application of three enhancement factors: (a) That

the Defendant has previous history of criminal convictions; (b) that the Defendant

possessed or employed a firearm, explosive device, or other deadly weapon

during the commission of the offense; and (c) that the Defendant had no

hesitation about committing a crime when the risk to human life was high. Tenn.

Code Ann. § 40-35-114(1), (9), (10).

The record is clear that the Defendant has had several prior criminal

convictions. Therefore, the application of this enhancement factor is appropriate.

Next, the State argues that factor (9), that the Defendant employed a weapon

during the offense, should be applied. While it is true that a weapon was

employed by his accomplice during the commission of the offense, there is no

evidence that the “defendant possessed or employed” the knife. Tenn. Code
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Ann. § 40-35-114(9). As a result, factor (9) should not be applied. Finally, the

State contends that factor (10), that the Defendant had no hesitation about

committing a crime when the risk to human life was high, may be applied in this

case. We agree. Here, the Defendant and his cohort covertly observed, then

followed the victim several miles to an apartment complex. In broad daylight, the

Defendant urged on Ms. Gribbin to perpetrate the robbery using a knife, which

she held to the victim’s throat. Moreover, the victim’s young grandchildren were

present and were also at risk of being harmed during the commission of the

crime. The Defendant was convicted of simple robbery, thus, factor (10) is not

precluded as being an element of the offense. See State v. Hicks, 868 S.W.2d

729, 732 (Tenn. Crim. App. 1993). Therefore, factor (10) may be applied. 

The sentence range for a Range I offender for robbery, a Class C felony,

is three (3) to (6) years. Tenn. Code Ann. § 40-35-101. While we recognize the

seriousness of the offense committed, our de novo review of the record leads us

to conclude that a sentence in the upper end of the range is warranted, but that

the circumstances do not merit the maximum sentence in the range. From our

de novo review and in consideration of enhancem ent factors (1) and (10), we

modify the Defendant’s sentence to five (5) years. 

Next, the Defendant argues that the trial court erred by denying probation

or community corrections. Although probation "must be automatically considered

as a sentencing option for eligible defendants, the defendant is not automatically

entitled to probation as a matter of law." Tenn. Code Ann. § 40-35-303(b) (1990)

(Sentencing Commission Comments). This Court must begin its sentencing

determination by reviewing the purposes of sentencing set forth in Tennessee
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Code Annotated section 40-35-102. State v. Davis, 940 S.W.2d 558,559 (Tenn.

1997).

If an accused has been convicted of a Class C, D or E felony and

sentenced as an especially mitigated or standard offender, there is a

presumption, rebuttable in nature, that the accused is a favorable candidate for

alternative sentencing unless disqualified by some provision of the Tennessee

Criminal Sentencing Reform Act of 1989. Tennessee Code Annotated section

40-35-102 provides in part:

(5) In recognition that state prison capacities and the funds to build and

maintain them are limited, convicted felons committing the most severe

offenses, possessing criminal histories evincing a clear disregard for

the laws and morals of society, and evincing failure of past efforts at

rehabilitation shall be given first priority regarding sentencing involving

incarceration; and

(6) A defendant who does not fall within the parameters of subdivision

(5) and is an especially mitigated or standard offender convicted of a

Class C, D or E felony is presumed to be a favorable candidate for

alternative sentencing options in the absence of evidence to the

contrary.

The sentencing process must necessarily commence with a determination

of whether the accused is entitled to the benefit of the presumption. Ashby, 823

S.W.2d at 169. As our supreme court said in Ashby: "If [the] determination is

favorable to the defendant, the trial court must presume that he is subject to

alternative sentencing. If the court is presented with evidence sufficient to

overcome the presumption, then it may sentence the defendant to confinement

according to the statutory provision[s]." Id. "Evidence to the contrary" may be

found in applying the considerations that govern sentences involving
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confinem ent, which are set forth in Tennessee Code Annotated section

40-35-103(1):

(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. 

In the case at bar, the Defendant was convicted of the Class C felony of

robbery, for which he is presumptively entitled to an alternative sentence.

However, the record reflects that the trial judge was concerned with the

Defendant’s focus on his problems and a lack of consideration for the victim.

Apparently, the trial court determined that confinement was necessary to avoid

depreciating the seriousness of the offense.

 The potential or lack of potential for rehabilitation of a defendant should

be considered in determining whether he should be granted an alternative

sentence. Tenn. Code Ann. § 40-35-103(5). The record reflects that the

Defendant failed to appear at his first sentencing hearing because he fled to

Florida. Although he did return to Tennessee, this behavior would certainly be

sufficient to undermine the trial court’s confidence in the Defendant’s ability to

abide by the terms of an alternative sentence. See State v. Williams, 914 S.W.2d

940, 950 (Tenn. Crim. App. 1995). Although Ms. Warden offered the Defendant

a place to work and live, the Defendant has had an unstable work history in the
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past and has had a long history of drug abuse and psychiatric problems that have

not abated with treatment. Finally, the Defendant demonstrated a lack of candor

while testifying at the sentencing hearing. The Defendant's lack of credibility and

unwillingness to accept responsibility for his crime reflect adversely on his

rehabilitation potential. See State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim.

App. 1996); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). In

light of the evidence in the record, we cannot conclude that the trial court erred

by ordering the Defendant to serve his sentence in confinement. 

The Community Corrections Act allows certain eligible offenders to

participate in community-based alternatives to incarceration. Tenn. Code Ann.

§ 40-36-103. A defendant must first be a suitable candidate for alternative

sentencing. If so, a defendant is then eligible for participation in a community

corrections program if he also satisfies several minimum eligibility criteria set

forth at Tennessee Code Annotated section 40-36-106(a). Because the

Defendant has failed to establish that he is a qualified candidate for alternative

sentencing, he is not eligible for community corrections.

Accordingly, we affirm the judgment of the trial court ordering the

Defendant to serve his sentence in confinement, but modify the sentence to five

years. This case is remanded to the trial court for entry of an order consistent

with this opinion.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE