 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Barnes3/22/1999
Russell Barnes appeals the denial of his request for alternative sentencing. The appellant pleaded guilty on March 30, 1998 to aggravated burglary committed on or about May 20, 1997 and was sentenced in accordance with his plea agreement to the range 1 minimum of three years, with the manner of service to be determined at a subsequent sentencing hearing. At that hearing, the trial court found that the appellant is not a suitable candidate for alternative sentencing and ordered confinement in the Tennessee Department of Corrections. The appellant's sole issue on this appeal is whether the trial court erred in denying alternative sentencing.
We affirm the judgment of the trial court.
When an accused challenges the length or manner of service of a sentence, it is the duty of this Court to conduct a de novo review on the record "with a presumption that the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). This presumption "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, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this Court must consider (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) any statutory mitigating or enhancement factors; (6) any statement made by the accused in his own behalf; and (7) the potential or lack or potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellant carries the burden of showing that his sentence is improper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm'n cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
At his sentencing hearing, the appellant testified that he was employed and that he provides for his fiancé, who has cancer and who was, at that time, pregnant. He indicated that, although he had previously completed an alcohol abuse treatment program, he still has a drinking problem. And, he stated that he would agree to pay restitution if requested by the victim.
The appellant also admitted, however, that he had been arrested and convicted four times for public intoxication and once for domestic assault against his fiancé while on bond awaiting sentencing in the present case. Additionally, the state exhibited the appellant's presentence report, which indicates some fourteen prior arrests. Although the report does not state the Disposition of these arrests, the appellant admitted that twelve or thirteen of them resulted in convictions.
After hearing this proof, the trial court first noted that the appellant is presumed eligible for alternative sentencing. See Tenn. Code Ann. § 40-35-102. However, based on the appellant's lengthy criminal record, the court "inescapabl conclu that he's not an appropriate candidate for any type of alternative sentencing. He has very little respect for the law or any rules that would govern civilized people's behavior."
The appellant first argues that, because the trial court failed to consider the eligibility requirements for a sentence to the community corrections program, the sentence below is not entitled to a presumption of correctness. We disagree. As noted above, the trial court began by acknowledging that the appellant is presumed eligible for alternative sentencing. However, the appellant's proven
Page 1 2 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|