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State v. Jenkins6/8/1999
On September 17, 1997, Appellant Julia Jenkins pled guilty to one count of aggravated assault. After a sentencing hearing on November 14, 1997, the trial court sentenced Appellant as a Range I standard offender to three years of imprisonment. Appellant challenges the trial court's denial of probation. After a review of the record, we affirm the judgment of the trial court.
FACTS
On May 28, 1996, Appellant and Berl Freels spent approximately four hours drinking at Lucky's Lounge in Oak Ridge, Tennessee. Appellant and Freels then went to a store, purchased a twelve-pack of beer, and then went to Freels' residence. At some point, Appellant and Freels began arguing, and Appellant subsequently shot Freels in the head with a .32 caliber pistol. Appellant initially claimed that Freels had shot himself, but she subsequently gave a statement in which she claimed that she accidentally shot Freels after she picked up the gun from the table where Freels had placed it. At the sentencing hearing, Appellant testified that she shot Freels after he asked her to. Appellant testified that the first time she fired the gun, it did not go off, but when Freels kept begging her to shoot him, she fired the gun again and shot him.
ANALYSIS
Appellant contends that the trial court erred when it failed to grant probation in this case. We disagree.
Under Tennessee law, a defendant is eligible for probation if the sentence imposed is eight years or less and further, the trial court is required to consider probation as a sentencing alternative for eligible defendants. Tenn. Code Ann. § 40-35-303(a)-(b) (1997). However, even though probation must be automatically considered, "the defendant is not automatically entitled to probation as a matter of law." Tenn. Code Ann. § 40-35-303(b) (1997), Sentencing Commission Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). Indeed, a defendant seeking full probation bears the burden on appeal of showing that the sentence actually imposed is improper and that full probation will be in the best interest of both the defendant and the public. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995). When determining suitability for probation, the sentencing court considers the following factors: (1) the nature and circumstances of the criminal conduct involved; (2) the defendant's potential or lack of potential for rehabilitation, including the risk that, during the period of probation, the defendant will commit another crime; (3) whether a sentence of full probation would unduly depreciate the seriousness of the offense; and (4) whether a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes. Tenn. Code Ann. §§ 40-35-210(b)(4), -103(5), -103(1)(B) (1997 & Supp. 1998); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); Bingham, 910 S.W.2d at 456.
Although the trial court did not expressly list the factors on which it based its decision to deny probation, it is apparent from the record that the court based its decision on the nature of the offense and on a Conclusion that probation would depreciate the seriousness of the offense. The nature and characteristics of the criminal conduct involved are factors that are logically related to the issue of depreciating the seriousness of the offense. See Hartley, 818 S.W.2d at 374-75. When these factors serve as the only basis for denying probation, "the circumstances of the offense as committed must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree and the nature of the offense must outweigh all factors favoring a sen
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