              IN THE TENNESSEE COURT OF CRIMINAL APPEALS
                           AT KNOXVILLE
                         Assigned on Briefs January 21, 2016

              STATE OF TENNESSEE v. STEVEAN WILSON

                   Appeal from the Criminal Court for Knox County
                          No. 103214   Scott Green, Judge


                 No. M2015-01446-CCA-R3-CD – Filed April 22, 2016


CAMILLE R. MCMULLEN, J., dissenting.

        I dissent from the majority conclusion affirming the trial court’s imposition of
confinement in this case. The trial court did not engage in any findings of fact to support
its determination of confinement as required by law. See Tenn. Code Ann. § 40-35-
103(1)(A)-(C) (2014) (whether confinement is necessary to protect society by restraining
a defendant who has a long history of criminal conduct; whether 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 measures less restrictive than confinement have frequently or recently been
applied unsuccessfully to the defendant); see also Shannon Ann Maness and Daryl
Wayne Maness, No. W2012-02655-CCA-R3-CD, 2014 WL 350429, at *16-17 (Tenn.
Crim. App. Jan. 23, 2014) (noting that the trial is still required to place on the record its
reasons for imposing the specific sentence and remanding for new sentencing hearing
because the record did not support the trial court’s finding of confinement based on
deterrence); State v. Robert Joseph Harr, No. W2011-02735-CCA-R3CD, 2013 WL
5422801, at *10 (Tenn. Crim. App. Sept. 27, 2013) (Tipton, P.J., concurring and
dissenting) (noting that he did not believe “our supreme court intended in Bise or Caudle
to do away, in wholesale fashion, with Tennessee jurisprudence developed over the last
thirty years upon which the Sentencing Act is based and in which the Act’s provisions are
interpreted”).

        The Defendant does not have a long history of criminal convictions and, although
he had been previously placed on judicial diversion, this is not equivalent to measures
less restrictive than confinement that have been frequently or recently applied
unsuccessfully. There is nothing in the record that shows his diversion, which was
completed in 2013, was violated. At most, the trial court appears to have imposed
confinement based solely on deterrence. When determining whether to impose
confinement based on deterrence, our supreme court has provided a “non-exhaustive” list
of factors for trial courts to consider, including: (1) whether other incidents of the
charged offense are increasingly present in the community, jurisdiction, or in the State as
a whole, (2) whether the defendant’s crime was the result of intentional, knowing, or
reckless conduct or was otherwise motivated by a desire to profit or gain from the
criminal behavior, (3) whether the defendant’s crime and conviction have received
substantial publicity beyond that normally expected in the typical case, (4) whether the
defendant was a member of a criminal enterprise, or substantially encouraged or assisted
others in achieving the criminal objective, and (5) whether the defendant has previously
engaged in criminal conduct of the same type as the offense in question, irrespective of
whether such conduct resulted in previous arrests or convictions. State v. Hooper, 29
S.W.3d 1, 10-12 (Tenn. 2000). Moreover, “the record must contain some proof of the
need for deterrence before a defendant, who is otherwise eligible for probation or other
alternative sentence, may be incarcerated.” Id. at 9. Finally, “common sense tells us that
we may have less ability to deter crimes which are the result of provocation, sudden and
extreme passion[.]” Id. Here, the trial court failed to engage in any meaningful analysis
of the Hooper factors. There is nothing in the record, other than the trial court’s fleeting
reference to the video, showing that there are similar crimes in Knoxville or Tennessee as
a whole or that the Defendant’s incarceration would somehow deter others similarly
situated not to commit an aggravated assault. Although the State introduced photos of
the Defendant displaying gang signs and a shotgun, there is also nothing in the record
showing that he was in fact a gang member, that he participated in past or present
criminal gang activity, or that the instant offense was for the purpose of promoting
criminal gang activity.

       The trial court’s inadequate findings of fact and failure to comply with the law are
apparent on the record. Ordinarily, I would recommend remanding this case for a new
sentencing hearing. However, the trial court denied the Defendant’s request for a bond
pending appeal, and the Defendant has been in custody since April 10, 2015.
Consequently, I would order the Defendant to be released and the remainder of his six-
year sentence to be served on probation.



                                          __________________________________
                                          CAMILLE R. McMULLEN, JUDGE
