        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE

                        MARCH 1997 SESSION          FILED
                                                       May 28, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
MARK STEVEN GRIMSLEY,       )      C.C.A. No. 03C01-9701-CR-00017
                            )      HAMILTON COUNTY
           Appellant,       )
                            )      Hon. Douglas A. Meyer, Judge
VS.                         )
                            )      (DENIAL OF PROBATION)
STATE OF TENNESSEE,         )      Nos. 201904 and 201944 BELOW
                            )
           Appellee.        )




FOR THE APPELLANT:                 FOR THE APPELLEE:

JERRY H. SUMMERS                   JOHN KNOX WALKUP
Summers & Wyatt, P.C.              Attorney General and Reporter
500 Lindsay Street
Chattanooga, TN 37402              MICHAEL J. FAHEY, II
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493


                                   WILLIAM H. COX, III
                                   District Attorney General

                                   THOMAS J. EVANS
                                   Assistant District Attorney General
                                   600 Market Street, Suite 310
                                   Chattanooga, TN 37402

                                   LEROY PHILLIPS
                                   Special Prosecutor
                                   312 Vine Street
                                   Chattanooga, TN 37402




OPINION FILED:__________________


AFFIRMED


CORNELIA A. CLARK,
Special Judge
                                      OPINION


       Defendant appeals as of right from the trial court’s denial of probation after

his plea of guilty to two counts of solicitation to commit second degree murder. He

raises five issues for consideration. We affirm the judgment of the trial court.



       In 1990 defendant, a successful physician, was divorced from his wife of ten

years. She was granted custody of their two daughters. Defendant initially claimed

that his wife was a lesbian. He later asserted that his ex-wife and her new husband

were sexually abusing the two girls, as well as subjecting them to satanic cult rituals.

 A heated custody battle ensued. In October 1991 custody was temporarily

transferred to the defendant’s mother and access of both parties to the children was

limited. The litigation continued until June 1992, when defendant’s ex-wife was

again awarded custody of their daughters. Defendant strongly disagreed with the

court’s custody decision, and continued to assert that his daughters were in danger.



       In May 1994 the defendant, met with a TBI agent whom he believed to be a

Florida hit man. He hired the agent to kill his ex-wife and as “gravy”, her husband.

He took the agent to their residence, drew maps of their home floor plan, described

their security system, and made a $2,000.00 down payment on the $15,000.00

price to have the couple killed. He was indicted on two counts of solicitation to

commit first degree murder, a Class B felony.



       On January 8, 1996, defendant entered a plea of guilty under the principles

of North Carolina v. Alford, 400 U.S. 25, 39, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970),

to two counts of solicitation to commit second degree murder, a Class C felony.

The parties agreed that the defendant was a Range I standard offender and that the

sentences would be run concurrently. All other sentencing issues were left open.

After a sentencing hearing on April 1, 1996, the court imposed sentences of three

years on each count. The court found that “the circumstances of the case were

                                           2
especially shocking, reprehensible in excessive and exaggerated degree.” The

court denied defendant’s request for any form of alternative sentencing, citing the

need to avoid depreciating the seriousness of the offense under T.C.A.

§40-35-103(b). Defendant did not file a notice of appeal, and voluntarily entered

custody on May 28, 1996. A waiver of appeal was filed with and accepted by the

trial court.



          On August 29, 1996, while awaiting transfer to the Tennessee Department

of Corrections, defendant filed a motion to suspend the remainder of his sentence.

Following a hearing on September 9, 1996, that motion was denied, in part because

the defendant had mailed to various churches copies of psychological reports

placed under seal during the custody proceedings. No appeal was taken from that

denial.



          On December 6, 1996, defendant filed a second motion to suspend his

sentence. A lengthy evidentiary hearing was conducted December 16, 1996, and

the petition once again was denied. A timely notice of appeal was filed following

that decision.



          Although defendant in his brief raises issues about the trial court’s actions on

April 1 and September 9, 1996, those actions are not before the court in this appeal.

Appeal of the original sentence was waived in writing. See Rule 37(d), Tenn. R.

Crim. P. No notice of appeal was filed concerning the action taken in September

1996 and therefore the right to appeal that ruling also has been waived. Id. The

only issue before us is the denial of probation on December 16, 1996.



          Before a trial court may grant probation to an accused who has been

sentenced to the Department of Correction and is awaiting transfer, (a) the trial

court must have jurisdiction to enter the judgment, (b) the accused must be confined

to the county jail or workhouse, (c) the nature of the offense and the length of the



                                             3
sentence must not bar probation, and (d) it must be in the best interest of society

and the accused to grant the accused probation. If these prerequisites are present,

the trial court may grant the accused probation. State v. Karon L. Washington, No.

02C01-9510-CC-00306 (Tenn. Crim. App., Jackson, July 26, 1996). In this case the

first three prerequisites have been met, and the issue before the court concerns the

last prerequisite - what is in the best interest of society and the defendant. The trial

court found that no material changes had occurred since the time of the original

sentencing hearing or the first request for probation.           The court found no

circumstances that would warrant or justify suspending defendant’s sentence.



       We have carefully reviewed the entire record and trial court’s actions on

December 16, 1996. The decision to grant or deny probation at that time was within

the court’s discretion. We find no basis for reversal. The judgment of the trial court

is affirmed pursuant to Rule 20, Tenn. R. Ct. Crim. App.



                                            __________________________________
                                            CORNELIA A. CLARK
                                            SPECIAL JUDGE



CONCUR:


__________________________________
JOHN H. PEAY
JUDGE


__________________________________
PAUL G. SUMMERS
JUDGE




                                           4
    IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE




MARK STEVEN GRIMSLEY,                )       C.C.A. No. 03C01-9701-CR-00017
                                     )       HAMILTON COUNTY
               Appellant,            )
                                     )       Hon. Douglas A. Meyer, Judge
VS.                                  )
                                     )       (DENIAL OF PROBATION)
STATE OF TENNESSEE,                  )       Nos. 201904 and 201944 BELOW
                                     )
               Appellee.             )




                                      JUDGMENT



       Came the appellant, Mark Steven Grimsley, by counsel and also came the
attorney general on behalf of the state, and this case was heard on the record on
appeal from the Criminal Court of Hamilton County; and upon consideration thereof,
this court is of the opinion that there is no reversible error in the judgment of the trial
court.

       Our opinion is hereby incorporated in this judgment as if set out verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of
Hamilton County for execution of the judgment of that court and for collection of
costs accrued below.

       Costs of this appeal will be paid by the appellant.


                                             PER CURIAM

                                             John H. Peay, Judge
                                             Paul G. Summers, Judge
                                             Cornelia A. Clark, Special Judge
