          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE          FILED
                                                 December 23, 1997
                         MARCH 1996 SESSION
                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk



STATE OF TENNESSEE                 )C.C.A. No. 03C01-9510-CR-00316
                                   )
     Appellee,                     ) Hamilton County
                                   )
V.                                 ) Hon. Douglas A. Meyer, Judge
                                   )
WESLEY CHRISTOPHER                 ) (Voluntary Manslaughter)
PITTMAN

     Appellant,




FOR THE APPELLANT:                 FOR THE APPELLEE:

Jerry H. Summers                   Charles W. Burson
Attorney at Law                    Attorney General and Reporter
500 Lindsay Street                 Darian B. Taylor
Chattanooga, Tn. 37403             Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, Tn. 37243

                                   William H. Cox
                                   District Attorney General
                                   H. C. Bright
                                   Assistant District Attorney
                                   Courts Building
                                   Chattanooga, Tn. 37402




     OPINION FILED: ______________________




     AFFIRMED IN PART, MODIFIED IN PART AND REMANDED




     CHARLES LEE, Special Judge
                                 OPINION




       The defendant, Wesley Christopher Pittman, was originally indicted for

first degree murder in the shooting death of the victim Johnny Labron W alker.

Upon agreement with the state, the defendant was allowed to enter a best

interest, nolo contendere plea to a reduced charge of voluntary

manslaughter. The Defendant was sentenced by the trial court to the

maximum sentence of six years as a Range I Standard Offender. All forms of

alternative sentencing were denied. The defendant now appeals both the

length of his sentence and the denial of alternative sentencing.



                         I. FACTUAL BACKGROUND



       This case represents one of many instances in which a trial judge is

placed in the unenviable position of deciding the facts of a case in a

sentencing hearing without the benefit of a full-blown trial. The result is a

record that does not present a unified set of facts, but instead paints two

different pictures in such stark contrast that they could have arisen from

entirely separate lawsuits.



       The state by its indictment and its position during the sentencing

hearing presents a picture of perhaps first degree murder and more likely

second degree murder. The defendant presents a picture of at best an

accident and at worse a reckless homicide. Rather than flush out the facts in

a trial, the state and the defendant compromised in a plea bargain thereby

thrusting upon the trial judge the duty of "doing justice" in a sentencing

hearing.




                                        2
       During the sentencing hearing , the trial court heard from only one

witness, the defendant, regarding the circumstances surrounding the death of

the victim. The defendant testified that the shooting of the victim was an

accident. However, the parties agreed to introduce as exhibits statements

taken from various individuals who purported to witness the events that led to

the death of the victim. From these statements one can glean that the facts

leading to the death of the victim are truly tragic.



       The victim and the defendant were both teenagers on February 12,

1994 and had been friends. Each were not living under any direct parental

supervision. The victim had been asked to leave his home and had no place

to live. The defendant was living with several other young people in the

home of his slightly older sister and had agreed that the victim could stay in

the house until he could find a more permanent home. On the tragic night of

February 12, 1994, the defendant had consumed a considerable amount of

alcohol. During the late evening hours several young people congregated at

the residence of the defendant. In addition to alcohol, other drugs were

available to those present.



       During the course of the evening, at least two firearms were displayed.

The defendant had a hand gun which he had acquired approximately one

week before. He was reported to have pointed this gun at several persons at

the residence. Never was the victim reported to have possessed either of the

firearms. With several other persons in the room the defendant is reported to

have aimed the firearm directly at the unarmed victim. The firearm

discharged striking the victim in the head. There is some dispute as to

whether the two had exchanged words before the shooting.




                                         3
                         II. LENGTH OF SENTENCE



    Appellate review of a sentence is de novo, with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. §

40-35-401(d) (1990 Repl.). The appellant has the burden of establishing that

the sentence imposed by the trial court was erroneous. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991); State v. Fletcher, 805 S.W.2d 785, 786

(Tenn. Crim. App. 1991). In determining whether the appellant has carried

this burden, this court must consider: (1) The evidence received at 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 enhancement and mitigating factors in §§

40-35-113 and 40-35-114; and (6) any statement the defendant wishes to

make in his own behalf about sentencing. Tenn. Code Ann. § 40-35-210

(1995 Supp.). The minimum sentence within the range is the presumptive

sentence. If there are enhancing and mitigating factors, the court must start

at the minimum sentence in the range and enhance the sentence as

appropriate for the enhancement factors and then reduce the sentence within

the range as appropriate for the mitigating factors.




                                       4
       The trial court found the following enhancing factors to be present: (1)

that the offense involved a victim and was committed to gratify the

defendant's desire for pleasure or excitement; (2) that the defendant

possessed or employed a firearm during the commission of the offense; (3)

that the defendant had no hesitation about committing a crime when the risk

to human life was high.



       In finding these enhancing factors the trial court implicitly rejected the

defendant's theory of accidental shooting. However, the trial court made no

explicit finding of fact either accepting or rejecting the defendant's theory of

reckless homicide or the state's theory of murder.



       Since the defendant pointed a firearm at not only the victim but others

during the evening, a logical conclusion to explain his actions was the

excitement such actions generated.



       The use of a firearm was not an element of the offense. See State v.

Shelton, supra; State v. Junior Belcher, Hamblen County No.

03-C-01-9110-CR-00352 (Tenn. Crim. App., Knoxville, April 10, 1992)

(shotgun used to kill the victim); State v. Christopher Coffee, Davidson

County No. 01-C-01-9103-CR-00066 (Tenn. Crim. App., Nashville, October

10, 1991) (pistol used to kill the victim); State v. James K. Boykin, Jr..,

Overton County No. 01-C-01-9106-CC-00174 (Tenn. Crim. App., Nashville,

October 2, 1991) (assault rifle and shotgun used to kill the victim); State v.

Jerry E. Cook, Monroe County No. 117 (Tenn. Crim. App., Knoxville, August




                                         5
16, 1989), per. app. denied, November 6, 1989 (butcher knife used to kill the

victim).



       Finally, where a high risk to human life is established with facts

separate from those necessary to establish an element of the offense, the

enhancement factor is not an essential element of the offense and may be

applied if supported by the facts. State v. Lambert, 741 S.W.2d 127, 134

(Tenn. Crim. App. 1987). Several other individuals were in close proximity to

the victim at the time the firearm was discharged.



       The facts of this case fully support the trial court's finding as to each

enhancement factor.



       As mitigating factors the trial court found (1) that because of the

defendant's youth he lacked substantial judgment in committing the offense;

(2) the defendant had no criminal record and (3) the defendant displayed

remorse for his actions.



       The defendant complains that the trial court inappropriately weighed

the enhancing factors in relation to the mitigating factors in meting out the

maximum sentence. It is apparent from the record that the trial court gave

great weight to the circumstances of the use of a firearm in this case. The

weight to be given each factor is left to the discretion of the trial judge. State

v. Shelton, supra; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

In determining an appropriate sentence, the court is not bound by the offense

for which the defendant was convicted, except as to the possible range, and




                                         6
may look to the "nature and characteristics" of the defendant's actual

misconduct in setting a sentence within that range. State v. Hollingsworth,

647 S.W.2d 937, 939 (Tenn. 1983).



       We find no abuse of discretion in the trial court's decision that the

enhancing factors present in this case so far outweigh the mitigating factors

as to warrant the maximum sentence of six years.



                 III. DENIAL OF ALTERNATIVE SENTENCE



       While the trial court explained its reasons for setting the range of

sentence on the record the same cannot be said for explaining its rationale

for denying all forms of alternative sentencing. Regarding alternative

sentencing the trial court stated:


         I have considered, as I must under the law, alternative forms of
   punishment and I agree with Mr. Barry that we do have to educate
   people, but first we have to have these people accept their punishment
   for what they've done.

       Earlier the trial court noted:

          And the one that Mr. Bright has touched on is the one that does
   come closest of what has to be done by the courts of this state if we
   are going to get a handle on the use of guns by young people and that
   is confinement is necessary to avoid depreciating the seriousness of
   the offense, and also confinement in these type cases where young
   people use guns is to provide an effective deterrent to others likely to
   carry guns. So it is -- that is the thing that this court has to consider.

       However, regarding the defendant the court observed:

           I don't really think we have to lock him up today to restrain him.
   I don't think that he'll hurt anybody else, and as I say, its not necessary
   to restrain him but I do believe that it is necessary to confine him.




                                        7
       From its comments, clearly the trial court found the need for general

deterrence alone was justification for the denial of alternate sentencing. It is

however what the trial court did not say which creates difficulty for this

reviewing court.



       Deterrence can rarely be the sole reason for the denial of an alternate

sentence. State v. Cummings, 868 S.W.2d 661 (Tenn. Crim. App. 1992);

State v. Hartley, 818 S.W.2d 370 (Tenn. Crim. App. 1991). Because it is a

factor in every criminal case, the denial of probation or any other alternative

sentence based upon deterrence alone must be supported by evidence

indicating some special need or consideration relative to that jurisdiction

which would not be addressed by the normal deterrence inherent in any

criminal penalty. State v. Jenkins, 733 S.W.2d 528, 535 (Tenn. Crim. App.

1987); State v. Vance, 626 S.W.2d 287, 290 (Tenn. Crim. App. 1981); State

v. Horne, 612 S.W.2d 186, 187 (Tenn. Crim. App. 1980).



       Denial of probation is occasionally justified solely upon the

circumstances of the offenses when they are of such a nature as to outweigh

all other factors favoring probation. Tenn. Code Ann. § 40-35-103(1)(B)

(1991); State v. Fletcher, supra. Before the nature and circumstances of the

offense alone may justify the denial of probation, the crime must be

"especially violent, horrifying, shocking, reprehensible, offensive, or otherwise

of an excessive or exaggerated degree." State v. Travis, 622 S.W.2d at 534.



       In making sentencing decisions trial judges may look to the offense as




                                        8
it was committed, not to textbook definitions of the crime, State v. Ford, 643

S.W.2d 913, 915 (Tenn. Crim. App. 1982), and may "look behind [a] plea

bargain and consider the true nature of the offenses committed." State v.

Hollingsworth, supra.



         The record is silent regarding some special need or consideration

relative to the jurisdiction of the trial court. Further the trial court made no

finding that this offense was especially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated

degree. Nor did it suggest that it accepted the state's theory of the offense

thereby giving it the authority to look behind the plea bargain.



         Because the record does not affirmatively show that the trial court

considered the sentencing principles and all relevant facts and

circumstances, our review of the sentence as it relates to alternative

sentencing is de novo without a presumption of correctness. State v. Ashby,

supra.



         The defendant has been convicted of a Class C Felony. Relying on

Tenn. Code Ann. § 40-35-102(6) (1991 Supp.), he argues that he is

presumed to be a favorable candidate for a sentencing alternative to

confinement, absent evidence to the contrary. However, he fails to take

Tenn. Code Ann. § 40-35-102(5) into account.



         Tenn. Code Ann. § 40-35-102(6) reads as follows:

   A defendant who does not fall within the parameters of subdivision (5)
   and is an especially mitigated or standard offender convicted of a



                                         9
   Class C, D or E felony is presumed to be a favorable candidate for
   alternative sentencing options in the absence of evidence to the
   contrary. (emphasis added)



      It is apparent from the plain language of the statute that not all

mitigated or standard offenders who have committed a Class C, D, or E

felony are presumed candidates for alternative sentencing. If the offender

falls within the parameters of subdivision (5), he or she does not enjoy the

presumption.



      Tenn. Code Ann. § 40-35-102(5) reads as follows:



   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.



          In considering whether one falls into the parameters of

   subsection (5), Judge Hayes noted,"This means that the defendant

   cannot have a criminal history evincing either "clear disregard for the

   laws and morals of society" or "failure of past efforts at rehabilitation."

   State v. Bingham, 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995),

   perm. to appeal denied, (Tenn. 1995)(citing State v. Bonestel, 871

   S.W.2d 163, 167 (Tenn. Crim. App. 1993). In addition to the two

   factors cited by Bingham the statute provides that those offenders

   committing "the most severe offenses" may not be eligible for the

   presumption. Therefore, if an offender has committed (1) a most

   severe offense or (2) possesses a criminal history evincing a clear



                                       1 0
disregard for the laws and morals of society or (3) a history evincing

failure of past efforts at rehabilitation, he or she is not statutorily

presumed to be eligible for alternative sentence.



       The question of what constitutes a most severe offense for

purposes of determining if an offender is entitled to the presumption of

alternative sentencing has not been addressed by this court. The

state has previously argued that in certain cases, an offender should

automatically be denied alternative sentencing because of the serious

nature of an offense absent a showing of exceptional circumstances.

See generally Bingham, supra; State v. Robert Allen Torgeson, Giles

County No. 01-C-01-9312-CC-00415 (Tenn. Crim. App., Nashville,

October 25, 1994); State v. Michael T. Sullivan and Simone T.

Summers, Davidson County No. 01C01-9302-CR-00053 (Tenn. Crim.

App., Nashville, October 16, 1993;) State v. Beverely W annel George,

Knox County No. 03C01-9207-CR-00248 (Tenn. Crim. App., Knoxville,

January 7, 1993. These and other cases stand for the proposition that

an offender may not in most cases be denied probation based solely

on the nature of offense. They do not, however, address the question

of whether the offender may be denied the presumption for alternative

sentencing based upon the nature of the offense.



       Some guidance may be found in determining what may

constitute a severe offense in the context of Tenn. Code Ann. § 40-35-

102(5) from other cases in which complete alternative sentencing has

been denied. In State v. Butler, 880 S.W.2d 395 (Tenn. Crim. App.




                                      1 1
   1994) a case similar to appellant's case, Judge Tipton observed that

   "[T]he voluntary combining of intoxication with dangerous

   instrumentalities is a matter of serious public concern and the

   defendant's conduct created sufficiently serious circumstances so as

   to deny full probation." One may conclude that the taking of a life

   which resulted from the combining of intoxicants and deadly weapons

   is a most severe offense.



          In his dissent in State v. Robert Allen Torgeson, supra, Judge

   Wade seemed to go even further:



   Even though our current statute was enacted in 1989, the case law
   established prior to that date has consistently been used for guidance.
   Among the most important of those principles is that extraordinary
   circumstances must be shown in order to justify a grant of probation
   when a human life has been taken as the result of a criminal offense.
   The nature and circumstances of the crime, even if a Class E felony,
   are often so reprehensible as to militate against the grant of probation.
   Denial of probation may be based solely upon the circumstances of
   the offense when they are of such a nature as to outweigh all other
   factors favoring the grant. (citations omitted)



       The defendant in this case intentionally used a deadly weapon while

under the influence of an intoxicant that resulted in the senseless loss of

human life. While we do not find this to be an intentional killing, we do find

the circumstances of this tragedy to be such as to go beyond mere criminal

negligence. This is a most severe offense as envisioned by the legislature in

Tenn. Code Ann. § 40-35-102(5). Even though the defendant has no

appreciable criminal record and neither are there indications of failure of past

efforts at rehabilitation, because he has committed a most severe offense, he

is not presumed to be a candidate for alternative sentencing.



                                       1 2
    The burden of proof in establishing suitability for probation remains with

the defendant. State v. Russell, 773 S.W.2d 913 (Tenn. 1989); Frazier v.

State, 556 S.W.2d 239 (Tenn. Crim. App. 1977); Tenn. Code Ann. §

40-35-303(b). Among the factors to be considered are: (1) the nature and

circumstances of the offense; (2) the defendant's criminal record, social

history and present condition; and (3) the deterrent effect upon and best

interest of the defendant and the public. State v. Grear, 568 S.W.2d 285

(Tenn. 1978).




       Militating in favor of alternative sentencing are the facts that the

defendant is nineteen years old and has no prior criminal history either as an

adult or as a juvenile. Although he dropped out of school, he has taken the

initiative of obtaining a G.E.D. and expressed a desire to continue his

education through vocational training. He is in fair health but he has received

some mental health counseling because of this offense. His employment

history is sporadic. However, because of his age he has had insufficient time

to display any stability associated with an employment history. He appears

extremely remorseful over his actions. He has demonstrated his ability to

conform his conduct consistent with any orders of the court in that he has

been on house arrest as a condition of his bond without event.



        Although the defendant presents proof that he is amenable to

rehabilitation, still we can not ignore that his acts resulted in the senseless

loss of human life. Accordingly, we determine that the defendant shall be




                                        1 3
confined in the County Workhouse for nine months and the remainder of his

sentence shall be suspended and served upon supervised probation for a

period of ten years. The first two years of probation is to be intensive

probation should that program be available. In addition to any other

reasonable conditions of probation imposed by the trial court, the defendant

shall not consume alcohol in any form during his probation and shall be

responsible for the reasonable funeral expenses of the victim as determined

by the trial court. Furthermore, the defendant shall perform two hundred

hours of public service work. We suggest but do not make a condition that

this public service work be in the form of presentations to youth groups on the

dangers of combining alcohol and firearms. Eligibility, if any, for other

programs or work release during confinement or for earlier release from

confinement shall be determined by the trial court upon proper motion.



    The sentence is affirmed, but modified and the case is remanded to the

trial court for entry of an appropriate judgment in accordance with this

opinion.


                                   _____________________________
                                   Charles Lee, Special Judge

CONCUR:



____________________________
Paul G. Summers, Judge



____________________________
Joseph M. Tipton, Judge




                                       1 4
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE                      FILED
                       MARCH 1996 SESSION
                                                                    December 23, 1997

                                                                    Cecil Crowson, Jr.
                                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,                        )
                        )
    Appellee,           )                  No. 03C01-9510-CR-00316
                        )
                        )                  Hamilton County
v.                      )
                        )                  Honorable Douglas A. Meyer, Judge
                        )
WESLEY CHRISTOPHER PITTMAN,                )        (Voluntary Manslaughter)
                        )
    Appellant.          )



                                 CONCURRING OPINION



       I concur in all respects, save one, with the majority opinion. The majority opinion

indicates that there is not a presumption for alternative sentencing if, to begin with, the

offense is a “most severe” one or if the defendant possesses a criminal history evincing

“clear disregard for the laws” or “failure of past efforts at rehabilitation.” See T.C.A. §

40-35-102(5). I acknowledge that T.C.A. § 40-35-102(6) reads that way when viewed

only in conjunction with subsection (5). However, given the developed case law relying

on the very similar factors provided for imposing confinement under T.C.A. § 40-35-

103(1) to rebut the presumption, there is no reason to change the analysis presently

being used.



       In fact, the majority opinion’s analysis changes nothing in practice. This is

because whether the factors are viewed to foreclose the use of the presumption or to

rebut the presumption already applied, the burden of going forward with the relevant

proof and the ultimate result will always be the same. That is, the state is always going

to have to show that the evidence proves one or more of the confinement factors --


                                               15
whether viewed under -102(6) or -103. And once such is proved, alternative

sentencing, as a presumption, is not going to exist.



      Thus, I believe that State v. Ashby, 823 S.W.2d 166 (Tenn. 1991), provides the

proper means by which the trial court should determine, and the appellate court should

review, whether alternative sentencing is appropriate in any given case. Otherwise, I

concur in the majority opinion.



                                         __________________________
                                         Joseph M. Tipton, Judge




                                           16
