# FILED

April 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE SEPTEMBER 1997 SESSION

STATE OF TENNESSEE ) ) NO. 03C01-9704-CR-00147 Appellee, ) ) WASHINGTON COUNTY v. ) ) HO N. LY NN W. B ROWN GRANT LEE PROVENCHER ) ) (Sentencing) Appellant ) )

For the Appellant For the Appellee Laura Rule Hendricks John Knox Walkup Eldridge, Irvine & Hendricks Attorney General & Repor ter 606 W. Main Street, Ste. 350 P.O. Box 84 Peter M. Coughlan Knoxville, TN. 37901-0084 Assistant Attorney Gener al 425 Fifth Avenue North Jeff C. Kelly 2nd Floor, Cordell Hul l Building Assistant Public Defender Nashville, TN. 37243-0493 1st Judicial District P.O. Box 996 David E. Crockett Johnson City, TN. 37605 District Attorney General Kent W. Garland Assistant District A

ttorney General 1st Judicial District Unicoi County Courthouse Erwin, TN. 37650

OPINION FILED:_______________________ AFFIRMED WILLIAM M. BARKER, JUDGE2 OPINION The appellant, Grant Lee Provenc her, appeals as of right the s entence he received following

a guilty plea in the Washington County Criminal Court.The appellant pled guilty to reckless homicide, a Class D felony, and was sentenced as a Range I standard offender to three (3) years in the W ashington County jail. He contend s on appe al that th e trial cou rt erred in denying hi s request f or altern ative sentencing. After a review of the rec ord, we affirm the judgment of the tr ial court. The facts of this case demonstrate once again how the mixing of alcohol with dangerous instrumentaliti es can result in senseles s tragedy. On Februar y 6, 1996, the appellant was drinking

alcoholic beverages

and socializing w

ith friends in his Johnson City apartment. Among thos e participating in the pa rty were the vi ctim, Jason McWatters, and his girlfriend, Summer P hillips. During that evening, the appellant entered his bedroom and brought out a .357 caliber hand gun. H e removed the magazine clip from the pis tol and allowed Ms. Phi llips to handle it. She poi nted it and proceeded to click the hammer as if to fire the weapon. When she returned the weapon to the appellant, he aimed it at Ms. Phillips and began cocking and depressing the hammer. Dur ing that time, the gun made a clicking noise but nev er fired. The victim told appellant not to point the gun at Ms. Phi llips; however, the appellant assured him that the g un was unloaded. Thereafter, the appellant aimed the gun directly at the v

ictim’s head and depressed the h ammer. The gun fired a bullet into the victim’s forehead, killing him instantl y. Although the appellant tried to help the victim, he panicked and fled fro m the apartment upon finding that the v ictim had no pulse. Before leaving, the appellant stated, “you guys don’t know me, you guys don’t know what happened, I’v e got to get out of here!” The appellant was indicted by the Washington County grand jury for the offense of reckless homicide. He enter ed a plea agreement whereby he pleaded3

guilty to reckles

s homicide and received a three (3) year sentence as a Range I standard offender. The trial court c onducted a sentencing hearing and ordered the appellant to serve his entire sentence in the Washington County jail. The appellant argues on appeal t hat the t rial court erred in de nying his re quest fo r alterna tive sentencing. He contends that he is a suitable candidate for probation or some other sentencing alternativ

e to incarceration. This issue is without merit. Whe n a defe ndant ch allenges the lengt h, range, or manne r of his se ntence, we must conduct a de novo review of the record

. SeeTenn. Code Ann. § 40-35-401(d) (Supp. 1 996). Th e senten ce impos ed by the t rial court is accomp anied by a presumption of correctness and the appealing party has the burden of showing that the sentence is improper. See Tenn. Code Ann. § 40-35-401 (Sentenci ng Commission Comments). How ever, the presumption of corr ectness is conditioned upon an affirmative showing in the record that the tri al court considered the sent encing principles and all rel evant facts and circumstances

. See State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). To determine the appropriate sentenc e, the trial court must cons ider the following: (1) evidence from the trial and sentencing hearing; (2) the presentence report; (3) the princi ples of sentencing and the arg uments concerning sentencing alternatives; (4) the

nature and characteristic s of the offense; (5) information offered by the State or the defendant concer ning enhancing or mitigating factors; and (6) the defendant’s statements in his ow n behalf concerning sentencing

. See Tenn. Code Ann. § 40-35-210(b); see also State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). In this case, the trial c

ourt considered the eviden ce from the sentencing hearing, the presentence report, and all relevant factors and circumsta nces before ordering the appellant to s erve three (3) year

s in the Washington County jail. We,1 The statutory presumption for a lternat ive sentenci ng is contai ned in Tennessee Code Annota ted sec tion 40-35 -102(5) , (6) (Sup p. 1996) . Section 4 0-35-10 2(5) pro vides tha t:

In recognition that state prison capacities and the funds to build and maintain them a re limited,convicted f

elons committing the most severe offenses, possessing cri minal histori es evincin g a clear di sregard for t he laws and morals of so ciety , and evinci ng failur e of past eff

orts at r ehabilitationshall be g iven fi rst pri ority regarding sen tencing involv ing incar

ceration. Under section 40-35-102(6), “ [a] defendant who does not fal l wit hin the par ameters of subdivisi on (5) and i s an especiall y mitiga ted or standar

d offender convi cted of a Class C, D, or E felo ny is presu med to be a fav orable ca ndidate fo r alternative s entenc ing options in the abs ence o f evidenc e to the c ontra ry.

4 therefore, review appel lant’s sentence with a p resumption of correctness. The trial court acknowl edged that the appellant was a presumable candidate for alternative sentencing

under Tennessee Code Annotated secti on 40-35-102. 1 The appellant pled guilty to reckless homicide, a C lass D felony, and he wa s sentenced as a Range I standard offender. However, the trial court found that th e statutory presumption was rebutted by evidence to the contrary. We agree. Guidance as to what constitutes “evidence to the contrary” is contained in Tennessee Code Annotated section 40-35- 103(1). That section prov ides that a sentence of confinement should be based upon w hether confinement is necessary to protect society or to avoid depreciating the seriousness of the offense, whether “confinement is particularl y suited to provide an effective deterrence to others likely to commit s imilar of fenses , whether “ measure s less rest rictive tha n confin ement ha ve frequently been applied unsuc cessfully to the defendant,” and w hether the defendant has a potential for rehabilita tion or treatment. See

Tenn. Code Ann. § 40-35-103(1), (5) (Supp. 1996). The trial court examined the above factors in determining that the appellant should serve his three (3) year sentence in confinement. From the appellan t’s testimony at the sentencing hearing, the trial court found that the appellant was so intoxicated on the night of the shooting that his memory had been disturbed. Furthermore, the appellant admit ted that since the time of the offense, he had repeatedly binged on drugs and alcohol to avoid dealing with the consequences of his actions. The trial court d etermined that although there w as no evidence that2 The trialcourt found t hat Ms. Phil lips was al so a victi m because the appellant had pointed the gun at he r bef ore h e sho t the vic tim.

3 The appellant

testi fied that

he had been fir

ed from one job and had qui t another wi thout not ice due to substance abuse and other person al probl ems. However, at t he time of the sent encing heari ng, he was working at a Red Lobste r restaura nt.

4 When the appellant fi rst test ified at the sentencing heari ng, he did not mention any re morse or sorrow for t he loss of l ife or t he sufferi ng of the vi ctim’s famil y. I t was not unt il aft er the test imony of the victim’s m other an d father th at the app ellant testified c oncern ing his rem orse. 5 confinement would provide deterrence, there was proof that the violent offense coupled with appellant’s intoxication presented a major public concern. Moreover, the trial court found that the offense involv ed multiple enhancement factors includ ing the

appellant’s cr

iminal histor

y, more than one

victi m, the use of a firearm, and no hesitation about committing a crime when the risk to human life was high. See Tenn. Code Ann. § 40-35-114 (1),(3),(9), & (10) (Supp. 1996). 2 From appellant’s presentence repor t, the trial court found that the appellant had two prior assault convictions for which he served prob ationary sentences. While servi ng probation for the second assault c onviction, the appellant w as held in contempt of court for failing to pay r estitution. The appellant’s social hist ory and present condition also influenced the trial court’s decision. The tri al court found that the appellant w as a high school dropout with a history of under

age drinking and drug

abuse. Although the appellant had received a G.E.D. and pl anned to attend college, he had demons trated an inability to maintain employment and to improve his life due to persisten t substance abuse problems. 3 Moreover, there was a question as to whether the appellant was truly remorseful for the reckless k illing of the victi m. As the trial court noted,the appellant testified tha t he felt sorrow an d regret for his ac tions on the nigh t of the shoot ing; however, he did not ex press those feelings until he was recalled to tes

tify by his trial counsel. 4 Furthermore, the appellant ad mitted that he had relied upon alc ohol and drugs to escape from the consequences of his actions. Base d upon that evidence6

and the appellant’s probation record for two previous violent offen ses, the trial court determined that appellant’s potential fo r rehabilitation was “not good.” From our de novo

review, we find that the trial court w as justified in denying

an alternative sentence. While not rely ing solely upon the v

iolent nature of the present offense, we conclude that the off ense combined with appellant’s history of substance abuse, intoxication, and pr evious violent offenses, r ebutted the presumption that he was a favor able can didate f or altern ative sent encing. T he appel lant has s erved two prior probationary s

entences, yet he has continued to mix alcohol and drugs with dangerous criminal acti vities. The evidence fails to demonstrate how a probationary sentence in this case would “subserve the ends of justice and the best inter est of both the public and the defendant.” See State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), per. app. denied

(Tenn. 1990). We, therefore, conclude that the appell ant has failed to carry his burden of show ing that his sentence w as improper. The judgment of the trial court i s affirmed.

___________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

_______________________ JOHN H. PEAY, JUDG E

_______________________ DAVID G. HAYES, JUDG E