FILED

June 25, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL 1998 SESSION

STATE OF TENNESSEE ,

 )

APPELLEE )

 )

VS. ) C.C.A. No. 01C01-9707-CC-00252

 ) LAWRENCE COUNTY

 ) Honorable James Weatherford

RODNEY J. D. SMITH )

APPELLANT. ) (SENTENCING)

FOR THE APPELLANT FOR THE APPELLEE

Shara A. Flacy John Knox Walkup

Public Defender Attorney General and Reporter

22nd Judicial District 425 Fifth Avenue, N.

128 N. Second St. Nashville, TN 37243

Pulaski, TN 38478

Daniel J. Runde Karen M. Yacuzzo

Assistant Public Defender Assistant Attorney General

22nd Judicial District 425 Fifth Avenue, N.

128 N. Second St. Nashville, TN 378243

Pulaski, TN 38478

Mike Bottoms

District Attorney General

P. O. Box 459 

Lawrenceburg, TN 38464

James G. White

Assistant District Attorney General

P. O. Box 459

Lawrenceburg, TN 38464

OPINION FILED: _______________________

AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE

OPINION
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The defendant presents an appeal as of right from the judgment of the trial court

denying probation or an alternative sentence. On December 6, 1996, the defendant

entered a plea of nolo contendere in cause #15,529 to facilitation to commit murder

second degree, agreeing to a sentence of eight (8) years; in cause #15, 298, to the 

offense of robbery, agre eing to a sentence of thre e (3) years consecutive to #15, 529; in

cause #15, 299, in counts one and two to the offense of robbery, agreeing to a sentence 

of six (6) yea rs concurrently on each count; in c ause # 15,300, in counts one and two to

the offense of robbery, agreeing to a sentence of six (6) years concurrently on each 

count; and in cause #15,301 to the offense of robbery, agreeing to a sentence of four (4)

years consecutive to causes #15,529 and #15,298. The agreed sentence was a Range I,

maximum of 15 years and it was understood the defendant would seek probation or an

alternative sentence. 

As part of the plea agreement, the State agreed to nolle prosequi causes #15,283

and #15,284, safe-cra cking and burglary third degree; #15,331 making a false report to

police; and #15,364 burglary second degree.

After a review of the record and applicable law, we find that the trial court did 

not err in denying the de fendant’s reque st for probation and/or an alterna tive sentence. 

The trial court’s judgment is affirmed.

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,

originally, the defendant was accused in cause #15,297 of felony murder and armed

robbery of Bartlett Marston on January 29, 1989, via a knife. The defendant’s brother,

James E. Smith, Jr., and uncle, Michael McConnell were indicted as co-defendants. In
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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 January 22, 1989, and January 30,

1989. The defendant, also, had been accused in causes #15,283 and #15,284 with safecracking/burglary third, on January 17, 1989; #15,331, making false report on December

10, 1988; and #15,364, burglary second on December 20, 1988.

The record reflects that the defendant and his brother, James E. Smith, Jr., went 

to trial on indictment #15,297 on May 6, 1991, before the Honorable William B. Cain,

Criminal Court for Lawrence County. On Novembe r 20, 1990, the co-defendant, 

Michael McConnell, had plead guilty to murder second degree, receiving a sentence of 

70 years. As part of his plea agreement, McConnell agreed to testify in behalf of the 

State against both Smiths. McConnell, upon being called as a witness, refused to honor

his plea agreement and refused to testify against the Smiths. In an out of jury hearing,

McConnell did testify the Smiths were a part of the murder of Bartlett Marston. On 

May 8, Judge Cain, after a conversation with the assistant District Attorney General, 

sua sponte granted a mistrial. At re-trial, the defendant filed a motion to dismiss on the

grounds of double jeopardy. Special Judge Allen Cornelius denied the motion and

permitted an interlocutory appeal to the Court of Criminal Appeals. In State v. Smith, 

871 S.W.2d 677 (Tenn. 1994), the Supreme Court denied the motion and remanded the

case for a new trial. The defendant wa s then re indicted in #15,529 for fe lony murder, 

first degree murder, and armed robbery of Marston. The armed robbery accusations 

were known in Lawrence County a s the “Amish robberies.”

The record before us does not contain a transcript of the stipulated facts entered 

at the plea proceedings as to the exact involvement of the defendant in these criminal

offenses. The State argues that since the defendant failed to include a transcript of the

plea hearing, this Court should not consider the merits of the defendant’s claim. The
4

defendant counters tha t the entry of a plea of nolo contendere does not require the trial

court to accept a factual basis for the plea, citing Raybin, Tennessee Criminal Practice 

and Procedure §§ 22.14, 22.102. We agree with the defendant that sufficient facts 

were developed at the sentencing he aring for this Court to conduct a proper review. 

The State had ample opportunity to submit this transc ript.

SENTENCING HEARING

The defendant submitted an a rray of impressive evidence to assist the trial court 

in its determination of the request for probation and/or an alternative sentence. Testifying

for the defendant were his wife, Diana Smith and his employer, Steven Cheatwood. The

defendant also testified. Several certificates of awards, including a G.E.D. certificate 

and five letters in support of the defendant’s request were admitted at the hearing.

A summary to the evidence reveals that the defendant was released on bail in the

amount of $50,000 on June 10, 1991, while awaiting a re-trial. Prior to the defendant’s

arrest, he had been trained as a Geriatric Nursing Assistant and was employed at the

Lawrenceburg Manor Nursing Home. The defendant was arrested February 2, 1989, for

these offenses. While in the Lawrence County Jail, the defendant achieved the status of

trustee and studied courses for obtaining a G.E.D., which he obta ined upon relea se. 

Upon release, the defendant found sporadic employment until November, 1991. During

September, 1991, the defendant wa s married and subsequently divorced. In November 

the defendant found employment at the Lawrenceburg Manor Nursing Home as a nurse

technician where he met his wife, Diana Smith.

Mrs. Smith testified that she worked with the defendant on and off for four years 

at the nursing 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 defendant’s relationship with her children as very good. He helps with their
5

homework, assists in getting them ready for school and is supportive of her and the

children. The defendant has established a good relationship with Mrs. Smith’s family 

by putting a roof on her aunt’s home and helping a family member move to Tenness ee. 

Mrs. Smith describes her husband as a good worker, who brings his paycheck home 

and does not drink or use illegal drugs. As to the murder charge, Mrs. Smith testified 

that the defendant denies any involvement, but admits to the “Amish robberies” as 

stupid and he “feels terrible about it.” In conclusion, Mrs. Smith loves her husband 

and is sure he will abide by any conditions of probation or an alternative sentence 

imposed by the Court.

The defendant’s employer, Mr. Steven Cheatwood, testified he hired the 

defendant in 1995 as a bricklayer. Mr. Cheatwood described the defendant as being 

a very good worker, dependable, gets along well with his fellow employees and has no

drinking or drug problems. At the time of the hearing the defendant was making

$9.00/hour and if he remained employed, the defendant could expect $14.00/hour and

possibly be made a foreman. Mr. Cheatwood testified he would continue to employ the

defendant if Mr. Smith were placed on work release.

In his testimony, the defendant described his family background, educational

progress and work history until these charges. The defendant corroborated the 

testimony of his wife and employer about his family and employment history. The

defendant tendered to the court the results of a polygraph examination in regard to his

alleged involvement in the Marston murder. It was alleged the results would corrobora te

or support the defendant’s claim of innocence. The trial court permitted, ove r the State’s

objection, a proffer, but ruled the results would not be considered by the Court in its

determination. As to the Marston murder the defendant consistently maintained his

innocence and entered his nolo plea in order to bring “some resolution and some
6

resolvement to the case for all parties concerned, including the victim’s family.” In open

court, the defendant advised the Marston family, “I truly feel sorry for you and I hope 

that this will bring some kind of resolution to you, and I’m truly sorry.” As to the 

“Amish robberies,” the defendant admitted his involvement attributing the reason being 

as “riding around, drinking, and smoking dope ... I was quite young, dumb, and stupid 

and I’m here to take my responsibility for that.” There was little or no cross-examination

by the State of the defendant.

Mr. Steven Long, grandson of the victim Bartlett Marston, the murder victim,

testified it was not necessary for the defendant to kill his grandfather and that they could

have done something else besides stabbing him sixteen times. The record established 

that the victim was quite elderly, in poor health, and had limited hearing. The Court 

infers Mr. Long was in opposition to any alternative relie f for the defendant. Also, 

Mrs. Virginia Long, daughter of the victim, testified about her father’s condition and 

age of eighty-eight years. Mrs. Long was in opposition to any probation for the 

defendant.

The trial court, in its opinion, set out several reasons for the denial of probation 

and an alternative sentence. The tria l court commented on the defendant’s achievements

upon release from jail, his steady employment, care of his family, and no legal problems

other than the seriousness of these multiple violent offenses. The trial court stated:

Like I say, I think the State has shown mercy and I think that this

court has shown mercy in accepting the fifteen year sentence. But when I

look at this record and every crime that I’m dealing with here is a crime of

violence against a person, and I have to take into consideration the victims

here which, as I mentioned, was an eighty-eight year old man who was in

poor physical condition and couldn’t move around without a walker, and

then I believe every other person that was a victim was Mennonite, which as

I mentioned is very passive people who don’t resist. They’ll give you

whatever they’ve got, but they won’t resist. They won’t commit violence.

So unde r these circumstances, I could not feel satisfied with this
7

fifteen year sentence, which I feel shows mercy on the part to the state and

the part of this court for accepting it, I feel that Mr. Smith has received an

abundance of mercy in this case.

I’m going to impose the sentence agreed upon between the State and

the defendant, which is a fifteen year sentence and that will be to the

Department of Correction[].

SENTENCING CONSIDERATIONS

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). Therefore,

the burden of showing that the sentence is improper is upon the appealing party. Id. 

The presumption that determinations made by the trial court are correct 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 

(Tenn. 1991); State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App. 1994).

If appellate review reflects the trial court properly considered all relevant facts 

and its finding of facts are adequately supported by the record, this Court must affirm 

the sentences, “even if we would have preferred a different result.” State v. Fletcher, 

805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination 

of an appropria te sentence, the tria l court must consider (1) the evidence, if any, 

received at the plea of guilty or in these facts nolo contendere and the sentencing 

hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments 

as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct

involved; (5) evidence and information offered by the parties on enhancement and

mitigating factors; (6) any statements the defendant wishes to make in the defendant’s

behalf about the sentencing; and (7) the potential for rehabilitation or treatment. Tenn.

Code Ann. §§ 40-35-102, -103, and -210 (a), (b) (1997); 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 for full 

probation or an alternative sentence, such as work release, split confinement or 

weekends in custody. Based on the decision of the trial judge to deny any relief we

conduct our review with the pre sumption that the trial judge was correct.

PROBATION/ALTERNATIVE SENTENCE

First, we will address the denial of full probation. Since the defendant entered 

nolo pleas to the reduced offenses of robbery, which are Class C felonies, the defendant 

is presumed to be a favorable candidate for probation, in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6). In State v. Bingham, 910 S.W.2d 448, 456

(Tenn. Crim. App. 1995), this Court cited four factors which, although “not controlling 

the discretion of the sentencing court” should be considered in determining the

appropriateness of probation:

(1) The nature and characteristics of the crime, under Tenn. Code

Ann. § 40-35-210 (b)(4) (1990);

(2) The defendant’s potential for rehabilitation 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 probation would “provide an effective

deterrent” under Tenn. Code Ann. § 40-35-103(1)(B) (1990).

As to the defendant’s plea of nolo contendere to the offens e of facilitation to

commit murder second degree, which is a Class B felony, the defendant is not entitled 

to the presumption to be a favorable candidate for alternative sentence. Thus the burden 

is on the defendant to establish reasonable grounds for relief.

In arriving at its decision, the trial court considered the requirements of Tenn. 

Code Ann. § 40-35-103(1990):

(1) Sentences involving confinement should be based on the following
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considerations:

(A) Confinement is necessary to protect society by restraining the

defendant who has a long history of criminal conduc t;

(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 unsucce ssfully to the defendant[.]

The trial court in its analysis commented on Tenn. Code Ann. § 40-35-103,

subsections (A) and (C) and, more particularly, the defendant’s lack of trouble with the

law since release on bail, family relationships, and steady employment. Also, Tenn. 

Code Ann. § 40-35-103(C) was not applicable since the defendant had not been on 

prior restrictive confinement. It is obvious that the trial court found “that confinement 

was necessary to avoid depreciating the seriousness of the offense” and believed the

violent nature and numerous offenses called for incarceration.

The defendant argues that the trial court utilized deterrence as an invalid factor 

to deny alternative relief because there was no affirmative proof that these offenses 

would act as a deterrent to like-minded persons in Lawrence County. The trial court 

did not mention the word deterrence in its ruling but was referring to the first part of 

Tenn. Code Ann. § 40-35-130(B).

This Court has held it was proper for trial courts to deny full probation because 

of the nature and/or seriousness of offenses:

In order to deny an alternative sentence based on the seriousness of

the offense, “the circumstances of the offenses as committed must be

especially violent, horrifying, shocking, reprehensive, offensive, or

otherwise of an excessive or exaggerated degree,” and the nature of the

offense must outweigh all factors favoring a sentence other than

confinement.

Bingham, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S.W.2d 370 (Tenn. Crim. 
10

App. 1991)); Zeolia, supra at 462.

The limited facts surrounding the death of Bartlett Marston, an eighty-eight-yea rold man in very poor health, stabbed 16 times without justification, and with less than

$100 stolen from him, could very easily fall within the descriptive terms, supra.

Also, the trial court can consider that the se crimes involved violence against six

different individuals with deadly we apons, and one involved the dea th of an elde rly

person, combined with intoxication and abuse of drugs, in determining whether 

probation or an alterna tive sentence is appropriate. State v. Butler, 880 S.W.2d 395,

(Tenn. Crim. App. 1994); State v. Gennoe, 851 S.W.2d 833 (Tenn. Crim. App. 1992);

State v. Hollingsworth, 647 S.W.2d 937 (Tenn. 1983).
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In conclusion, we find the trial court did not abuse its discretion in denying an

alternative sentence to the defendant and affirm the trial court’s judgment.

_________________________

L. T. Lafferty, Special Judge

CONCUR:

_____________________________

Gary R. Wade, Presiding Judge

_____________________________

Thomas Woodall, Judge