        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 27, 2011 Session

             STATE OF TENNESSEE v. JAMES LEROY POSTON

           Direct Appeal from the Criminal Court for Cumberland County
                     No. 08-0188    David A. Patterson, Judge


                 No. E2011-00106-CCA-R3-CD - Filed March 5, 2012


The Defendant-Appellant, James Leroy Poston, was indicted by the Cumberland County
Grand Jury for one count of second degree murder. Poston subsequently entered a guilty plea
to reckless homicide in the Cumberland County Criminal Court. Pursuant to his plea
agreement, Poston received a sentence of two years as a Range I, standard offender, with the
manner of service to be determined by the trial court. At the sentencing hearing, the trial
court imposed a sentence of confinement in the Tennessee Department of Correction. On
appeal, Poston argues that the trial court erred in denying his request for an alternative
sentence. Upon review, we reverse the judgment of the trial court and remand for entry of
a judgment sentencing Poston to serve his two-year sentence on supervised probation.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                            Reversed and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JOSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

C. Douglas Fields, Crossville, Tennessee, for the Defendant-Appellant, James Leroy Poston.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Randall A. York, District Attorney General; and Gary McKenzie,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

     Plea Submission Hearing. Prior to Poston entering his guilty plea, the State
summarized the facts that formed the basis for the plea agreement:
          Judge, [on] April 24, 2008, the Tennessee Bureau of Investigation was
called out to investigate a homicide that occurred here in Cumberland County.
And the facts [upon which] the state would rely . . . if we went to trial [are
that] after interviewing several witnesses, the [Tennessee Bureau of
Investigation] had one . . . witness who was the . . . girlfriend, fiancee of the
. . . victim[, Jimmy Dion Conatser,] at the time[.] And her statement was that
the defendant had gotten into an argument with the victim . . . and that the
victim . . . had r[u]n outside of the home and was out in the yard when the
defendant . . . shot and killed him standing in the yard.

       So that was [the scenario in which] Mr. Poston did shoot and kill [the
victim] . . . where [the victim] was nowhere near or around him.

       Now that’s the state’s contention, that’s what we believe. However,
having said that, the difficulty that the state faces [is that o]ur proof is . . .
limited to a single witness. And we understand that the defense would attack
that witness based on . . . her history as well as . . . her relationship with the
victim at the time.

        The defendant would testify at trial . . . that there was an altercation,
that the victim was the aggressor in that altercation, that the defendant was in
fear of his life[,] and that he . . . shot and killed the victim in some form of
self-defense.

       The difficulty the state [has] is that there was blood found on the porch
area and in the immediate vicinity of the home that, if the blood was the
victim’s, which is very likely . . . , would corroborate what the defendant says.
The defendant also says . . . the victim tried to strike him with a two by four
[board,] and there was [a board] found on that porch . . . that [is] consistent
[with Poston’s version of the events]. So there’s some dispute as to what took
place and what happened between these individuals.

       Likewise, the victim’s prior criminal history would [probably be
admissible] . . . to show [that the victim is] the first aggressor. And the
defense and I have had plenty of conversations about this[,] and [the victim
had] prior assaultive[-]type convictions[,] and in fact the victim had just
recently got[ten] out of prison.




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             All of these things, and also taking into consideration . . . the
       defendant’s health and how he would appear at trial, puts the state at a
       disadvantage somewhat [in getting] the second degree [murder] conviction.

             [This has all] led to our . . . negotiated plea today for reckless homicide.
       I don’t know that anybody is happy with this, but given the factual
       circumstances and the evidence and the risk [of] going to trial for the
       defendant, we think this is an appropriate settlement.

        Sentencing Hearing. Chad McCaleb, an employee with the Tennessee Department
of Probation and Parole, testified that he prepared Poston’s presentence investigation report,
which was entered into evidence. This report established that Poston was a seventy-six-year-
old white male with no criminal history. The report also stated that Poston had a third grade
education, was married but separated from his wife, Wanda Poston, and lived with his son
and daughter-in-law prior to his incarceration for this offense. In the report, Poston reported
poor mental health because he could not “remember things half the time.” He also stated that
he was in poor physical health, had problems with his back, legs, heart, and eyes, took
multiple medications, and received disability benefits. McCaleb then read Wanda Poston’s
victim impact statement from the presentence report, in which she stated that “this incident
[in which her husband fatally shot her son1 ] nearly killed her” and that despite the fact that
she had “hoped for more than a . . . two[-]year sentence,” it was her desire that Poston serve
his entire sentence in confinement.

        Tommy Calahan, an agent with the Tennessee Bureau of Investigation, testified that
he was the lead investigator in Poston’s case. Upon arriving at the scene of the incident,
Agent Calahan obtained consent from Poston to search his home. During this search, Agent
Calahan discovered a revolver in Poston’s chair, and Poston told him that the gun was his and
that he had retrieved it from his bedroom during an argument with the victim. Poston also
informed Agent Calahan that the victim had been drinking, had thrown a chair and a wooden
board at him, and had called him a “son of a b----.” Finally, Poston told Agent Calahan that
he fired two warning shots before firing the third fatal shot at the victim. Agent Calahan said
that statements were also obtained from Poston’s wife and Tamara Underwood, the victim’s
girlfriend. He said that Underwood claimed she and the victim were about to get into their
car to leave Poston’s home when Poston retrieved his gun, walked to the front porch, and
shot the victim, who was approximately twenty to twenty-five feet away. However, Agent
Calahan said Wanda Poston offered a different version of the incident. Mrs. Poston said that
Poston and the victim began arguing because Poston would not allow the victim to use the
lawnmower while intoxicated. Mrs. Poston said that the victim and Underwood walked out

       1
           The victim in this case is the Defendant-Appellant’s stepson.

                                                     -3-
to their car, while Poston stayed inside the house. Poston and the victim continued to yell
at each other, and then Poston came outside with a gun in his hand. She also stated that
Poston fired a shot at the victim and that the victim threw two wooden boards at Poston,
although she was unsure about the sequence of these events. Agent Calahan stated that the
victim had a criminal history that included charges for attempted methamphetamine
distribution and a 1995 assault. He acknowledged that Poston immediately admitted that he
was responsible for the shooting. Agent Calahan also said that he observed blood drops on
Poston’s front porch that extended twenty-five feet to the location of the victim’s body,
which indicated that the victim had been shot while he was standing on the front porch.
Agent Calahan said that a chair was found at the scene, a wooden board was found on the
front porch, and a second wooden board was found in Poston’s living room. During the
sentencing hearing, the parties stipulated that the victim had a blood alcohol level of .10
percent at the time of the offense.

        Monica Arroyo, the victim’s cousin, read a statement during the sentencing hearing.
In it, she stated that Poston had taken away a loved one from her and her family. Arroyo
challenged Poston’s use in court of a wheelchair and an oxygen ventilator by asserting that
Poston typically did not need a wheelchair or ventilator. She asked that the court give Poston
the harshest sentence possible.

       James Richard (“Ricky”) Poston, testified that his father, the Defendant-Appellant,
had been a good father to him. He also stated that the victim was his step-brother and that
he and his step-brother were adults when their parents married. Ricky Poston said that he
loved his step-brother, the victim. He also said that his father began living with him after the
shooting because his father needed assistance going to his doctors appointments and
obtaining his prescriptions. He acknowledged that the victim was physically very strong.
He said that his father had shown signs of remorse and regret after the shooting and that he
often saw his father crying at the kitchen table at night.

        The Defendant-Appellant, James Leroy Poston, testified that he suffered bruises to
his right arm and right leg when the victim hit him with a wooden board during the incident.
Pictures of these bruises were entered into evidence. Poston then made the following
statement to the court:

               . . . I’d like to apologize to all of the family. I know I caused a lot of
       trouble. And I loved [the victim], I did, there ain’t [sic] no lie about it. If I
       hadn’t of [sic] loved him, I wouldn’t have [taken] care of him as long as I did,
       twenty something years. I [did] all I could do[,] and I [gave] him the money
       to pay . . . his light bill and [to] get his driver[’]s license. . . . And it’s, it’s just



                                                  -4-
       been hard on us, I think I’ve suffered. I don’t sleep at night, I don’t sleep at
       night. I walk the floors.

Poston said he would be seventy-seven years old within the month and asserted he was in
terrible health. He stated he shot the victim because the victim “started it all.” He also said
he was frightened of the victim. Poston said he was sorry the shooting occurred.

        During cross-examination, Poston acknowledged he became angry enough to get his
gun when the victim called him a “son of a b----[.]” He said he was sitting in his chair, and
the victim was sitting in his car outside, when the victim made this offensive statement to
him. In response, Poston retrieved his .38 caliber handgun and walked out on the porch, and
the victim threw a chair at him, which caused Poston to fall down. As he was on the ground,
Poston began firing the gun. Poston also admitted he was normally able to walk but was
sitting in a wheelchair because of a recent fall. He acknowledged he should receive some
punishment because he took the victim’s life.

        During the sentencing hearing, defense counsel informed the court that he and the
State had agreed to have letters from Poston’s doctor and a list of his medications admitted
as a summary of Poston’s health conditions. In these letters, Poston’s doctor asserted that
Poston suffered from severe cardiovascular disease that required an artery bypass graft in
2006 and two cardiac stents. In addition, she said that Poston has had “progressive
problems[,]” including the risk of bowel rupture, from his colostomy and bowel stent. The
doctor said that she discussed the possibility of hospice care for Poston’s long-term care. She
also said he suffered from stage three chronic kidney disease, congestive heart failure, rectal
bleeding, lung problems, and atrial fibrillation. Poston’s doctor opined that Poston was “an
extremely high risk case that would require close monitoring by physicians, lab[s], and
possible imaging.” She also opined that a discontinuation of his approximately thirty
medications would result in “certain death.” Although the State agreed to the admission of
the doctor’s statement and records, it argued that nothing in these documents made Poston
an inappropriate candidate for the Special Needs prison.

       Prior to determining the manner of service of the two-year sentence, the trial court
considered all of the information in section 40-35-210(b), including the evidence from the
sentencing hearing, the presentence investigation report, the victim impact statement, the
principles of the sentencing act, the arguments regarding sentencing alternatives, the nature
and characteristics of the criminal conduct involved in the case, the initial charge of second
degree murder, and the applicable enhancement and mitigating factors. It also considered
the victim’s blood alcohol level of .10 percent, the victim’s prior criminal history, and
Poston’s decision to retrieve a gun after the victim called him a “son of a b----.” The court
also noted that the defendant had the burden of establishing his suitability for full probation

                                              -5-
and had to show that probation would serve the best interest of the public and the defendant.

       The court also stated that Poston “deliberated” before committing the offense in this
case. However, it acknowledged that Poston could have made a self-defense claim had the
case gone to trial, especially given the fact that the victim was intoxicated and allegedly hit
Poston with a wooden board during the incident. Ultimately, the trial court found that
“[c]onfinement [was] necessary to avoid depreciating the seriousness of the offense or
confinement [was] particularly suited to provide an effective deterrence to others likely to
commit similar offenses.”

       At the conclusion of the sentencing hearing, the trial court denied all forms of
alternative sentencing and determined that Poston would serve his two-year sentence in the
Tennessee Department of Correction. Poston filed a timely notice of appeal.

                                         ANALYSIS

        Poston argues that the trial court erred in denying him an alternative sentence.
Although Poston initially contends that he was entitled to a statutory presumption that he was
a favorable candidate for alternative sentencing, he acknowledges in his reply brief that he
should only be considered a favorable candidate for alternative sentencing under the current
law. He also acknowledges that he bears the burden of proving his suitability for full
probation and contends that he has satisfied this burden. Pursuant to the factors in State v.
Blackhurst, 70 S.W.3d 88, 97 (Tenn. Crim. App. 2001), he argues that he has met his burden
of proving that he is a good candidate for full probation because he has no criminal history,
has been married for the past twenty-three years, has mild dementia, is currently disabled, has
debilitating physical health problems, has expressed remorse and accepted responsibility for
his crime, has fully cooperated with law enforcement, owns his own home, has family that
will take care of him as needed, has no history of drug or alcohol use, has a good reputation
in the community, had a consistent work history prior to becoming disabled, and was a good
father and loved the victim. Poston also argues that a probationary sentence will serve the
ends of justice and the best interest of both the public and the defendant. He claims that the
public’s interest weighs in favor of a probationary sentence because he has no criminal
history and little likelihood of re-offending. Moreover, he argues that his interest weighs in
favor of a probationary sentence because “[i]ncarceration runs the risk of so disrupting his
continued health care [that] he could die” and “[t]here is nothing to suggest that incarceration
is necessary to impress upon him the gravity of his actions.” Finally, Poston contends that
the nature of the offense does not support the application of Tennessee Code Annotated
section 40-35-103(1)(B).




                                              -6-
       In response, the State contends that although Poston’s offense classification and range
established his eligibility for an alternative sentence, he failed to satisfy his burden of proving
he was a suitable candidate for full probation. The State also argues that the trial court
properly determined that confinement was necessary to avoid depreciating the seriousness
of the offense pursuant to Tennessee Code Annotated section 40-35-103(1)(B). Upon
review, we disagree with the State and conclude that the two-year sentence of confinement
was improper in this particular case.

        On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). However, “the presumption of correctness which accompanies the
trial court’s action 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). This means that if the trial court followed the
statutory sentencing procedure, made adequate findings of fact that are supported by the
record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, this court “may not disturb the
sentence even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d
785, 789 (Tenn. Crim. App. 1991). The defendant has the burden of showing the impropriety
of the sentence. T.C.A. § 40-35-401(d), Sentencing Comm’n Comments. Because the trial
court improperly applied section 40-35-103(1)(B) in imposing a sentence of confinement,
our review is de novo without a presumption of correctness.

       Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). A trial court, when sentencing
a defendant or determining an alternative sentence, must consider the following:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;

       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

                                                -7-
       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

T.C.A. § 40-35-210(b) (2006); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002); State v.
Osborne, 251 S.W.3d 1, 24 (Tenn. Crim. App. 2007).

       Tennessee Code Annotated section 40-35-102(5) (2006) gives courts guidance about
the types of defendants who should be required to serve their sentences in confinement:

              In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the laws
       and morals of society, and evincing failure of past efforts at rehabilitation shall
       be given first priority regarding sentencing involving incarceration[.]

       Poston argues that he is a favorable candidate for alternative sentencing. Tennessee
Code Annotated section 40-35-102(6)(A) states that a defendant who does not require
confinement under subsection (5) and “who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary[.]” However, a trial
court “shall consider, but is not bound by, the advisory sentencing guideline” in section 40-
35-102(6)(A). T.C.A. § 40-35-102(6)(D). A trial court should consider the following when
determining whether there is “evidence to the contrary” that would prevent an individual
from receiving alternative sentencing:

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Id. § 40-35-103(1)(A)-(C); Ashby, 823 S.W.2d at 169.

       We note that the trial court’s determination of whether the defendant is entitled to an
alternative sentence and whether the defendant is a suitable candidate for full probation are
different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477

                                               -8-
(Tenn. Crim. App. 1996). Where a defendant is considered a favorable candidate for
alternative sentencing, the State has the burden of presenting evidence to the contrary. State
v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, the defendant has the burden of
establishing his suitability for full probation, even if the defendant is considered a favorable
candidate for alternative sentencing. Id. (citing T.C.A. § 40-35-303(b)).

       Here, Poston was eligible for probation because his sentence was ten years or less and
the offense for which he was sentenced was not specifically excluded by statute. T.C.A. §
40-35-303(a) (2006). The trial court shall automatically consider probation as a sentencing
alternative for eligible defendants; however, the defendant bears the burden of proving his
or her suitability for probation. Id. § 40-35-303(b). Accordingly, “the defendant is not
automatically entitled to probation as a matter of law.” Id. § 40-35-303(b), Sentencing
Comm’n Comments. Instead, the defendant must demonstrate that probation would serve
the ends of justice and the best interests of both the public and the defendant. State v.
Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citations omitted).

        When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, his present condition, including physical and mental condition, the
deterrent effect on the defendant, and the best interests of the defendant and the public. See
State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568
S.W.2d 285 (Tenn. 1978)); see also Blackhurst, 70 S.W.3d at 97. The court should also
consider the potential for rehabilitation or treatment of the defendant in determining the
appropriate sentence. T.C.A. § 40-35-103(5). In addition, the principles of sentencing
require the sentence to be “no greater than that deserved for the offense committed” and “the
least severe measure necessary to achieve the purposes for which the sentence is imposed.”
Id. § 40-35-103(2), (4). In addition, “[t]he potential or lack of potential for the rehabilitation
or treatment of the defendant should be considered in determining the sentence alternative
or length of a term to be imposed[,]” and “[t]he length of a term of probation may reflect the
length of a treatment or rehabilitation program in which participation is a condition of the
sentence[.]” Id. § 40-35-103(5).

         In this case, Poston agreed to a two-year sentence pursuant to his plea agreement. The
record shows that Poston fatally shot his adult step-son during an argument. Here, the trial
court, in imposing a sentence of total confinement, relied on section 40-35-103(1)(B), that
is, that “[c]onfinement [was] necessary to avoid depreciating the seriousness of the offense
or confinement [was] particularly suited to provide an effective deterrence to others likely
to commit similar offenses.” A review of the record shows that no proof was presented at
the sentencing hearing regarding the need to deter others from committing similar offenses

                                               -9-
pursuant to section 40-35-103(1)(B). See State v. Nunley, 22 S.W.3d 282, 286 (Tenn. Crim.
App. 1999) (holding that in order to use deterrence as a justification for confinement,
evidence must be presented indicating some special need for deterrence in that jurisdiction).
Accordingly, deterrence is an inappropriate justification for the imposition of a sentence of
confinement in this case.

       We must next consider whether confinement was justified based on the need to avoid
depreciating the seriousness of the offense. It is well established that an alternative sentence
may be denied based on the nature or circumstances of the offense where “the criminal act,
as committed, would be described as especially violent, horrifying, shocking, reprehensible,
offensive, or otherwise of an excessive or exaggerated degree; and . . . the nature of the
offense, as committed, outweighed all other factors” favoring an alternative sentence. State
v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); State v. Bottoms, 87 S.W.3d 95, 103 (Tenn.
Crim. App. 2001); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991).
Therefore, an alternative sentence may be denied pursuant to section 40-35-103(1)(B) where
confinement is necessary to avoid depreciating the seriousness of the offense because the
offense meets the Travis prerequisites. Upon de novo review without a presumption of
correctness, we conclude an alternative sentence is appropriate in Poston’s case because the
nature of the offense, although tragic, did not outweigh all other factors favoring an
alternative sentence. We also conclude that the record does not support the trial court’s
implicit determination that Poston failed to satisfy his burden of establishing that he is a
suitable candidate for full probation. See T.C.A. § 40-35-303(b).

        Viewing the record as a whole, we give weight to the fact that Poston has no criminal
history, is physically disabled, has significant health problems that require him to be regularly
seen by doctors and treated with approximately thirty prescriptions, has dementia, has
expressed remorse for his crime, has fully cooperated with law enforcement, has supportive
family members who help take care of him, has no history of drug or alcohol use, and had
a consistent work history prior to becoming disabled. We note that, if a defendant is “of ill
health and requires constant medical attention[,]” this may be a factor in favor of alternative
sentencing. State v. Thomas L. Matthews, No. 02C01-9704-CR-00158, 1998 WL 148317,
at *3 (Tenn. Crim. App., at Jackson, Mar. 31, 1998) (citing Ashby, 823 S.W.2d at 170),
perm. app. denied, (Tenn. Dec. 28, 1998). In addition, we note that a defendant’s claim of
innocence or self-defense should be considered by the trial court at sentencing. See State v.
Teague, 897 S.W.2d 248, 256 (Tenn. 1995) (“[A] defendant [in a capital case] has the right
to present at the sentencing hearing, whether by the jury which heard the guilt phase or by
a jury on resentencing, evidence relating to the circumstances of the crime or the aggravating
or mitigating circumstances, including evidence which may mitigate his culpability.”). Most
importantly, we give great weight to the fact that Poston is a good candidate for
rehabilitation. After reviewing these factors, we conclude that the trial court’s decision to

                                              -10-
impose a sentence of total incarceration is not supported by the record. See State v. Ballard
Eugene Anderson, No. 03C01-9902-CR-00084, 2000 WL 122218, at *8 (Tenn. Crim. App.,
at Knoxville, Jan. 26, 2000) (modifying the defendant’s four-year sentence of confinement
to a two-year sentence to be served on supervised probation where the court concluded that
neither the circumstances of the offense nor the need to deter others from committing a
similar crime applied). Therefore, we sentence Poston to serve his two-year sentence on
supervised probation.

                                     CONCLUSION

       Upon review, we reverse the judgment of the trial court and remand the case for entry
of a judgment sentencing Poston to serve his two-year sentence on supervised probation.




                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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