# FILED

June 25, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1 998 SE SSION

STATE OF TENNESSEE , )

APPELLEE ) ) VS. ) C.C.A. No. 01C01-9707-CC-00252 ) LAWRENCE COUNTY ) Honorable Jam es Weatherford RODNEY J. D. SMITH )

APPELLANT. ) (SENTENCING)

FOR THE APPE

LLANT FOR THE APPELLEE Shara A. Flacy John Knox Walkup Public Defender Attorney General and Report er 22nd Judicial Dist

rict 425 Fi fth Avenu e, N. 128 N. S econd S t. Nashville, TN 37243 Pulaski, TN 38478 Daniel J. Runde Karen M. Yacuzzo Assistant Publi

c Defender Assistant Att orney General 22nd Judicial Dist

rict 425 Fi fth Avenu e, N. 128 N. S econd S t. Nashville, TN 378243 Pulaski, TN 38478 Mike Bott oms District Att

orney General P. O. Box 459 Lawrenceburg, TN 38464 James G . White Assistant Dist

rict Attor

ney General P. O. Box 459 Lawrenceburg, TN 38464

OPINION FILED: _______________________

AFFIRMED L. T. LAFFERTY,

SPECIAL JUDGE OPINI ON2 The defendan t presents an appeal as of righ t from the judgm ent of the trial court denying probation or

an alternati

ve sentence. On December 6, 1996, t he defendant entered a plea of nolo contendere in cause #15,529 to f acilita tion to commit murder second degree, agree

ing to a sentence of

eight (8) years; in cause #15,298, to the offense of ro bbery, agre eing to a sen tence of thre e (3) years c onsecutive to #15, 529 ; in cause #15, 299, in count s one and two to the offe nse of robbery, agr

eeing to a sentence of six (6) yea rs concurre ntly on eac h count; in c ause # 15 ,300, in cou nts one an d two to the offense of r

obbery, agreeing t

o a sentence of si

x (6) years concurr

ently on each count; and in cause #15, 301 to the offense of robbery, agreei

ng to a sentence of f

our (4) years consecutive to cau ses #15,529 and #15,298. The ag reed sentence w as a Range I, maximum of 15 years and it was understood t he defendant would seek probat ion or an alternativ e senten ce. As part of the plea

agreement, the Sta

te agreed to nolle prosequi causes #15,283 and #15 ,284, safe-cra cking and burglary th ird degree; # 15,331 m aking a false report to police; and #15, 364 burglary second degre e. After a review of t

he record and applic able law, we find t hat the trial court did not err in denyin g the de fendan t’s reque st for pro bation a nd/or a n alterna tive sen tence. The trial court ’s judgment is af firmed.

HISTORY The facts in this record are somewhat unusual in that the commission of these offenses occurred in 1988-89, and the conclusion was in 1997. The record establishes, originall y, the defendant

was accused in cause #15,297 of felony murder and armed robbery of Bartlett M arston on January 2 9, 1989, via a knife. The defendant’s brother, James E. Sm ith, Jr., and uncle, Michael M cConnell were indicted as co-defendan ts. In3 causes #15,298, #15, 299, #15,300 and #15,301, the defendant was accused of six counts of armed robbery involving six different victims between Januar y 22, 1989, and January 30, 1989. The defendant, al so, had been accused i n causes #15,283 and #15,284 with safecracking/burglary third,on January 17, 1989; #15, 331, making false re port on December 10, 1988; and #15,364, bur glary second on December 20, 1988. The reco rd reflects that th e defenda nt and his b rother, Jam es E. Sm ith, Jr., went to trial on indictment #15,297 on May 6, 1991,before the Honorable Will iam B. Cain, Crim inal Co urt for L awren ce Co unty. O n Nov embe r 20, 19 90, the c o-defe ndant, Michael M cConnell, had plead guilty to murder secon d degree, receiving a sen tence of 70 years. As part of

his plea agreement,

McConnell agreed to test ify in behalf

of the State against

both Smiths. McConnell, upon bei ng called as a witne ss, refused t o honor his plea agreement and r efused to test

ify against

the Smiths. In an out

of jury hearing, McConnell did testi

fy the Smiths were a part of the murder of Bartl

ett Marston. On May 8, Judg e Cain , after a co nversa tion wi th the as sistant D istrict Att orney G eneral, sua spon te granted a mistrial. At re-t rial, t he defendant fil

ed a motion to dismiss on t he grounds of double jeopar dy. Special Judge All

en Cornelius denied t

he motion and permitted an int

erlocutory appeal

to the Court of Cri

minal Appeals. In State v. S mith, 871 S.W.2d 677 (Tenn. 1994), the Supr eme Court denied the motion and re manded the case fo r a new trial. The defend ant wa s then re indicted in #15,5 29 for fe lony m urder, first degree murder, and armed robbery of Marston. The armed robbery accusations were k nown in Law rence C ounty a s the “A mish ro bberies .” The record before us does not contain a t

ranscript of

the stipul ated facts ent

ered at the plea proceedings as to t he exact involvement of the defendant in t

hese criminal offenses. The Sta

te argues that

since the defendant

failed to i

nclude a transcr

ipt of the plea hearing,this Court shoul d not consider t

he merits of the def

endant’s clai

m. The4 defendant counters tha t the entry of a plea of nolo contendere does not require t he trial court to accept

a factual basi s for the plea, citing Raybin, Tennessee Criminal Practice and Procedure §§ 22.14, 22.102. We agree with the defendant that sufficient facts were d evelop ed at the senten cing he aring fo r this Co urt to co nduct a proper review

. The State had am ple oppor tunity to sub mit this transc ript. SENTENCING HEARI NG The defe ndant sub mitted an a rray of imp ressive evid ence to assis t the trial court in its det ermination of t

he request for pr

obation and/or an al

ternative s entence. Testi fying for the defendant

were his wife, Diana Smit h and his employer, Ste ven Cheatwood. The defendant also t

estified. Several cert

ificates of awards, incl

uding a G.E.D. certi

ficate and five lett

ers in support

of the defendant’ s request were admitt ed at the heari

ng. A summary to the evidence reveals that the defenda

nt was released on bai

l in the amount of $5 0,000 on June 1 0, 1991, while aw aiting a re-trial. Prior to the defendant’s arrest, he had been trained as a

Geriatric Nursi

ng Assistant and was employed at the Lawrenceburg Manor Nursing Home. The defendant was arrest ed February 2, 1989, f

or these offenses . While in the Lawrence County Ja il, the def

endant achieved the status of

trustee a nd stud ied cou rses for o btaining a G.E.D ., which he obta ined up on relea se. Upon release, the de

fendant found sporadi

c employment until November, 1991. Duri ng September, 199 1, the defendant wa s married and sub sequently divorced. In N ovember the defendant found employment at the Lawrencebu rg Manor Nursing Hom e as a nurse technician where he met hi s wife, Diana Smith. Mrs. Smith testified that she worked with the defendant on and off for four years at the nursi

ng home. They married on October 7, 1994. Mrs. Smith had two children, ages seven and eight, who treated the defendant as their father. Mrs. Smith describes the defend ant’s relationsh ip with her c hildren as v ery good . He helps w ith their5 homework, assists i

n getting them ready f

or school and is supportive of her a nd the children. The def

endant has establ

ished a good relat

ionship with Mrs. Smit

h’s family by putt ing a ro of on h er aunt’ s hom e and h elping a family mem ber m ove to T enness ee. Mrs. Smith describes he r husband as a good worker, who bri ngs his paycheck home and does not drink or us e illegal drugs. As to the murder c harge, Mrs. Smith te stified that the defendant denies any involvement, but admits to the “Amish robberies” as stupid and he “feel s terribl e about it.”

In conclusion,Mrs. Smith loves her husband and is sure he will

abide by any conditions of probation or an alternati

ve sentence imposed by the Co urt. The defendant’s employer, Mr. Steven Cheatwood, test ified he hir

ed the defendant in 1995 as a br icklayer. Mr. Cheat

wood described the defendant as being a very good worker, dependable , gets along well with his fell

ow employees and has no drinking or drug pr

oblems. At the ti

me of the hearing the def endant was making $9.00/hour and if

he remained employed, the def endant could expect $14. 00/hour and possibly be made a foreman. Mr. Cheat wood testified he would continue to employ t he defendant if Mr. Smit

h were placed on work release

. In his test

imony, the defendant de scribed his f amily background, educat ional progress and work hist

ory until t

hese charges. The defe ndant corroborat

ed the testimony of his

wife and employer about his family and employment histor y. The defendan t tendered to the court the results of a po lygraph ex amination in regard to h is alleged inv olveme nt in the M arston mu rder. It was a lleged the res ults would corrobora te or support the defend ant’s claim of innocen ce. The trial court permitted, ove r the State’s objection, a p roffer, but ruled the results w ould not b e considere d by the C ourt in its determin ation. As to th e Marsto n murd er the defen dant cons istently main tained his innocence and entered his nolo ple a in ord er t o br ing“so me re sol

ution and so me6 resolvement to t

he case for all

parties concer

ned, including t

he victim’s famil

y.” In open court, the def

endant advised the Marst on family, “I t

ruly feel sor

ry for you and I hope that this will bring some kind of resolution t

o you, and I’m truly s orry.” As to the “Amish robberies,” t

he defendant admitte

d his involvement at

tributi ng the reason being as “riding around,

drinking, and smoking dope . .. I was quit e young, dumb, and stupid and I’m here to take my respons ibilit y for that. ” There was littl e or no cross-examinat

ion by the State of the defen dant. Mr. S tev en Lo ng, gra

nds on of the vic ti m Bart

let t Marston, t

he mur der vic ti m, testified it was n ot necessar y for the def endant to k ill his grandfath er and that th ey could have done something else besides stabbing hi m sixteen times. The r

ecord establi shed that the victim was quite elderly, in po or health, an d had lim ited hearing . The Co urt infers M r. Long was in oppos ition to a ny altern ative relie f for the d efenda nt. Also , Mrs. Virginia Long, daught er of the vict

im, testif ied about her fat

her’s conditi

on and age of eighty-ei

ght years. Mrs. Long was in opposition to any pr obation for t

he defendan t. The trial court

, in its opi

nion, set out

several reasons

for the denial

of probation and an alter native sente nce. The tria l court com mented on the defe ndant’s ach ievemen ts upon releas e fr

om ja il , hi s st eady empl oymen

t, car e of hisfami ly,and no le gal

pro blems other than the s eriousness of t hese multiple violent offenses . The trial court stat

ed: Like I say, I th ink the State has show n mercy and I think th at this court has shown mercy in accept ing the fif

teen year sentenc e. But when I look at this

record and every cri

me that I’m dealing wit h here is a cri

me of vio lence against

a per son , and I h ave t

o ta ke intoconside

rat ion the vic ti ms here wh ich, as I me ntioned, w as an eighty -eight year o ld man w ho was in poor physical condi

tion and couldn’t

move around without a walker, a nd then I believe e

very other person t

hat was a victim was Mennonite,which as I mentioned is very pas sive people who don’t re sist. They’l l give you whatever they’ve got,

but they won’t resi st. They won’t commit viol ence. So unde r these circum stances, I cou ld not feel satisfie d with this7 fifteen year

sentence, which I f

eel shows mercy on the part t o the state and the part of t

his court for

accepting it, I feel t

hat Mr. Smith has recei ved an abundance of mercy in this case. I’m going to impose the se ntence agreed upon between t he State and the defendant,which is a fift een year sentence and t hat will be to t

he Departmen t of Correction[].

SENTENCING CONS IDERATIONS When a defendant complains of his or her sentence,we must conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). Ther efore, the bur den of s howin g that the senten ce is im proper is upon the app ealing p arty. Id. The presumption that det erminations made by the t rial court are correct i s conditioned upon the affirmati

ve showing in the recor d that the tr

ial court considered the sent encing princip les and all releva nt facts a nd circu mstan ces. State v. Ashby , 823 S.W.2d 166 (Tenn. 19 91); State v. S mith, 898 S.W.2d 742 (Tenn. C rim. App. 1994 ). If appellate review reflects t he trial court properly considered all relevant facts and i ts f ind ingof f act s ar e ade quat ely sup por ted by t he r ecor d, t hisCour t mus t af fir m the sentences,“even if we would have prefer red a differe

nt result. ” State v. F letcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper deter

mination of an ap propria te senten ce, the tria l court m ust con sider (1) the evid ence, if a ny, received at the plea of guilty or in these f acts nolo contendere and the sentencing hearing; (2) the pre-sentence report; ( 3) the principles of sentencing and arguments as to sentenci

ng alternati

ves; (4) the nat

ure and character

istics of the criminal conduct involved; (5)evidence and informati on offered by the par

ties on enhancement and mitigating factors; (6) any statem ents the defendant w ishes to make in the d efendant’s behalf about the s entencing; and (7) the potentia

l for rehabil

itation or treatment. Tenn. Code A nn. §§ 40 -35-102, -1 03, and -21 0 (a), (b) (199 7); State v. Holland , 860 S.W.2d 53 (Tenn. Crim . App. 1993).8 In this case the trial court wa s required to consider an application fo r full probation or an alternative sen tence, such as work release, split confinement or weekends i

n cus tody . Bas ed on

the d eci sio n of t

he tr ial judg e to d

eny a ny relief we conduct o ur review with the pre sumption that the trial judg e was co rrect.

PROBATION/

ALTERNATIVE S ENTENCE First, we will

address the denia

l of full pr

obation. Since t

he defendant enter

ed nolo pleas to the re duced of fenses of ro bbery, w hich are C lass C felon ies, the defen dant is presumed to be a favor able candidate f

or probation,in the absence of evi dence to the contrary. Tenn. Code Ann. § 40-35-102(6). In State v. B ingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), t his Court cit

ed four factors

which, although “not

controlli ng the discret

ion of the sent

encing court” shoul

d be considered in det

ermining the appropriatenes s of probation:

(1) The nature and char acterist ics of the cri

me, under Tenn. Code Ann. § 40-35 -210 (b)(4) (1990); (2) The defendant’s

potential f

or rehabili

tation under Tenn. Code Ann. § 40-35 -103(5) (1990); (3) Whether full probation would “unduly depreciate the seriousness of the offense, ” under Tenn. Code Ann. § 40-35-103(1)( B) (1990); and (4) Whether a sentence of full probat

ion would “provide an eff ective deterrent” under Ten n. Code An n. § 40-35-103(1)(B ) (1990). As to the defenda nt’s plea of nolo contendere to the offens e of facilitation to commit murder second degree, which i s a Class B felony, t he defendant is not

entitled to the presumption t

o be a favorable candidate for alt ernative sent

ence. Thus the burden is on the defendant to estab lish reasonable ground s for relief. In arrivin g at its de cision, th e trial cou rt consid ered the require ments of Ten n. Code An n. § 40-35-103(19 90): (1) Sentences invol

ving confinement should be based on the foll owing9 considerations: (A) Confinement is necess ary to protect society by rest

raining the defendan t who ha s a long histo ry of crimin al conduc t; (B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is part icularly suited to provide an effective deterrence to ot

hers likel y to commit similar of

fenses; or (C) Measures less restricti ve than confinement have f requently or recently been a pplied u nsucce ssfully to the defe ndant[ .] The trial court

in its anal

ysis commented on Tenn. Code Ann. § 40-35-103, subsections (

A) and (C) and, more particularly, t he defendant’s l ack of trouble wit h the law sin ce relea se on b ail, fam ily relatio nships , and ste ady em ploym ent. Als o, Ten n. Code Ann. § 40-35-103(C) was not applicable since the defendant had not been on prior restrictive c onfinem ent. It is obviou s that the trial cou rt found “th at confinem ent was necessary to avoid de preciating t

he seriousness of

the offense” and bel

ieved the violent natur

e and numerous offenses cal led for incar

ceration. The defendan t argues that the trial court utilized deterrence as an in valid factor to deny alternative relief because there was no affir mative proof that these offenses would a ct as a deterre nt to like-min ded perso ns in Law rence Co unty. The trial court did not mention the word deterrence in its ruling b ut was referring to the first part of Tenn. Code Ann. § 40-35 -130(B). This Court has held i

t was proper for t

rial courts to deny full pr obation because of the nature and/or seriousness of offenses:

In order to deny an al

ternative s entence based on the se riousness of the offense,“the circumstances of the offenses

as committed must be especially vi

olent, horr

ifying, shocki

ng, reprehensi

ve, offensive , or otherwise of an exces sive or exaggerat ed degree,” and the nat

ure of the offense must outweigh al l factors f

avoring a sentence ot

her than confinem ent. Bingh am, 910 S.W.2d at 454 (quoting State v. Hartley , 818 S .W.2d 370 (T enn. C rim.10 App. 19 91)); Zeolia, supra at 462. The limited facts surroun ding the death of B artlett Marston, an eighty-eight-yea rold man in very poor healt h, stabbed 16 ti

mes without justi

fication,and with less tha n $100 s tolen fro m him , could v ery eas ily fall w ithin the descrip tive term s, supra. Also, the trial c ourt can co nsider that the se crimes in volved vio lence again st six different indiv iduals with d eadly we apons, and one involv ed the dea th of an elde rly person, combin ed with intoxication and abuse of drugs, in determ ining whether probat ion or a n alterna tive sen tence is a pprop riate. State v. B utler, 880 S.W.2d 395, (Tenn. C rim. App . 1994); State v. Gennoe , 851 S.W.2d 8 33 (Tenn. Crim . App. 1992); State v. H ollingsw orth, 647 S.W.2d 937 (Tenn. 198 3).11 In conclusion,we find the tri al court did not abuse its dis cretion in denyi ng an alternative sen tence to the d efendant a nd affirm th e trial court’s jud gment.

_________________________ L. T. Lafferty,

Special Judge CONCUR :

_____________________________ Gary R. Wade, Presiding Judge

_____________________________ Thomas Woodall, Judge