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State v. Lane9/27/1999
issible as evidence of prior bad acts or evidence of social history even if expungement is later obtained." Id.
Although the issue in Schindler was raised in the context of judicial diversion, its reasoning and analysis are equally applicable. Accordingly, the principles outlined in Schindler compel us to conclude that the criminal acts underlying an expunged conviction may properly be considered to determine whether a defendant is a suitable candidate for alternative sentencing. To the extent that the trial court's decision in this case can be construed as dependent on the mere fact of conviction (as compared to the underlying conduct), we find error in denying alternative sentencing on that basis.
Our inquiry does not stop here. To determine whether the defendant is eligible for alternative sentencing, we must conduct a de novo review of this record, guided by the relevant statutory principles of alternative sentencing. See Tenn. Code Ann. § 40-35-401(d); Ashby, 823 S.W.2d at 169 (Tenn. 1991).
Under the Sentencing Act, a defendant who does not possess "criminal histories evincing a clear disregard for the laws and morals of society" and is "convicted of a Class C, D or E felony," is "presumed to be a favorable candidate for alternative sentencing options." Tenn. Code Ann. § 40-35-102(5), -102(6). The presumption may be overcome, however, by "evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). Such evidence may include evidence that confinement is necessary to avoid depreciating the seriousness of the offense or is particularly suited to provide an effective deterrence to others likely to commit similar offenses. State v. Davis, 940 S.W.2d 558, 560 (Tenn. 1997).
Besides the expunged theft conviction and two unserved warrants for passing worthless checks, the record also indicates that there were two uncharged incidents of statutory rape and four uncharged incidents of official misconduct emanating from the relationship with E. S. Furthermore, the defendant provided marijuana and cigarettes to a minor under his supervision knowing her history of substance abuse. Moreover, he facilitated the complainant's escape from her custodial placement. The fact that Lane was, at all pertinent times, E. S.'s DHS counselor makes his conduct especially disturbing. As the Court of Criminal Appeals found: "The nature and circumstances of the defendant's conduct . . . outweigh all other factors favoring alternative sentencing and, therefore, confinement is necessary to avoid depreciating the seriousness of the offense." Thus, the abundance of evidence in this case fully rebuts any presumption Lane may have had to alternative sentencing.
IV.
In Conclusion, we find that because Wilkerson is limited to cases involving consecutive sentencing of "dangerous offenders," the trial court properly imposed consecutive sentencing. We also conclude that the Court of Criminal Appeals adhered to proper statutory sentencing procedures and duly weighed and considered all appropriate factors. The abundance of egregious evidence fully rebuts Lane's entitlement to an alternative sentence.
Costs of appeal are taxed to the defendant.
ADOLPHO A. BIRCH, JR., Justice
J. Barker, not participating
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