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State v. Keathly5/21/2003
a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes, Tennessee Code Annotated § 40-35-103(1)(B). Bingham, 910 S.W.2d at 456. Denial of probation may be based solely upon the circumstances of the offense when they are of such a nature as to outweigh all other factors favoring probation. Fletcher, 805 S.W.2d at 788-89.
The proof introduced at the sentencing hearing established that the Appellant was sixty years old, had been married for thirty-seven years, and had a twenty-five-year-old son. The Appellant stated that "his past and present relations are good, loving and strong. My wife and son are supportive." Furthermore, he graduated from Tennessee Technological University in 1963 with a bachelors degree and was then employed by the Boy Scouts of America for the next thirty-nine years. Beginning in 1965, he also served as a captain in the United States Naval Reserve and retired honorably in 1993. At the sentencing hearing, the Appellant, reading from his prepared statement, testified that he sought professional counseling for his depression after the accident, had not had "one single drink of alcohol in fourteen months," and had "turned to the church for strength." An insurance settlement, in the amount of two-hundred and fifty thousand dollars, was reached with the victim. This amount has been paid in full and, therefore, a long probationary period is not necessary for the purpose of ensuring restitution. The Appellant's prior criminal history consists of a single DUI conviction in 1993, for which the Appellant received forty-eight hours of jail time. A single, ten-year-old alternative sentence does not show that measures less restrictive than confinement have frequently, recently, and unsuccessfully been applied to the Appellant. Finally, the Appellant, who suffers from coronary artery disease, underwent bypass surgery in 1991. His primary care physician recommends "that Mr. Keathley's health needs be considered when making a decision regarding possible incarceration."
Additionally, the trial court, in denying probation, placed great weight on the Appellant's testimony at the sentencing hearing and, as previously concluded, this was inappropriate. Although the issue of alternative sentence is pretermitted by our remand for resentencing, we, nonetheless, note that some type of alternative sentence is justified and a six-year probationary period appears to be excessive under the facts of this case. The particular manner of sentence, whether it be full probation or some other type of alternative sentence, is a determination for the trial court upon remand.
CONCLUSION
Based upon the foregoing, we conclude that the Appellant was denied his statutory right of allocution. Furthermore, given the prejudicial nature of the information elicited by the State and the trial judge, we, consequently, remand this case for transfer to another judge for purposes of conducting a new hearing in accordance with sentencing principles and this opinion.
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