### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 23, 2002 Session STATE OF TENN ESSEE v. GABOR P ALASTI Direct Appeal from the Criminal Court for Ham ilton County No. 232185 Douglas A. Meyer, Judge

No. E2001-01642-CCA-R3-CD April 10, 2003
The defend ant, G abor P alast i, was convi cted u pon hi s plea s of gui lty to th e charge s of vehicular assault and t hree counts of reckless endang erment. He originally received a four y

ear effective sentence with 11 months, 29 days of inc arce ration fo llowed by probatio n. This wa s ultimately altered by the trial judge

to require that the defendant serve six (6) months in c onfineme nt with thir

ty da ys of contin

uous c onfinemen t followed by five months of work r elease and then supervised probation. In this ap pe al the defendant contendshe should h ave rec eived full probati on for the se offenses and he cites numerous alleged defic iencies in the trial court’s sentencing proc edur es. We find that in sentencing the defendant the trial court fa iled to make appropriate findings on the recor d and that there fore our

review o f the def

endant’ s sentenc e is de novo without a presumption of correctness. Nevertheless, we find that the record c ontains sufficient evidence from which this Court concludes that six (6) months confinement of the defendant is appropriate. However, we believe the entire confinement

should be served

on work release. We therefore AF FIRM the decision of the trial court with the modification that the entire period of incarcer ation be served on work release. Tenn. R. App.P. 3; Judg ment of t he Trial Court is Affirm ed as Modified.
J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID H. W ELLES and J OE G. R ILEY , JJ., joined. William L. Brown and Tra vis R. McDonough, Chattanooga, Tennessee, f or appel l ant, Gab or Palast i. Paul G. Summers, Attorney Gene ral & Repor

ter; Ang ele M. Greg ory , Assistan t Attorne y General ; Bill Cox, Distric t Attorne y General ; and Thoma s E . Kimball, Assistant District Attorney Gene ral for appellee, State of Tennessee.1 The defendant was original ly als o charged with D.U.I., but the St ate dis missed t hat char ge as part

of th e plea agree men t.

2 Th e victim s in the ca se sued M r. Pala sti for da mag es arising out of the incide nt. -2- OPINION Factual Backgr

ound
In September of 1999 the City of Chattanooga held a festival called Wine Over Water. T he defenda nt, his wife and some friends attended the festival. Whi le at the festival the defendant purchased

two gla sses for

$50.00. Th

is entitled h

e and his wife to sam

ple wine fro m 384 vendors. After sampling several of the offe red wines the defendant became intoxicated.
An acquaintance at the festival invited the defenda nt to sit on a golf car and rest. The cart startedand the defenda

nt, who did

not know ho w to operate the vehicle, ran the car t through three or four tab les injuring four

bys tanders . As a re sult of thisincident the defendant pled guilty to one count of v ehicula

r assaul t and thre e counts o f reckl ess enda ngerme nt. 1
At the or iginal s entencing hea ring on June 11, 2001 , the def endant te stified th at he is a Hungarian

immigrant who came to the United States in 1972. H e mo ved to Chattanooga in 1974 and in 1976 he went to work for Olan Mills. He mainta

ined that his actions were unintentional and that the incident would stay with hi m fina ncially and emotionally for the rest of his life. 2 He acknowledged that his actions were wr ong and he apologized to the victims who were injured. In addition

to the defe

ndant, Ms. Ine z Millwood, t he defe ndant’s s uperviso

r at Olan Mills, testified that the defendant was a good employ ee. He had worked at Olan Mills for over 25 y ears and had never be en a prob lem. Following this hearing the trial court sentenced the def endant to a termsof four y

ears. He was to serve 1 1 months, 29 days incar ceration with the remainder of his sentence on super vised probation. On June 26, 2001, the defendant filed a motion for the trial court to reconsider the sentence. He specifically a sked that the trial court drop any requirement of actual incarceration. On October 29, 2001, a hearing was held on this motion. At the October 29 hearing Kristie Jackson, one of the victims in the ca se, testified that she and her husband were working a booth a t the wine festival when she heard her husband s uddenly shout. When she turned she saw the defe ndant and the golf cart coming a t her. Ms. Jackson indicated that moments earlier she had observed the defendant start

the car t and plow

through some tables. She stated that the defendant was smiling the entire time. The defendant knocked down a friendof Ms. Jackson and pushed both her and the friend aga inst the side of a bridge. Ms. Jackson-3-

heard her che st pop. She was then dra

gged to the ce nter of th e bridg e becau se her shoe had be come attached to the cart’s axle. The defendant then knocked down two other festival goers on the other side of the bridge. Althou gh x-rays sho wed Ms. Jackson’s back was normal, she stated that as a result of her injuries she suffered five damage d disks in her ba ck, could no longe r drive w ithout pain

nor sit for extended periods. She had a great deal of diff iculty ge tting comfortable. Her business lost $1865 in merchandise and other damage. The defendant again testified in his own behalf. He stated that exce

pt for a p arking

ticket in 1975 or 1976, he had

never been in trouble. He denied that he was laug hing during the incident but was rather panicked when the cart be gan to move. He testified he could not remember w hat happened after the cart began to move. Mr. Palasti told the court tha t if forc ed to go

to jail, he would lose his job

and would

not be abl e to pay

damage s or resti

tution to the

victims. The defendant’s wife Suzanne Palasti, testified that the defendant is a g ood man, a good husband, and her sol e sour ce of support. She cannot drive nor operate off ice equipment. She indicate d that the

defenda nt had expr

essed g reat re morse ab out the inc ident. The defendant’s employ er, Olan Mills, II , testified that the defendant was an exemplary employee and an honest person. If the defendant were sent to jai l for more than three day s under company poli cy he woul d be fo rced to disch arge the defendant from employ ment. Mr. Mills offered to assist in

any way he could t

o help the defendant in abiding by any requir

ements of an alternative sentence. Following this hearing the trial court found that in order to avoid de

precia ting the seriousness of the offense and to provide an effective deterrence to others likely to commit sim

ilar off enses, the defendant should serve 30 days in a ctual continuous confinement, followed by five months of

work releas e and the remainder of the four year se ntence on supervised probation. From this sentence the defendant brings the instant appeal asking this Court to grant him full probation. Standard of Review When determining a def endan t’s specific sentence or the appropriate combination of sentencing alternatives that should be imposed on a defendant, a cou rt must con sid er a variety of factors including: evidence presented at the sentencing hearing; the presentence r eport; the principles of sentencing and arguments as to sente ncing alternatives; the nature and cha racteristics of the offense; statements made by the of fender; as well a s, evidence and information offered by the parties on the enhancement and

mitigating factors in Tenn. Code Ann. §§ 40-35-113 and 40-35-114. Tenn. Code Ann. § 40-35-210. When a court does consider each of the required f actors in det ermin ing a senten ce and amply

notes its f

indings o n the rec ord, rev iew of tha

t sentenc e is de novo with a presumption that the court’s determinations are correct. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).-4-

In addition, sentences involving confinement should be based o n three primary consider ations: 1) that c onfineme

nt is n ecessar y to protect society by restraining

a defendant who has a long h

istory of crimin al conduct; 2) that c onfineme nt is neces s ary to avoid depr eciating the seriousness of the offense or confinement is particularly suited to provide an effective de

terren ce to others; or 3) that measures less restrictive than confinement have f requently or

recently been applied unsuccessfully to the de

fendant. Tenn. Code Ann. § 40-35-103(1).
A defendant who is a standard offender c onvicted of a Class C, D, or E felony is presumed to be a favorabl e candidate for alternative sentencing including probation. Tenn. Code Ann. § 40-35- 102(6). However, the burden of establishing suitability for probation lies with the defendant. Tenn. Code Ann. § 40-35-303(b). On appeal, a defenda nt seeking full probation bears the burden o f showing that the se

ntence imposed is im

proper a nd that full probati on will be in the best interest s of both the defendant and the public. State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim App. 1995).
In t he instant case the defendant asserts that the trial cour t failed to make the required findi ngs of fact

on the re cord so a s to acco rd the se ntence in this cas e the pres umption of correctness prescribed

by Tennessee

Code Annotated section 40-35-401(d). The State concede s that the record is bereft of such findings, but maintains that the record is sufficient to uphold a sentence involving 30 days confine

ment. Given the state of the record we agree that we should revie w the sentence de novo on the re cord without the pr esumption

of corr ectness

. The defenda

nt is presu mptively entitled to some form of alternative sentencing. Tenn. Code Ann. § 40-35-102(6). However, the defendant still maintains the burdenof showin g his suit ability for full probation. Bingham , 9 10 S.W .2d at 456 . We are u npersua ded that f

ull proba tion is warranted in this case.
Due to his appa

rent e xtreme intoxication the defendant caused rather serious injuries to at least one of t he v ict im in th is cas e an d m in or i nj uri es t o ot her s. In addition, he caused at least two of the victims to suffer

financi al loss. Mo

reover , he plac ed a numbe r of peop le at great risk of injury throu gh his actions at what should have been a peaceful and safe community

event. We

agree with the trial judge that a de

nial of c omplete p

robation is neces sary

to avoid dep

reciating the se

riousnes s of the offenses. In addition, from this rec ord it appears that this cas e receiv ed extensi ve public ity in the community . Such a c onsidera tion is app ropriate when s endin g a deter rent m essage to potential future lawbreakers of

a similar nature that

such conduct will not be tolerated. See , Tenn. Code Ann. § 40-35-1 03(1)(B ); State v. Hooper , 29 S.W.2d 1, 11 (Tenn. 2001). However, the defe

ndant is in

otherwis e admirable person with an excellent work history and a great potential for

rehabilitation. He is 57 yea rs old, is partially disabled, has worked steadily with the sam e co mp any for o ver 26 ye ars and is th e so le s upp ort er o f hi s wi fe. It appears from the record, and the trial judge app arently believe s, that the

defenda nt is gen uinely remorse ful for h is actions

. Testimony

at the second sentencing hearing clearly e stablished that shoul d the defendant be required to miss more than three day s of work because of his incarcer ation he will lose his lon g tim e-5-

employ ment. Given, these factors we are of the opinion that the trial cour t’s requirement

of thirty da ys continuous confinement is not in the best interes ts of the defendant, the community, nor the victims, who presuma

bly want to be

paid the r estitution ordere d by

the trial court an d any

other ci vil damages they may

recover. Consequently , we believ e th e sentence should be modified to require th e original six months incarceration to be served entirely on work release followed by the period of supervis ed proba

tion orde red by the tr ial court. We

are hope ful that su ch a modif

ication w ill allow the defe

ndant to ma

intain his employment and fulfill his financial oblig ations while sending a messa ge to both he and the community that behavior suc h as that exhibited in this case will not be tr ea te d l ig ht ly. Ac co rd in gl y, the judgment of the trial court is affirmed as modified and the c ase is remanded to the Criminal Court of Hamilton County for entry of judgment in accordance with this opinion and the colle ction of c osts.

___________________________________ JERRY L. SMITH, JUDGE