### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs S eptember 27, 2000

STATE OF TENNESSEE v. FRANKIE LEE LUNSFORD
Direct Appeal from the Criminal Court for Sullivan County Nos. S42,802 & S42,923 R. Jerry Beck, Judge

No. E2000-00642-CCA-R3-CD December 6, 2000

The defendant appe

als from his senten

ces imposed in

the Sullivan County Criminal Court for three counts of contributing to the unruliness of a minor, a Class A misdemeanor; one count of inhaling paint, a Class A misdemeanor; one count of public intoxication, a Class C misdemeanor; one count of giving paint to another for unlawful purposes, a Class E felony; and one count of possession of drug paraphernalia, a Class A misdemeanor. The trial court imposed a sentence of two years on the felony conviction to be se

rved in the Depar

tment of C orrection, with the misdemeanor sentences running concurrently

to the felony and to each other. In this direct appeal, the defendant challenges the denial of prob

ation or alterna

tive sentencing . We affirm the judg ment of the trial c

ourt. Tenn. R. App. 3; Judgment of the Criminal Court is Affirmed

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J ERRY L. S MITH , JJ., joined. Terry L. Jordan, Assis

tant Public

Defender, Blountville, Tennessee, for the appellant, Frankie Lee Lunsford.

Paul G. Summers, Attorney General and Rep or ter, Clinton J. Morgan, Nashville, Tennessee, H. Greeley Wells, Jr., District Attorney General, Mary Katharine Harvey , Assistant District Attorney General, James Goodwin, Assist ant District Attorn

ey Genera l, for the appelle

e, State of Tennessee.
OPINION

Frankie Lee Lunsford stands convicted upon his

guilty and/or Alford

pleas to three counts of contributing t

o the unruliness of

two minors, a Class A misdemeanor, possession of drug paraphernalia, a Class A misdemeanor, inhaling paint, a Class A misdemeano

r, public intoxication,
a Class C misdemeanor, andgiving paint to another for unlawful purposes, a Class E felony. See Tenn. Code Ann. § 37-1-156 (1997) (contributing to unruliness of minor); Tenn. Code Ann. § 39-1 In accordan ce with this court’s po licy, the minor victim will be referred to on ly by her initials.
-2- 17-425 (1997) (possession drug paraphernalia); Tenn. Code Ann. § 39-17-422(a) (1997) (inhaling paint); Tenn. Code Ann. § 39-17-310 (1997) (public intoxication); Tenn. Code Ann. § 39-17-422(c) (1997) (giving paint to another). Having receiv ed an effective

, incarcerativ

e sentence of tw

o years, the defendant appeals. After reviewing the record, the briefs of the parties, and the applicable law, we affirm th e trial cour t’s denial of probati on or other a lternativ e sentencin g.

Frankie Lee Lunsford, 24 years old at the time of sentenc

ing on the instant c

harges, droppedout o f Sullivan Co unty East High School when he was seventeen y ears old and after completing the ninth grade. Th ree years later , in 1996, he was arrested for and convicted of disorderly conduct and resi

sting arrest; he

received a susp

ended sentence

on those conviction

s. Later, in the same year, the defendant was involved in domestic violence conce rning his wife, which resulted in a conviction for simple assault; again, he received a suspended sentence, and he was ordered to comple

te domestic violenc

e counseling an

d to have no contac

t with the victim.

In the following year, 1997, the defendant was arre sted for felony child abu se. H e had fractured the skull of his son, who was eight months old. He was convicted and sentenced as a Range I standard offender to three years incarc eration on that charge. He appealed the denial of probation and was released on an appeal bond. While released pending his appeal, the defendant was arrested in 1998 on the charge of public intoxication. He was convicted and fined, and he received a suspended, thirty-day sentence

.

The events leading

to the sentencing

appeal before

our court also

occurred while the defendant was on the appeal bond from his child- abuse sente nce. The defendant developed a romantic relationship with a fe male minor, LF, who was six years his junior. 1 The minor’s parents didnot approve of the relationship, and they repeatedly told their da ughter not to be in the company of the defendant. The parents also confronted the defendant and demanded that he stay away from their daughter. Nonetheless, on April 24, 1999, the defendant accompanied LF to her high school promas her “date.” LF’s mother learned of the prom date when she found photographs of her daughter and the defendant that were taken in a friend’s backy ard and that

showed them together and dressedin formal attire. Less than a mon th later, on May

15, 1999, LF f

ailed to report to

work. She
was missing for two days, during which time she and the defendant were together. LF finally called her parents when she learned that the sheriff’s department was looking for her

. The defendant’s involvement with LF resulted in two counts of contributing to the unruliness of a minor. The defendant subsequently entered an Alford plea to these cha

rges.
The other charges were the product of an earlier incident on February 11, 1999. That day, the Bristol police

responded to a re

port of an open fir

e at Kentucky

Avenue in

Sul liv an C oun ty. When o fficers arrived at the scene, they discovered the defe ndant and a juvenile male, BS. The defendant and the juvenile were inhaling paint through plastic bags. A can of paint and a metal pipe-3-

were nearby. Th

e minor gave a s

tatement that the def

endant purchased the paint, inhaled it, and provided it to him. As a result, the de fendant was cha

rged with public intoxication, i

nhaling paint, possession of drug paraphernalia, contributing to the unruliness of the minor, and giving paint to the min or f or u nla wfu l pu rpo ses . To the se ch arge s, t he d efen dan t en ter ed p lea s of guil ty.

The defendant pleaded pursuant to a plea agreement with the state. At the time the defendant entered his pleas, the trial court imposed the agreed upon sentences but continu ed the matter for subsequent consideration of alternative sentencing. For each o f the five , Class A misdemeanors,

the trial court se

ntenced the def

endant to eleven months and 29 days. On the Class C misdemeanor, the trial court imposed a sentence of 30 da ys. Finally, on the Class E felony of giving paint to the minor for unlawful purposes, the trial court sentenced the de

fendant to two years,
as a Range I, standard

offender, with a 30 percent release eligibility date . The trial court ordered that the sentences were to be serve d concurrently

to each other, fo

r an effective

sentence of two y

ears; however, these sentences

were imposed to ru

n consecutively

to the defendant’s three-year sentence on his 1998 conviction of child abuse.

At the hearing to consider alternative sentencing, the defendant testified in his own behalf, and he also presented testimony from Roger Dale Hodge s, who was employed with Jacob’s Creek Job Corps, and from Lawrence Stout, the minister at the defendant’s church.

Mr

. Hodges testifie

d that he is an admis sions officer, c ounselor, and soc

ial skills trainer with the job corps.

He had known the d

efendant’s par

ents f or some time, and he met the defendant about a year earlier at a restaurant where the defendant worked. Mr. Hodges was aware of the defendant’s criminal convictions, and he had looked into the possibility of admitting the defendant to the j ob corps progra m. Mr. Hodges explained that the job corps program was quite structured and focused
on education an d e mployment training. The defendant, if admitted, would be required to live on campus in residential housin g; the progra

m lasted two y

ears. Because of his felony convictions, the defendant would not be eligible for the program without a waiver o f the admission req uirements. Mr. Hodges, however, was opti mistic that the program could “turn him around and make a productive citizen out of him.”

Mr. Stout testified that he i s the minister at Fu

ll Gospel Taberna

cle in Bristol, Tennessee. He had been with the church for about 26 years, an d h e had known the defendant’s grandparents

for over 40 years. Mr. Stout had only re cently become acquainted with the defendant through his ministry. Mr. Stout explained to the trial court that the defendant had expressed genuine
remorse to him for things he had done. According to Mr. Stout, the defendant has a lot of musical talent. Mr. Stout believed the defendant would be a great asset to his grandparents in terms of ca ring for them if he wer

e released to se

rve his sentence

s.-4- Mr. Stout indicated tha

t the defendant c

ame from a

broken home and th

at his parents lived in different states; he thought the defendant needed guidance. Mr. Stout offered to provide support for the defendant if he were to be released.

The defendant then to

ok the stand. He tol

d the trial court

that attending church had shown him

he could do things with his life other than running around with friendsand using drugs. The paint inhaling offense occurred, according to the defendant, befor e he met Mr. Stout. After meeting the minist

er, the defenda

nt said that he had t

urned his life awa

y from drug

s. By the time of the alternative sen t encing hearing, the defendant had been incarcera ted continuously

for about nine months. He acknowledged having a drug problem. He testified that he recognized

that he had almost ruined the lives of his grandpare

nts and of his son be

cause of drugs. H e wanted to be rele

ased, get a job,

and take care o

f his son and gra

ndparents . The defendan t wantedto participate

in the job corps program so he could get his GED, become trained in another trade, and obtain a good job.

The defendant claimed that beca use of his incarc eration he had le

arned that his actions had consequences and that there was more he could do with his life than sitting in jail. He described how unpleasant

and painful it was to be incarcerated and separated f

rom family me

mbers, but he took responsibility for what he had done.

When the defendant’s

testimony co

ncluded, the tr

ial court denied alternative sentencing. The trial court e xpressed specific

reservations ab

out t he de fendant committing additional offenses while released on an appeal bond. Based on the presentence report and the d efendant’s history, the

trial court lacke

d confidence tha

t the defendant w

ould be successf

ul i f sentenced to probation or evena com mun ity corrections alternative sentence. In the trial court’s view, the defendant had “just run out of rope.”

When there is a challe

nge to the length, range

, or manner of ser

vice of a sentenc

e, it is the duty of this court to conduct a de novo review of the r ecord with a presumption that the determinations made by

the trial court are correct. Tenn. Code Ann. § 40 -35-401(d) (199

7). This presumption is "conditioned upon the a ff irmative showing in the record that the trial court considered

the sentencing principles and al l relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). "The burden of showing that the sentence is improper is upon the ap pellant." Id. In the event the record fails to demonstrate the required consideration by the trial
cou rt, revi ew o f th e sen ten ce i s pu rel y de novo
. Id. If appellate review reflec

ts that the trial court properly considered all relevant factors and that its findings of fact are adequately supported by the record, this court must affirm the sentence, even if our independent judgment on the question might differ. See State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The record in this ca

se reflects that the trial court properly considered the sentencing principles relevant to probation and other alternative s ent encing. Accordingly, the trial court’s determination is e

ntitled to the presu

mption of correc

tness.-5- Regarding alternative sentencing, a defendant who "is an especially mitigated or standardoffender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence o f evidence to the contrary." Tenn. Code Ann. § 40-35-102(6) (1997). Our sentencing law also allows that "convicted fel

ons committing the m

ost severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of
soc iet y, and evincin g f

ailure o f past efforts at rehabilitation, shall be given first priority rega rding sentences involving incarceration." Tenn. Code Ann. § 40-35-102(5). A felon sentenced to eight (8) yearsor less and who is generally eligible for probation. SeeTenn. Code Ann. § 40-35-303(a), (b). “[D]etermining whether

a defendant is entitled to an alternative sentence nece

ssarily requires a separate inqui ry from tha

t of determinin

g whet her the defenda

nt is entitled to full probation.” State v. Bingham , 910 S.W. 2d 448, 455 (Tenn. Cri m. App. 1995). A de

fendant “is required to establish his suita

bility for full probation as distinguished from his favorable candidacy for alternative sentencing in general.” State v. Mounger , 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999). See Tenn. Code Ann. § 40-35-303(b)(1997); Bingham , 910 S.W.2d at 455-56. A defendant seeking full probation bears the burden of showing that probation will “subserve the ends of justice and the best interest of both the public and the defendant.” State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990). In deciding if probation is appropriate, the following factors should be considered: (1) the nature and characteristics of the c ri me; (2) the defendant's potential for rehabilitation; (3) whether full probation would und

uly deprec

iatethe seriousness of the offense; and (4) whether a sentence of full probation would provide an effective deterrent. See Bingham , 910 S.W.2d at 456.

As a Range I offender, the defendant enjoy ed the presumption of

favorable candidacy for alterna tive sentencin

g for his Class E felony. See Tenn. Code Ann. § 40-35-102(6) (1997). Moreover, he was eligible for probation. See Tenn. Code Ann. § 40-35-303(a) (1997). The record in this case, however, demonstrates that the presumption of favorable candidacy has been soundly rebuttedby the defendant's history of repea ted lawless behavior. See Tenn. Code Ann. § 40-35- 103(1)(A) (confinement ma y be based o

n necessity

to “protect society by r estraining a defendant who has a long history of criminal conduct); Tenn. Code Ann. § 40-35-103(1)(B) (confinement may be basedupon the fact that “measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant). This same lawless behavior defea ts his bid forprobation.

The defendant

received the be

nefit of suspende

d sentences in 199 6 on his disorderly conduct and resisting arrest convictions. Likewise, the defendant was affor ded favorable sentencing treatment (an eleven month, 29 day suspended jail sentence) when he ass aulted his wife in 1996. When the state

questioned the defendant about the assault conviction, his response was telling; he replied, “[I]t wasn’t assault, it was domestic violence.” Shortly after hi s ass ault conviction, the defendant then threw his eight-month old son and fractured the child’s skull. That

conduct resulted in a conviction for child abuse. The defendant was sentenced to three years as a Range I standard offender, and for the first t ime the defendan

t did not receive a suspended sentence. The defendant-6-

appeal ed the deni al of probation, which was his right, and he was released on an appeal bond pending dispositio

n of that appeal.

To make matters worse, while the defendant was awaiting the results of his appeal and while free on the appeal bond, he continued to commit criminal offenses. The defendant was convictedof public intoxication in the fall of 1998, and he began the criminal spree involved in this
case in early 1999. He attaches no significance to involving minor c

hildren in his crimi

nal activities; indeed, when the state questioned him about giving paint to a minor, the defendant rationalized that “we’retalking about a

minor that has more felony charges and more misdemeanor

charges than m

ost of the people that’s incarcerated.” He also added in defense that “if I hadn’t bought it [the paint

], he would have stolen it anyway.”

The defendant has an

obvious drug problem, which he has not resolved. After he was arrested for child abuse in 1997, he was required to attend and complete

outpatient drug and alcohol treatment. Even so, the defendant informed the presentence investigator that he drinks during

big holidays. He admitted to pre

viously using

“crystal me

th,” and he had sni

ffed paint prio

r t o the offenses involved in this case. The defendant began smoking marijuana when he was a teenager, but he told the presentence investigator that he last used marijuana in 1997 or 1998.

The trial court’s lack of confidence that this defendant can be successful on probation
or some other form of alternative sentencing is em inently reasonable and justified. The dismal prospects for rehabilitati

on of this defendant overwhelmingly favor an incarcerative sentence. See Tenn. Code Ann. § 40-35-102(5) (1997); see also Tenn. Code Ann. § 40-35-103(1)(C) (1997). The “ends of justice and the

best interest of both the

public and the def

endant” simply cannot be served or advanced otherwise. Dykes , 803 S.W.2d at 259.

We find no error in the trial court’s sentence, and the trial court’s judgment is thereby affirmed.

_____________________________________ JAMES CURWOOD WITT, JR., JUDGE