State v. Drake6/6/2005
dant in connection with the charges involving Ms. Burke's death exhausts the efficacy of the factors. See State v. Sanford L. Wilson, No. 01C01-9708-CR-00319, slip op. at 4 (Tenn. Crim. App., Nashville, Sept. 29, 1998) (no per se prohibition against "double mitigation" of a sentence by applying a mitigating factor even though jury has extended leniency on the same basis; however, Adouble mitigation@ inappropriate if additional consideration of the relevant facts is not merited); State v. Michael D. Frazier, No. 03C01-9602-CR-00084, slip op. at 6-8 (Tenn. Crim. App., Knoxville, June 4, 1997).
On balance, we believe that sentencing enhancement factor (11) is entitled to significant weight in this case and that the defendant's remorse, age, and lack of criminal record, although shown, supply marginal mitigating weight. A four-year sentence in this case is appropriate and justly deserved. See State v. Michael T. Gilliam, No. E1999-01112-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App., Knoxville, Apr. 12, 2000) (application of a mitigating factor does not guarantee the imposition of a less-than-maximum sentence, especially when the sentencing range is only one year); State v. Samuel D. Braden, No. 01C01-9610-CC-00457, slip op. at 14 (Tenn. Crim. App., Nashville, Feb. 18, 1998) (enhancement factors may be sufficient "to firmly embed the sentence in the ceiling," so as to resist the pull of a mitigating factor to reduce the sentence to a level less than the maximum).
The defendant further complains that he should have received full probation instead of split confinement. We disagree. To be sure, he was eligible for full probation. See Tenn. Code Ann. § 40-35-303(a) (2003). The determination of entitlement to full probation, however, necessarily requires a separate inquiry from that of determining whether a defendant is entitled to a less beneficent alternative sentence. See Bingham, 910 S.W.2d at 455. A defendant is required to establish his "suitability for full probation as distinguished from his favorable candidacy for alternative sentencing in general." State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see State v. Jimmy Ray Dockery, No. E2004-00696-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nov. 30, 2004). A defendant seeking full probation bears the burden of showing that probation will "subserve the ends of justice and the best interest of both the public and the defendant." State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).
The defendant in this case has not shouldered his burden of demonstrating how probation will subserve the ends of justice and the best interests of both the public and the defendant. Rather, he assigns as error the trial court's statement that confinement was necessary to avoid depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B) (2003). With regard to suitability for full probation, it is appropriate, however, to consider the circumstances of the offense, the defendant's potential or lack of potential for rehabilitation, whether full probation will unduly depreciate the seriousness of the offense, and whether a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes. See State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).
In summary, the split-confinement sentence imposed showed proper respect for the presumption that the defendant was a favorable candidate for alternative sentencing options in the absence of evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6) (2003). We, thus, decline to disturb the sentence imposed.
The defendant's last sente
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