State v. Lovingood

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED DECEMB ER SESSION, 1997 February 9, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9612-CC-00446 ) Appellee, ) BLOUNT COUNTY ) HON. D. KELLY THOMAS, JR., JUDGE V. ) GREENE COUNTY ) HON. JAMES E. BECKNER, JUDGE JAMES ROBERT LOVINGOOD, ) ) (Theft under $500.00; Theft over $500.00) Appe llant. ) (Cases Cons olidated for Appe al)

FOR THE APPELLANT: FOR THE APPELLEE:

MACK GARNER JOHN KNOX WALKUP District Public Defe nder Attorney General & Reporter 419 H igh Stree t Maryville, TN 37804 PETER M. COUGHLAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

MICHAEL L. FLYNN District Attorney General for Blount Co.

EDW ARD P . BAILEY , JR. Assistant District Attorney General 363 Court Street Maryville, TN 37804

GREG W. EICH ELM AN District Attorney General for Greene Co.

ERIC D. CHRISTIANSEN Assistant District Attorney General NationsBank Building Greeneville, TN 37743

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION

The Defen dant, Jam es Rob ert Loving ood, pled guilty to twelve counts of theft of vario us grades and one count of alteration of a manufacturer’s serial number in the Circuit Court of Blount County. By agreement, he was to receive a ten (10) year sentence with the manner of service to be determined by the trial court. The trial court ordered Defen dant to serve the sentence in the Department of Correc tion. Defendant also pled guilty to one count of theft over ten thousand dollars ($10,000.00) in the G reene Coun ty Circu it Court. The agreed sentence in that case was ten (10) years to run concurrent with the sentence for the Blount Coun ty conviction s. The S tate and the Defendant had previously agreed that the Blount County trial court’s determination as to the manner of service of Defenda nt’s sente nce w ould a lso de termin e the m anne r of serv ice of Defen dant’s sentence in Greene C ounty. Therefore, the trial court in Greene County ordered the ten (10) year sentence for the theft to be served in the Department of Correction. The De fendant app ealed the sen tencing orders of both courts as of right regarding th e man ner of se rvice of his se ntence s, and his motion to conso lidate the app eals wa s grante d by this co urt. The D efendant argues that the trial cou rts erre d in denying him placement into the Community Corrections Program and re quiring him to serve his sentence in the Department of Correction. We affirm the judgments of the trial courts.

When an accused challenges the length, range or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct.

-2-Tenn. Code A nn. § 40-35-4 01(d). This pre sumption is “c onditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a senten ce, this cou rt must cons ider: (a) the evidence, if any, received at trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own be half; and (g) the potential or lack of potential for rehab ilitation or treatm ent. Tenn . Code Ann. § 40-35-102, -103, and -210; see State v. S mith, 735 S.W .2d 859 , 863 (T enn. C rim. App . 1987).

If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and made findings of fact adequately supported by the record, then we may not modify the sentence even if we wou ld have p referred a different res ult. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

At the se ntenc ing he aring in Blount Cou nty, the De fenda nt testifie d on h is own behalf. He was thirty-seven (37) years old and lived in East Knoxville. At that time, Defend ant was do ing contract wo rk for a real estate firm in Alco a. In 1983, Defe ndan t started using the na rcotic Dilaudid . To sup port his dru g habit, Defendant comm itted many crim es, including burg lary, possession of burglary

-3-tools and writing worthless checks, for which he received a sentence of ten (10) years in Blount County. Defendant served one (1) year in jail, then served the remainder of the sentence on probation. He admitted that during his proba tionary period he used Dilaudid and had to go th rough drug tre atme nt at Pe ninsu la Lighthouse. Defendant moved to Chattanooga in 1989, but when he returned to the Blount County area in 1994 he again became involved with Dilaudid. His drug habit becam e so expen sive that he returned to a group of individuals he knew were transporting stolen merchandise to Greene County. Defen dant’s role in the crime ring was to steal and to transport stolen farm equipment from Knox Coun ty to Greene County, for which he rec eived a cash com miss ion. Th is continued to occur over a pe riod of three (3) to four (4 ) month s. As a res ult, Defendant also had the c harges pe nding in Gre ene County. W hile there were numerous charg es ag ainst D efend ant, he adm itted tha t there w ere m ore items stolen than he had been charged with and these stolen items had not been recovered by the police.

The Defendant a gain went into drug rehabilitation treatment in October 1995. He was continuing to attend an outpatient program for intensive group therapy as well as Alcoholics Anonymous each week. Wh ile he was not earning much mon ey, De fenda nt state d that h e wou ld be w illing to make restitution payments. At the time of the sentencing hearing, Defendant was enrolled in a real estate sc hool an d was p lanning to obtain his real esta te license . The Defendant submitted various letters of recommendation on his behalf, from various friends and em ployers. In add ition, his curren t emp loyer te stified in suppo rt of the De fendan t.

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The Com mun ity Corre ctions Act allows ce rtain eligible o ffenders to particip ate in community-based alternatives to incarceration. Tenn. Code Ann. § 40-36-1 03. A de fendan t must first be a suitable can didate for alternative sentencing. If so, a defendant is then eligib le for participa tion in a co mm unity corrections program if he also satisfies several minimum eligibility criteria set forth at Tenne ssee Co de Anno tated section 40 -36-106(a).

Howeve r, even though an offender meets the requirements of eligibility, the Act does not provide that the offen der is auto matica lly entitled to su ch relief. State v. Grandbe rry, 803 S.W .2d 706 , 707 (T enn. C rim. App . 1990); State v. Taylor, 744 S.W .2d 919 , 922 (T enn. C rim. App . 1987). R ather, the statute provides that the criteria shall be interpreted as a minimum standard to guide a trial court’s determination of whether tha t offender is eligible for co mm unity corrections. Te nn. Code Ann. § 40-3 6-106(d).

Based upon the evide nce and the record, the trial court found that Defendant was eligible for the Community Corrections program for his ten (10) year sentence, but determined that he was not a suitable candidate. The trial court base d its de cision that Defendant was “to be given first priority regarding [a] sentence involving incarceration because [Defendant] clearly ha[s] a criminal history that shows a disregard for the laws and morals of society and failures of past effort at rehabilitation.” The trial court found that confinement was necessa ry to avoid depre ciating the seriousness of the offense and was particularly s uited to pro vide an e ffective dete rrent.

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Furthermore, the trial court found that Community Corrections was not appropriate due to the “sheer m agnitud e of the nu mber o f cases a nd the seriousness of the cases involved when [D efenda nt was] 24 and invo lved now .” Trial court noted tha t there were over twenty (20) serious felonies which involved two (2) different counties at the time Defendant was twenty-four (24) years old, and now there are ten (10) seriou s felon ies pe nding in Blount, Knox, and Greene counties. When speaking to the numerosity of the charges, the trial court noted that

You know , it’s not jus t break ing the law. It’s doing it to a degree that spans county lines, involves thousan ds and thou sands of do llars worth of mone y. And I don’t think the considerations about the Com munity Corrections Program and the likelihood of your rehabilitation, your attitude about how you went back into drug usage, weigh that agains t the danger o f your comm itting more crimes and th e ma gnitude of your criminal involvement over the years, it just doesn’t weigh ou t in your favor. I’m sor ry, but th is is a record that you’ve amas sed an d this is wh at you’ve d one. A nd I think the only ap propriate senten ce is the te n-year se ntence as agreed and serving that sentence in the Department of Corrections.

Defendant argues that since the trial court found the Defendant to be eligible for placem ent in the C omm unity Cor rections p rogram , then it erred in relying on the she er num ber of De fendan t’s crimes and his p oor am enability to rehabilitation in denying C omm unity C orrect ions. D efend ant infe rs that if h e is eligible for Community Corrections, then he is guaranteed to be placed in that program. In State v. Cummings, 868 S.W.2d 661, 668 (Tenn. Crim. App . 1992), the court held that “mere eligibility, of course, does not end the inquiry” in determining whether Com munity Co rrections is an app ropriate senten ce for a defend ant. Rather, the court is obliged to consider the defendant’s criminal history and his potential for rehabilitation or treatm ent. Id., citing State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Recently, a panel of this court, in a de novo review of an alternative sentencing issue, was guided by the a ppella nt’s

-6-considerab le potential for rehabilitation, unblemished criminal record and remorse for unlawful conduct in determining whether the appellant was a p roper ca ndidate for the Com munity C orrection s progra m. State v. Millsaps, 920 S.W.2d 267, 272 (Tenn . Crim. A pp. 199 5).

Upon our de novo review, we conclude that the trial court was correct in its findings and that the Defendant should serve a ten (10) year sentence in the Department of Correction. While eligible for Community Corrections under the terms of Tennessee Code Annotated section 40-36-106 , the eligibility criteria are the minimum stand ards. T he trial c ourt pr operly cons idered the De fenda nt’s extensive criminal history, including the series of thefts spanning four (4) months and several counties in 1995 to support his drug habit. While Defendant has attempted to overcome his addiction to Dilua did, these mo st recent crimes are reminiscent of his past behavior. In 1 983, the Defen dant wa s addicte d to Diluad id and committed several crimes in order to support his drug h abit, including forgery, po ssessio n of burg lary tools, co ncealing stolen pro perty and second degree burglary. F urtherm ore, De fendan t had over twenty (20) convic tions for writing w orthles s che cks. D efend ant ad mitted during his testimony at the sentencing hearing that he used drugs during his probation for the 198 3 offense s.

By his own admission, Defendant has a recurrin g drug p roblem . The trial court considered this problem in finding that he was unsuitable for the Com munity Corre ctions program. Defendant’s potential for rehabilitation is obviously lacking. And while Defendant may have expressed some remorse for his conduct at the sentencing hearing, he stated that he was not being prosecuted for many

-7-additional thefts which he committed. W hile the D efenda nt would have us to compa re his suitability for Community Corrections as akin to the determinations in Cummings and Millsaps, the Defendant in the case sub judice has committed many more crimes than the defendant in Cummings and has a n extensive criminal record unlike the defendant in Millsaps.

The trial cou rt was w ithin its discretion in finding Defendant unsuitable for Commun ity Corrections, and we affirm the judgments of the trial courts.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ DAVID G. HAYES, Judge

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