Opinion
No. E2005-00664-CCA-R3-CD.
June 27, 2006 Session.
Filed August 7, 2006.
Appeal from the Criminal Court for Knox County; Nos. 74519, 74520, 76090, 76303, 80728; Richard R. Baumgartner, Judge.
Judgments of the Criminal Court Affirmed, Case Remanded.
Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District Attorney General, for the appellant, State of Tennessee.
Mike Whalen, Knoxville, Tennessee, for the appellee, Robert Eugene Rutherford.
Joseph M. Tipton, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert W. Wedemeyer, JJ., joined.
OPINION
The defendant, Robert Eugene Rutherford, was convicted on his guilty pleas of aggravated burglary, a Class C felony, six counts of theft of property valued at $1,000 but less than $10,000, a Class D felony, seven counts of burglary of an auto, a Class E felony, three counts of theft of property valued at $500 but less than $1,000, a Class E felony, reckless endangerment, a Class E felony, theft of property valued at less than $500, a Class A misdemeanor, and assault, a Class A misdemeanor. The defendant received an effective eight-year sentence pursuant to his plea agreement, and the trial court imposed probation. The state appeals from the trial court's grant of probation and the trial court's ruling that the defendant's probation would not be revoked following an admitted violation. We conclude no error exists, and we affirm the judgments of the trial court. We remand the case, however, for a determination whether clerical error exists in the judgments for counts three and six of case 80728.
The record reflects that the defendant committed numerous crimes related to his drug addiction. The present offenses were committed in January, March, April, and July 2002, and June 2004. The presentence report reflects that the defendant broke into numerous vehicles and stole contents. He stole money and tools from his employer, Mr. Transmission; he stole contents from a customer's vehicle, and he worked on customers' vehicles after hours and kept the money. He shoplifted merchandise from Wal-Mart. He fled from authorities on two occasions, and on one of those occasions would have hit an officer with his car had she not jumped from his path.
The defendant entered into a plea agreement disposing of all the charges surrounding these events. The agreement called for an effective eight-year sentence, with the manner of service to be determined by the trial court. While he was awaiting that sentencing determination, he participated in a drug court program that was supervised by the trial court. The court received evidence on multiple occasions before ruling on the manner of service of the sentences.
Andrew Parker testified that he left his car at Mr. Transmission to be repaired. He left eighty-seven compact disks inside the car, which he valued at approximately $1500. Parker returned to the shop later to retrieve the disks, and although the business was closed, the defendant was present. According to Parker, the defendant asked Parker not to tell anyone he was there working because he was not supposed to be there after hours. Parker attempted to retrieve his disks, but they were not in his car. He told the defendant, who said the owner put customers' valuables in the safe. Parker said the defendant advised him to return the next day. When Parker did so, the owner told him that he did not have a safe and did not know where the disks were.
Brian Galli testified that the defendant worked for him for a week and a half as a manager at Mr. Transmission. During part of this time, Galli was on vacation. In his brief employment, the defendant stole $160 from the cash register, worked on customers' cars after hours and kept the payments, stole a diagnostic scanner, and stole a socket and wrench set. Galli said that there is no safe and that the business does not store valuables for its customers. Galli testified that he fired the defendant when the defendant came to the business intoxicated. Galli asked the court to incarcerate the defendant. He said that he had given the defendant an opportunity to earn good wages and the defendant stole from him, his business, and his customers. Galli was particularly incensed that the defendant committed these crimes while he was on bail for other offenses.
Jennifer Gibson, who was a victim of one of the defendant's auto burglaries, testified that her car was burglarized and her handbag, checkbook, driver's license, and debit card were taken. She was inconvenienced and lost about $300. She testified that as a result of the crime, she had become anxious about walking to her car and no longer feels safe.
The defendant acknowledged to the court at the beginning of the sentencing hearing that he had missed a drug screen the night before the hearing because he forgot to report for it. He apologized to the court and said that he had taken a drug screen later at his halfway house. Otherwise, the defendant did not testify at the sentencing hearing. The presentence report reflects that the twenty-seven-year-old defendant has a GED. He reported to the presentence officer that he had a $300- to $400-a-day drug habit which fueled his commission of the offenses. The defendant was enrolled in three classes in a paralegal program and was employed doing furniture restoration. He had two minor children and paid child support to their mothers, although he reported an arrearage on payments for one of the children. He told the presentence officer that he was enrolled in a treatment program, was attending meetings, had not used drugs for 120 days, and had passed all the drug screenings he had been given.
The trial court noted that the defendant had been participating in the drug court program for three months and that it was an intensive program. The court observed that treatment programs in the Department of Correction exist at some institutions and that Narcotics Anonymous and Alcoholics Anonymous meetings are available. However, the court also observed that many defendants who are sent to the Department of Correction are paroled and quickly reoffend because their addiction problems were not adequately addressed in prison. The court found that the defendant was a proper candidate for probation conditioned upon the drug court program.
Just over one month later, a probation violation warrant issued alleging that the defendant had tested positive for cocaine. The defendant admitted that he was in violation of his probation. Thus, the only issue for determination was whether his probation should be revoked.
Tami Cox, the defendant's probation officer, testified that the defendant had participated in weekly drug court meetings, as well as daily therapy, three random drug screens a week, and various meetings and classes at his halfway house. Cox said the defendant had a sponsor, case manager, therapist, and probation officer, any of whom he could call if he needed support. Cox reported that both she and the defendant's case manager had counseled him about manipulative behavior in trying to mislead them about his progress in his treatment program.
The defendant testified that he wanted to overcome his drug addiction. He said that he had missed a drug screen before sentencing because he was "stressed out" and forgot about it but that he took the test at the halfway house later that day and it was negative. He admitted that he had used "crack" at a later date when a resident of the halfway house was smoking it and shared it with him. The defendant said that he had not begun paying restitution because his first payment was not yet due but that he had paid his first probation payment, was paying child support, and was paying rent to the halfway house.
The trial court acknowledged the difficulty of the decision and took the matter of whether the defendant's probation should be revoked under advisement. The next day, the trial court recognized the defendant's shortcomings in being completely honest in his treatment program, but the court found that this type of behavior was not atypical of individuals attempting recovery from addiction. Likewise, the court found that a relapse is not atypical in efforts toward recovery. The court ruled that the defendant's probation would not be revoked, but his probation would be conditioned upon him participating in "the most structured setting we can put you in" and complying with the terms of that program in addition to the existing terms of his probation.
I
The state's first challenge is to the trial court's grant of probation. It contends that the defendant is a poor candidate for rehabilitation and that a sentence other than one of confinement depreciates the seriousness of the offenses. The defendant counters that these factors were considered by the trial court but that the court did not find the evidence presented overcame the defendant's presumptive suitability for an alternative sentence.
The state filed two notices of appeal in this case, one for the sentencing issue and one for the revocation issue. The notice of appeal pertinent to the sentencing issue only refers to four of the defendant's five case numbers.
When a defendant appeals the manner of service of a sentence imposed by the trial court, this court conducts a de novo review of the record with a presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d) (2003). However, the presumption of correctness 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). The burden is on the appealing party to show that the sentence is improper. T.C.A. § 40-35-401(d) (2003), Sentencing Commission Comments. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim.App. 1991).
We note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-102(6), -114, -210 and -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are inapplicable to the defendant's appeal.
When determining if confinement is appropriate, a trial court should consider whether (1) confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct, (2) confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to people likely to commit similar offenses, or (3) measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. T.C.A. § 40-35-103(1)(A)-(C). The trial court may also consider a defendant's potential or lack of potential for rehabilitation and the mitigating and enhancement factors set forth in Tennessee Code Annotated sections 40-35-113 and -114. T.C.A. §§ 40-35-103(5), -210(b)(5) (2003); State v. Boston, 938 S.W.2d 435, 438 (Tenn.Crim.App. 1996). The sentence imposed should be the least severe measure necessary to achieve the purpose for which the sentence is imposed. T.C.A. § 40-35-103(4).
The defendant was convicted of a Class C felony, six Class D felonies, eleven Class E felonies, and two Class A misdemeanors. As such, he was entitled to the presumption that he is a favorable candidate for alternative sentencing in the absence of evidence to the contrary. Id. § 40-35-102(6) (2003).
The state argues that the presumption of correctness should not apply on appellate review of this case because the trial court failed to consider whether confinement was necessary to avoid depreciating the seriousness of the eighteen felony and two misdemeanor offenses and the defendant was not a good candidate for rehabilitation. The record, however, reflects that the court considered the principles of sentencing and the unique facts and circumstances of the case. Thus, our review is de novo with a presumption of correctness. Ashby, 823 S.W.2d at 169. Additionally, we note that the state has not provided us with a copy of the guilty plea hearing, which is a part of the record we must consider in review of the sentences imposed. See T.C.A. § 40-35-210(b) (2003); State v. Keen, 996 S.W.2d 842, 844 (Tenn.Crim.App. 1999) (presuming correctness of all determinations made by trial court relative to length of the sentence imposed in absence of transcript of guilty plea hearing and indictment from record on appeal).
Of particular relevance are the considerations for imposing a sentence of confinement. A sentence of confinement may be imposed if "[c]onfinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct[.]" T.C.A. § 40-35-103(1)(A) (2003). The trial court noted in this case that the defendant's criminal history before the instant offenses was not extensive. The defendant had no prior convictions; his presentence report reflected only two prior charges that had been dismissed, one after diversion.
Confinement may also be imposed if it "is necessary to avoid depreciating the seriousness of the offense or if confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses[.]" Id. at (1)(B). The trial court acknowledged to one of the victims of the car burglaries who was present in the courtroom and opposed the defendant receiving an alternative sentence that "there is no question that [car burglary is] a crime that has great impact on the people who are the victims of that crime, and there's no question Mr. Rutherford engaged in many of those kinds of actions, including stealing and a lot of other things." However, the court balanced this concern with the fact that the defendant suffered from a serious drug addiction, and his cycle of committing criminal offenses against additional victims would continue until he received effective drug treatment.
Another relevant statutory consideration is whether "[m]easures less restrictive than confinement have frequently or recently been applied to the defendant." Id. at (1)(C). As acknowledged by the trial court, the defendant had completed a prior diversion for a theft offense. He committed the offenses in 2004 while on bond for the 2002 offenses. However, the defendant had no prior criminal convictions.
An additional consideration is whether the defendant possesses potential for rehabilitation or treatment. Id. § 40-35-103(5). Certainly, the defendant has engaged in considerable criminal activity. However, the trial court found that the defendant had a serious drug addiction and that the defendant had been participating in the drug court program prior to sentencing. He had been living in a halfway house and was employed.
Upon consideration of the factors weighing both in favor of and against a sentence involving confinement, the trial court found that the defendant was a proper candidate for an alternative sentence and granted probation conditioned on the drug court program. As set forth above, the record reflects that the trial court considered the relevant considerations as well as the facts and circumstances of the case. The state has not carried its burden of showing that the record does not support the trial court's ruling. See, e.g., State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).
Having rejected the state's argument that this court should set aside the lower court's sentencing order in favor of confinement in the Department of Correction, we next consider the propriety of probation as the form of alternative sentencing imposed by the trial court. In addition to the overall sentencing considerations, a further consideration in determining the suitability of a defendant for probation is whether 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) (quoting Hooper v. State, 201 Tenn. 156, 161, 297 S.W.2d 78, 81 (1956)), overruled on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). The record supports the trial court's grant of probation. The trial court found that the public and the defendant were better served by the defendant's receiving drug treatment through the drug court program while on probation, rather than returning to a life of crime after incarceration. The court found that placing the defendant in the drug court program "makes more sense than just putting somebody in jail with no treatment, understanding that if our plan doesn't work, we still have that option." See Fletcher, 805 S.W.2d at 786 (noting that trial judge was influenced toward alternative sentence by defendant's pre-sentencing efforts toward rehabilitation; trial judge commented, "Look, if I send you to the penitentiary, and that is a mistake, that is a mistake I cannot cure. On the other hand, if I put you on probation, and that is a mistake, then that is a mistake I can cure."). The court also found that the drug court program was intensive, and that the options available to an inmate in the Department of Correction were limited by comparison. The record reflects that the defendant had never participated in a rehabilitation program prior to entering the drug court program. Thus, the state has not overcome the presumptive correctness of the probationary sentence imposed.
II
The state's second issue is whether the trial court erred in ruling that the defendant's probation would not be revoked following a positive drug screen and an admitted use of cocaine. The state contends this was an abuse of discretion. The defendant disagrees, as do we.
Relative to when a trial court may revoke probation and to the standard of review in an appeal of such an action, in State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991), our supreme court stated:
We take note that a trial judge may revoke a sentence of probation or a suspended sentence upon a finding that the defendant has violated the conditions of his probation or suspended sentence by a preponderance of the evidence. T.C.A. § 40-35-311. The judgment of the trial court in this regard will not be disturbed on appeal unless it appears that there has been an abuse of discretion. State v. Williamson, 619 S.W.2d 145, 146 (Tenn.Crim.App. 1981). In order for a reviewing court to be warranted in finding an abuse of discretion in a probation revocation case, it must be established that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the conditions of probation has occurred. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn.Crim.App. 1980). The proof of a probation violation need not be established beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a conscientious and intelligent judgment. State v. Milton, 673 S.W.2d 555, 557 (Tenn.Crim.App. 1984).
In the present case, the defendant admitted violating his probation by smoking crack cocaine, which caused him to fail a drug test. Thus, the only question is whether the trial court abused its discretion in allowing the defendant to remain on probation. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); Delp, 614 S.W.2d at 398. The state claims that the evidence of the crack cocaine violation shortly after sentencing, as well as evidence of an earlier failure to take a drug test, signal that the defendant cannot abide by the terms of a probationary sentence. Upon review, we are not convinced that the trial court abused its discretion, and we believe the court considered the matter carefully. The court found that the defendant's relapse was not atypical of individuals who are attempting recovery from drug addiction. It imposed an additional condition of probation which required the defendant to enroll in the most structured situation available in the drug court program. The defendant's prior failure to take a drug test at the scheduled time was not a basis for revocation listed in the revocation warrant, nor was it a basis upon which the state sought revocation at the hearing. The trial court did not abuse its discretion in not revoking the defendant's probation on this basis. See State v. Wade, 863 S.W.2d 406, 407 (Tenn. 1993) (holding that a defendant facing probation revocation is entitled to due process in those proceedings, which includes notice of basis upon which revocation is sought).
III
Finally, we have discovered upon our review of the record that an anomaly exists with respect to the judgments in counts three and six of case 80728. The indictment in case 80728 charged the defendant with theft in count three and assault in count six. The written guilty plea agreement and judgments both transpose the offenses of these counts, defining count three as assault and count six as theft. The court minutes of the guilty plea hearing, however, define the offenses in accord with the indictment and at odds with the written plea agreement and the judgments. As we noted above, we have not been favored with a transcript of the guilty plea hearing. Thus, the record before us is insufficient for us to determine whether a correction of the judgment forms is required. See Tenn. R. Crim. P. 36 (providing for correction of clerical errors in judgments). A remand to the trial court is in order to determine whether the judgments in counts three and six of case 80728 need to be corrected.
In consideration of the foregoing and the record as a whole, the judgment of the trial court is affirmed. The case is remanded for the trial court to determine whether the judgments in counts three and six of case 80728 require correction of a clerical error.