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State v. Whytsell6/18/2003
uring this trial.
Relying on Tennessee Code Annotated § 40-35-103(1), the Defendant states that he had no prior criminal record. See Tenn. Code Ann. § 40-35-103(1)(A). He also points out that no argument was made that community service was needed to avoid depreciating the seriousness of the offense or that community service was necessary to provide deterrence for others. See id. § 40-35-103(1)(B). We conclude that the Defendant's reliance on Tennessee Code Annotated § 40-35-103(1) is misplaced. That statute specifically provides that those considerations be made when determining whether an offender be incarcerated. The Defendant contends that although community service is not strictly confinement, "it is still a restraint on the Defendant's liberty." However, we conclude that the trial court properly ordered the Defendant to perform fifty days of community service. The Tennessee Supreme Court has held that a defendant's lack of candor or untruthfulness reflects poorly on a defendant's potential for rehabilitation. See State v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984); see also State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996).
The Defendant further argues that although the trial court stated that it based the community service requirement on the Defendant's failure to tell the truth, it was actually punishing the Defendant for exercising his right to a jury trial. The Defendant points out that at the beginning of the Defendant's trial, the Court addressed the Defendant's counsel as follows:
THE COURT: Mr. Levitt, does your client realize that the State, I . . . assume the State's offered the same thing he received downstairs?
MR. LEVITT: Yes, sir.
THE COURT: A $360 fine and 48 hours active time, which is the minimum.
MR. LEVITT: Yes, sir.
THE COURT: Does your client realize if he goes to trial and is convicted, all likelihood is he will receive more time?
MR. LEVITT: I don't know if he realizes in all likelihood he would. He realizes there's a possibility of that, Judge, yes, sir.
THE COURT: Okay. Because, see, that is the minimum and the State offers the minimum because he accepts responsibility for his action and spares the State the trouble and expense of trial. So a lot - -
MR. LEVITT: I think that works both ways, Judge.
THE COURT: So the odds, the odds are great he . . . would not receive the same sentence.
We find this argument unpersuasive. The trial court was merely informing the Defendant that if he went to trial, he could potentially receive more time than was offered by the State in exchange for a plea of guilty. In addition, we note that the Defendant's testimony directly contradicted some portions of Officer McElrath's testimony. It is apparent from the jury's verdict that the jury found Officer McElrath more credible. The trial court heard the testimony of the Defendant at trial and observed his demeanor. In our view, the trial court did not err by determining that the Defendant was untruthful. This issue is without merit.
Because we conclude that the trial court did not err in sentencing the Defendant, we AFFIRM the judgment of the trial court.
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