### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 8, 200 8

STA TE OF TEN NES SEE v. JOSEP H BLOO DGO OD

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 06-02005 Jam es M. Lam m ey, Jr., Judge

No. W2007-01090-C CA-R 3-CD - Filed Jul y 11, 2008

The a ppellant, J oseph B loodgood, ple d g uilty to fac ilitation of ag g ravated burg lary and rec eived a sentenc e of two y ear s. The trial court denied the appellant alternative sentenc ing, and t he appe llant now appe als. Upon our r eview of the re cord a

nd the par ties’ briefs, we a ffirm the judg ment of the trial court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the cour t, in which J OHN E VE R E TT W I LLI A M S and J.C. M C L IN , J J ., joined.

L eslie I

. Ba llin (at trial and on appe al) a nd Gra y W. Bartlett (on a

ppeal) , Memphis, Tennesse e, for the appe llant, J oseph B loodgood.

Rob e rt E. Coo pe r, Jr., Attorn ey Ge ne ra l and

Re po rt e r; L a c y

Wilb e r, As sis tant A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Betsy

Carnesa le and Gr egGilbert, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

I n Fe bruar

y 2006, a Shelby

County Gra

nd J ury returne d an indictment cha rg ing the appellant in count one with ag g ravated burg lary and in count two with t h ef t o f prope rty

over $10,000. Subsequently , on Fe bruar y 14, 2007, the appellant enter ed a g uilty plea in c ount one to the amende d
c ha rg e of fa c ili ta tio n o f a g g ra

vate d b ur g lary

wi th a n a g re e me nt t

hat c ount tw o wou ld be no lle prossed. As pa

rt of the plea

ag ree ment, the State rec ommended a sentenc e of two y ear s as a standa rd Rang e I offe nder, a

$500 fine, a

nd restitution in the amount of $2000. The a g ree ment provided that the appe llant would seek probation.I n t he i ndi ct ment , W i l s on’ s f i r s t na me i s s pel l ed “ D uan e. ” 1

-2- At the g uilty

plea he aring , the State re cited the f ollowing f

actua l basis for the plea : September 28 , 2005, Kenne th Clark’s re sidence located a t 3587 th Morning L ight wa s burg larized. Approximately $18,000 in cash w as taken. And investigation r evea led that sever al differ ent suspects ha d been doingwork at the home, and one of t h e wi tnesses hea rd a
conver sation betwee n a Nikita Hood a nd Dway ne Wilson reg arding burg larizing the r esidence. These a re the co-de fenda

nts of the 1 [appellant]. [The appellant] was contac ted to see if he knew if a ny one wa s home at the C l ar k residence on a cer tain date; and w hen they discovere d no one was home at the l ocation, they – Nikita Hood and Dway ne Wi l s on went in and took $18,000 in ca sh from the home. [The appellant] rec eived $2,000 from the home. He was a pe rsonal friend of the victim.

At the sentenc ing he aring , the victim, Kenneth Clark, t es t i fi ed that the appellant had be en a fr iend of his s on and had be en in the Clark house hold numerous times to have dinner or spend the night. Clark did not know a ny of the other parties involved in the burg lary

. When Clar k lear ned of the a pp e lla nt’ s in vo lve me nt i n th e c ri me , h e wa s hur t bec a us e he ha d tre a te d the a

pp e lla nt as a fa mil y friend.

Clar

k s tate d th a t p r io r to th e o f f e n s e , H o o d an d Wi ls o n c a ll e d th e Cl ar k h o u s e hold in an
a tte mpt to a sc e rt a in w he the r a

ny on e wa s home

. Cla

rk re c a lle d tha t th e mon e y ha d b e e n lo c ke d in a dra wer in his bedroom. Clark said that he f elt betra y ed by the appellant, and his c hildren felt bad
a bo ut b ri ng ingthe a

pp e lla nt i nto the ir

ho me . Cl a

rk sa id t hat a ft e r t he of fe ns e , h e ha d p ro ble ms w ith his children bec ause he thought they might be involved.

The a ppellant testified that he was twenty -two y ear s old, ha d rec ently marrie d, and had atenmonth-old daug hter. The appellant stated that he had r ece ived his GED. He said that when he was eig hteen, he was c onvicted of misdemea nor drugpossession. He re ceive d judicial diversion for the offe nse, and the conviction was e x pung ed fr om his recor d aft er h e s u ccessfully completed e leven months and twenty -nine da y s on probation.

The a ppellant said that in order to pay restitution, he had save d $600 and he c ould pay the balanc e in thr ee monthly pay ments of $465. He stated that he would ear n the money

b y working construction, maintaining that he had been g uara nteed forty hours of work pe r we ek. The appellant said that he a

nd his wife we re living with his m o t h er -i n -l aw to save money so he could pa

y restitution.-3-

The a ppellant said that co- defe ndant Wils on is his father- in-law and that co-de fenda nt Hood is the son of Wil son’s g irlfriend. The appellant said that he ha d lear ned fr om David Philli ps, a fr iend of tw o o f C lark ’s c hil dr e n, tha t Cla rk ke pt m on e y

in h is h ome . T he a

pp e lla nt t e sti fi e d th a t he did not know specific ally

wher e the money

was located be ca u s e h e did not g et that information fr om P hi ll ip s. The a

pp e lla nt t old Ho od and Wils on a bo ut t he mon e y , a

nd Ho od “ hatc he d th e pla

n” to burg larize the home. Hood told the appellant that if he would disclose where the money was, Hood would “g o g et it.” Eventua ll y , the appe llant provided the infor mation. Additionally , he g ave dir e c tio ns to C lark ’s ho me , Clark ’s te le ph on e numbe r, and a pp ro xima te tim e s w he n p e op le wo uld be in the home.

T h e ap p el l an ts ai d , “I rea l l y d o n ’t kn o w wh y I d i d t h at

. ” H e a ck n o wl ed gedt h at ev en t h o u gh he did no t ne e d mo ne y , h e “ le t th e tho ug ht o f m on e y c ome be fo re fr ie nd sh ip. ” Th e a pp e lla nt s a id that Hood ca lled him after the burg lary and told the appe llant to m ee t him at a g as station. Hood paid the appe llant $2,000 for p r o v id inginformation about the money . After war d, the appe llant drove Hood home. The appellant use d about half of the burg lary

proce ed s to pay

a truc k note and a

n insurance bill. Two day s later, while the appellant wa s at wo rk , he wa s robbed at gunpoint. The robber took $1,100 that the appellant ha d left fr om the burg lary proce eds. The a

ppellant re ported the robbe ry t o p o l i ce. The appe llant said that he wa s sorry for his involvement in the cr ime, maintaining that betray

ing the Clarks “hurt me mor e than a ny thing.”

Th e ap pe lla

nt’ s p re se nte nc e re po rt

re fl e c ts that “ [o]n 1 2/4 /20 06 , Wil so n p le d guil ty to fac ilitation of agg ravated burglar y

. He was sentenc ed to 2 y ear s (suspende d) and placed on 2 y ear s probation. On 11/30/2006, Hood pled g uilty as cha rg ed and w as sentenc ed to 3 y ear s (suspended) and plac ed on thre e y ear s probation.” The appellant’ s counsel argued, “[W ]e just don’t under stand ho w the pr inc ipa ls c ou ld b e g ra nte d [su sp e nd e d s e nte nc e s] w ithba d r e c or ds and [the a pp e lla nt] i s without a bad re cord.” The trial c ourt commented that “for me, it a ll boils down to the violation of trust.”

At the conc lusion of the sentenc ing he aring , the trial cour t stated that it was troubled that the
a pp e lla nt h a d v iol a te d th e Cla

rk s’ tr us t. Th e c ourt

sa id t hat th e c ri me wa s “ de plo ra ble ,” e sp e c ia lly beca use Clark’s vic tim im pact state ment indicated that the c ash stolen was, in pa rt , the family ’s Christmas money

. The court noted that the appellant had previously been g iven diversion and “ had an opportunity

to make his life rig ht.” The c ourt said that it did not believe the appellant ha d g ood potential for r ehabilitation beca use, despite pa st opportunity to refor m, the appellant did not do so. On appe al, the appe llant challeng es the trial c ourt’s denia l of alternative sentenc ing.

II. Ana lys is An appe llant is eligible for alternative sentenc ing if

the sentenc e ac tually

imposed is ten y ear s or less. See Te nn. Code Ann. § 40-35-303( a) ( 2006). The a ppellant’s sente nce me ets this criteria. Mo re ov e r, a n a

pp e lla nt w ho is a

n e sp e c ia lly

mit ig a te d o r s tand ard

of fe nd e r co nv ic te d of a Cla ss C , D, or E felony should be considere d a favor able candidate for alternative sentenc ing a bsent evidenc e to the contra

ry . See Te nn. Code Ann. § 40-35-102( 6). The following se ntencingconsiderations, set-4-

forth in Tennessee Code Annotated section 40-35-103( 1), m ay constitute “evide nce to the contrar y ”: (A ) C o n fi n em en ti s n ec es s ary t o p ro t ec ts o ci et y

b y re s t ra i n i n g a de fe nd ant w ho ha s a

lon g his tor

y of c ri min a l c on du c t; (B ) Confinement is nec essar y to avoid depre ciating the seriousne ss of the offe nse or c onfi n em ent is particular ly suited to provide an eff ective de terre nce to other s likely to commit si milar offe nses; or (C) Mea sures less re s t ri ctive than c onfinement have fr equently or rec ently been a pplied unsucce ssfully

to the defe ndant.

State v. Z e oli a , 9 28 S.W. 2d 45 7, 46 1 ( Te nn . Cr im. Ap p. 19 96 ). Ad dit ion all y , a co ur t sh ou ld consider the defe n d an t ’s p o tential or lac k of potential for reha bilitation when determining if an alternative sentenc e would be a ppropriate . See Te nn. Code Ann. § 40-35- 103(5).

In t h e i n s t an tc a s e , t h e a

p p e l l an t i s a

s t an d ar d R an g e I o f

f e n d e r c o n v i c t e d

o f a C l a s s E f e l o n y; there fore , he is c onsidered to be a favor able candidate for alternative sentenc ing. Howeve r, the trial
c ourt sa id that “ the natur e and the c ir c ums tanc e s of thi s

. . . pa rt ic ula r of fe ns e we ighs against” g ranting alternative sentenc ing, noting that if someone had been home when the of fense was c arr ied
ou t, t he of fe ns e “ ha [d] th e po ten ti al of be inga ve ry , v e ry , v e ry

awf ul s itu a tio n. Som e bo dy

c ou ld have die d.” A dditionally , the cour t opined that “probation at all would rea lly depre ciate the seriousness of the offe nse,” particular ly in light of the appellant’s violation of a trust in order to g et
mon e y to “ pa y [] a c ar n ote and

so me ins ur anc e or

so me thi ng .” F ur

the r, the c ourt state d that it did not believe the a

ppellant had g ood potential for rehabilitation. The court noted t hat t he appe llant had a pre vious conviction, for which h e rec eived judicial diver sion. Despite re ceivingdiversion, the
a pp e lla nt a g a in c omm itt e d a

c ri me , in dic a tin g that t he a pp e lla nt w a s r e sis tant t o r e fo rm . A s th is court ha s said, “[a] felon’s reha bilitation pot ential and the r isk of repe ating crimi nal conduc t are fundame ntal in determining whether he or she is suited for a lternative se ntencing .” State v. Ke en, 996 S.W .2d 842, 844 (Tenn. Crim. App. 1999) . We find no err or in t h e t rial cour t’s denial of al t ern at i v e s en t en ci n g.
III. Conclusi on

Ba sed upon the for eg oing, w e af firm the judg ment of the trial c ourt.

___________________________________ NORMA McGEE OGL E, J UDGE