         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      July 23, 2002 Session

                   STATE OF TENNESSEE v. GABOR PALASTI

                 Direct Appeal from the Criminal Court for Hamilton County
                           No. 232185    Douglas A. Meyer, Judge



                                  No. E2001-01642-CCA-R3-CD
                                         April 10, 2003

The defendant, Gabor Palasti, was convicted upon his pleas of guilty to the charges of vehicular
assault and three counts of reckless endangerment. He originally received a four year effective
sentence with 11 months, 29 days of incarceration followed by probation. This was ultimately
altered by the trial judge to require that the defendant serve six (6) months in confinement with thirty
days of continuous confinement followed by five months of work release and then supervised
probation. In this appeal the defendant contends he should have received full probation for these
offenses and he cites numerous alleged deficiencies in the trial court’s sentencing procedures. We
find that in sentencing the defendant the trial court failed to make appropriate findings on the record
and that therefore our review of the defendant’s sentence is de novo without a presumption of
correctness. Nevertheless, we find that the record contains sufficient evidence from which this Court
concludes that six (6) months confinement of the defendant is appropriate. However, we believe the
entire confinement should be served on work release. We therefore AFFIRM the decision of the trial
court with the modification that the entire period of incarceration be served on work release.

          Tenn. R. App. P. 3; Judgment of the Trial Court is Affirmed as Modified.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G. RILEY,
JJ., joined.

William L. Brown and Travis R. McDonough, Chattanooga, Tennessee, for appellant, Gabor Palasti.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General;
Bill Cox, District Attorney General; and Thomas E. Kimball, Assistant District Attorney General
for appellee, State of Tennessee.
                                                       OPINION

                                                  Factual Background

        In September of 1999 the City of Chattanooga held a festival called Wine Over Water. The
defendant, his wife and some friends attended the festival. While at the festival the defendant
purchased two glasses for $50.00. This entitled he and his wife to sample wine from 384 vendors.
After sampling several of the offered wines the defendant became intoxicated.

        An acquaintance at the festival invited the defendant to sit on a golf car and rest. The cart
started and the defendant, who did not know how to operate the vehicle, ran the cart through three
or four tables injuring four bystanders. As a result of this incident the defendant pled guilty to one
count of vehicular assault and three counts of reckless endangerment.1

        At the original sentencing hearing on June 11, 2001, the defendant testified that he is a
Hungarian immigrant who came to the United States in 1972. He moved to Chattanooga in 1974
and in 1976 he went to work for Olan Mills. He maintained that his actions were unintentional and
that the incident would stay with him financially and emotionally for the rest of his life.2 He
acknowledged that his actions were wrong and he apologized to the victims who were injured.

         In addition to the defendant, Ms. Inez Millwood, the defendant’s supervisor at Olan Mills,
testified that the defendant was a good employee. He had worked at Olan Mills for over 25 years
and had never been a problem.

       Following this hearing the trial court sentenced the defendant to a terms of four years. He
was to serve 11 months, 29 days incarceration with the remainder of his sentence on supervised
probation.

       On June 26, 2001, the defendant filed a motion for the trial court to reconsider the sentence.
He specifically asked that the trial court drop any requirement of actual incarceration. On October
29, 2001, a hearing was held on this motion.

        At the October 29 hearing Kristie Jackson, one of the victims in the case, testified that she
and her husband were working a booth at the wine festival when she heard her husband suddenly
shout. When she turned she saw the defendant and the golf cart coming at her. Ms. Jackson
indicated that moments earlier she had observed the defendant start the cart and plow through some
tables. She stated that the defendant was smiling the entire time. The defendant knocked down a
friend of Ms. Jackson and pushed both her and the friend against the side of a bridge. Ms. Jackson


         1
          The defendant was originally also charged with D.U.I., but the State dismissed that charge as part of the plea
agree ment.

         2
             The victims in the case sued Mr. Palasti for damages arising out of the incident.

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heard her chest pop. She was then dragged to the center of the bridge because her shoe had become
attached to the cart’s axle. The defendant then knocked down two other festival goers on the other
side of the bridge.

        Although x-rays showed Ms. Jackson’s back was normal, she stated that as a result of her
injuries she suffered five damaged disks in her back, could no longer drive without pain nor sit for
extended periods. She had a great deal of difficulty getting comfortable. Her business lost $1865
in merchandise and other damage.

        The defendant again testified in his own behalf. He stated that except for a parking ticket in
1975 or 1976, he had never been in trouble. He denied that he was laughing during the incident but
was rather panicked when the cart began to move. He testified he could not remember what
happened after the cart began to move. Mr. Palasti told the court that if forced to go to jail, he would
lose his job and would not be able to pay damages or restitution to the victims.

        The defendant’s wife Suzanne Palasti, testified that the defendant is a good man, a good
husband, and her sole source of support. She cannot drive nor operate office equipment. She
indicated that the defendant had expressed great remorse about the incident.

        The defendant’s employer, Olan Mills, II, testified that the defendant was an exemplary
employee and an honest person. If the defendant were sent to jail for more than three days under
company policy he would be forced to discharge the defendant from employment. Mr. Mills offered
to assist in any way he could to help the defendant in abiding by any requirements of an alternative
sentence.

        Following this hearing the trial court found that in order to avoid depreciating the seriousness
of the offense and to provide an effective deterrence to others likely to commit similar offenses, the
defendant should serve 30 days in actual continuous confinement, followed by five months of work
release and the remainder of the four year sentence on supervised probation. From this sentence the
defendant brings the instant appeal asking this Court to grant him full probation.

                                         Standard of Review

        When determining a defendant’s specific sentence or the appropriate combination of
sentencing alternatives that should be imposed on a defendant, a court must consider a variety of
factors including: evidence presented at the sentencing hearing; the presentence report; the principles
of sentencing and arguments as to sentencing alternatives; the nature and characteristics of the
offense; statements made by the offender; as well as, evidence and information offered by the parties
on the enhancement and mitigating factors in Tenn. Code Ann. §§ 40-35-113 and 40-35-114. Tenn.
Code Ann. § 40-35-210. When a court does consider each of the required factors in determining a
sentence and amply notes its findings on the record, review of that sentence is de novo with a
presumption that the court’s determinations are correct. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).


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        In addition, sentences involving confinement should be based on three primary
considerations: 1) that confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct; 2) that confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited to provide an effective deterrence to
others; or 3) that measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1).

         A defendant who is a standard offender convicted of a Class C, D, or E felony is presumed
to be a favorable candidate for alternative sentencing including probation. Tenn. Code Ann. § 40-35-
102(6). However, the burden of establishing suitability for probation lies with the defendant. Tenn.
Code Ann. § 40-35-303(b). On appeal, a defendant seeking full probation bears the burden of
showing that the sentence imposed is improper and that full probation will be in the best interests
of both the defendant and the public. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim App.
1995).

        In the instant case the defendant asserts that the trial court failed to make the required
findings of fact on the record so as to accord the sentence in this case the presumption of correctness
prescribed by Tennessee Code Annotated section 40-35-401(d). The State concedes that the record
is bereft of such findings, but maintains that the record is sufficient to uphold a sentence involving
30 days confinement. Given the state of the record we agree that we should review the sentence de
novo on the record without the presumption of correctness.

        The defendant is presumptively entitled to some form of alternative sentencing. Tenn. Code
Ann. § 40-35-102(6). However, the defendant still maintains the burden of showing his suitability
for full probation. Bingham, 910 S.W.2d at 456. We are unpersuaded that full probation is
warranted in this case.

         Due to his apparent extreme intoxication the defendant caused rather serious injuries to at
least one of the victim in this case and minor injuries to others. In addition, he caused at least two
of the victims to suffer financial loss. Moreover, he placed a number of people at great risk of injury
through his actions at what should have been a peaceful and safe community event. We agree with
the trial judge that a denial of complete probation is necessary to avoid depreciating the seriousness
of the offenses. In addition, from this record it appears that this case received extensive publicity
in the community. Such a consideration is appropriate when sending a deterrent message to potential
future lawbreakers of a similar nature that such conduct will not be tolerated. See, Tenn. Code Ann.
§ 40-35-103(1)(B); State v. Hooper, 29 S.W.2d 1, 11 (Tenn. 2001).

        However, the defendant is in otherwise admirable person with an excellent work history and
a great potential for rehabilitation. He is 57 years old, is partially disabled, has worked steadily with
the same company for over 26 years and is the sole supporter of his wife. It appears from the record,
and the trial judge apparently believes, that the defendant is genuinely remorseful for his actions.
Testimony at the second sentencing hearing clearly established that should the defendant be required
to miss more than three days of work because of his incarceration he will lose his long time


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employment. Given, these factors we are of the opinion that the trial court’s requirement of thirty
days continuous confinement is not in the best interests of the defendant, the community, nor the
victims, who presumably want to be paid the restitution ordered by the trial court and any other civil
damages they may recover. Consequently, we believe the sentence should be modified to require
the original six months incarceration to be served entirely on work release followed by the period
of supervised probation ordered by the trial court. We are hopeful that such a modification will
allow the defendant to maintain his employment and fulfill his financial obligations while sending
a message to both he and the community that behavior such as that exhibited in this case will not be
treated lightly.

        Accordingly, the judgment of the trial court is affirmed as modified and the case is remanded
to the Criminal Court of Hamilton County for entry of judgment in accordance with this opinion and
the collection of costs.



                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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