         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     July 27, 2004 Session

                    STATE OF TENNESSEE v. L.H. CUTSHALL

                     Appeal from the Criminal Court for Sullivan County
                             No. S46,932 R. Jerry Beck, Judge



                     No. E2003-02240-CCA-R3-CD - September 16, 2004


On November 13, 2002, the defendant, Leonard H. Cutshall, was indicted by the Sullivan County
Grand Jury for (1) transportation of untaxed beer in excess of 100 cases and (2) depriving the State
of lawful revenue, both Class E felonies. The defendant pled guilty to these charges at a hearing held
on April 21, 2003. As part of the plea agreement, the defendant was to be sentenced to two years
as a Range II offender for each count and pay a fine of $2,000 for each count. In addition, the
defendant was ordered to pay the State $511.27 in lost revenue. At a hearing held on September 15,
2003, the trial court denied the defendant alternative sentencing and probation. The defendant has
appealed that decision to this Court. We have found no error on the part of the trial court.
Therefore, we affirm the decision of the trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT , JR., JJ., joined.

Frank L. Slaughter, Jr., Bristol, Tennessee, for the appellant, L. H. Cutshall

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General;
Greeley Wells, District Attorney General; and Rebecca Davenport, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                            OPINION

                                        Factual Background

       The defendant, Leonard H. Cutshall, owned two taverns located in Greene County, Tennessee
and one tavern located in North Carolina. On August 5, 2002, an agent of the Virginia Alcoholic
Beverage Commission contacted Agent John Hones of the Tennessee Department of Revenue
concerning a Tennessee resident who had been making large purchases of beer in Virginia and then
transporting the beer into Tennessee. The purchases were being made at a Wal-mart in Bristol,
Virginia. In a seven week period, the defendant had purchased over $21,000.00 worth of beer. A
description of a black Dodge van and a license plate number was also furnished to the agent.

        As a result of the information given to them by the Virginia agent, the Tennessee agents
obtained the name of the defendant. They discovered that the defendant had suffered a previous
seizure of untaxed alcoholic beverages in 2000, and had been stopped in Kentucky by the Alcohol
Beverage Commission agents in May of 2001 with three hundred cases of beer, apparently bound
for Tennessee.

        Based on the defendant’s prior purchases, the Virginia agents expected the defendant to
reappear at the Bristol, Virginia Wal-Mart on August 6. The agents set up video surveillance on
August 6 in an attempt to catch the defendant. The agents saw the Dodge van pull in with a trailer
attached. The plate number and color matched the earlier description given by the Virginia agents.
They watched the defendant load his vehicle with beer. The agents followed him into Tennessee
where he was stopped. Upon searching the vehicle, the agents found one hundred cases of one type
of beer and almost one hundred cases of a second type of beer. The agents confiscated the vehicle
and the beer.

        On November 13, 2002, the defendant was indicted by the Sullivan County Grand Jury for
(1) transportation of untaxed beer in excess of 100 cases and (2) depriving the State of lawful
revenue, both Class E felonies. The defendant pled guilty to these charges at a hearing held on April
21, 2003. It was stipulated at this hearing that the offenses arose out of the purchase of about 200
cases of beer at the Bristol, Virginia Wal-Mart on August 6, 2002, and the subsequent transportation
of the beer to Tennessee. As part of the plea agreement, the defendant was to be sentenced to two
years as a Range II offender for each count and pay a fine of $2,000 for each count. In addition, the
defendant was ordered to pay the State $511.27 in lost revenue. At the conclusion of the guilty plea
hearing, the trial court set a date for an alternative sentencing hearing.

         On September 15, 2003, the trial court held an alternative sentencing hearing. The evidence
at the alternative sentencing hearing included the pre-sentence report, testimony of the defendant’s
daughter, testimony of the individual who prepared the defendant’s pre-sentence report and the agent
from the Department of Revenue who was involved with the defendant’s arrest. After hearing all
the evidence, the trial court denied the defendant alternative sentencing and probation. The trial
court based this decision on the defendant’s lengthy prior record, which included convictions for


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both manslaughter and first degree murder. The other offenses were primarily revenue offenses and
beer offenses, such as the one sub judice. The trial court stated in its ruling that the manslaughter
and first degree murder convictions were the basis of the denial of probation and alternative
sentencing. This appeal followed.

                                            ANALYSIS

        The defendant’s sole issue on appeal is whether the trial court erred in sentencing the
defendant to incarceration and not ordering alternative sentencing. “When reviewing sentencing
issues . . . , the appellate court shall conduct a de novo review on the record of such issues. Such
review shall be conducted with a presumption that the determinations made by the court from which
the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). “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). In conducting our review, we
must consider the defendant’s potential for rehabilitation, the trial and sentencing hearing evidence,
the pre-sentence report, the sentencing principles, sentencing alternative arguments, the nature and
character of the offense, the enhancing and mitigating factors, and the defendant’s statements. Tenn.
Code Ann. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at 169. We are to also recognize that the
defendant bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d
at 169.

        In balancing these concerns, a trial court should start at the presumptive sentence, enhance
the sentence within the range for existing enhancement factors, and then reduce the sentence within
the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight
for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995). The weight given to each factor is left to the discretion of the trial court as long as it
comports with the sentencing principles and purposes of our code and as long as its findings are
supported by the record. Id.

        A defendant “who is an especially mitigated offender or standard offender convicted of a
Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the
absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (emphasis added). In
choosing among possible sentencing alternatives, the trial court should consider Tennessee Code
Annotated section 40-35-103(5), which states, in pertinent part, “The potential or lack of potential
for the rehabilitation or treatment of a defendant should be considered in determining the sentence
alternative or length of a term to be imposed.” Tenn. Code Ann. § 40-35-103(5); State v. Dowdy,
894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). The trial court may consider a defendant’s
untruthfulness and lack of candor as they relate to the potential for rehabilitation. See State v.
Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999); see also State v.Bunch, 646 S.W.2d 158, 160-
61 (Tenn. 1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v.
Williamson, 919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.



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        The defendant pled guilty to (1) transportation of untaxed beer in excess of 100 cases and (2)
depriving the State of lawful revenue, both Class E felonies. The trial court determined that the
defendant was not a good candidate for probation or alternative sentencing. The trial court based
this determination on the defendant’s lengthy record. The defendant’s first violation occurred in
1942 when the defendant was a juvenile. He was charged with violation of Internal Revenue laws
and pleaded guilty. The defendant was placed on probation provided he live with his sister in Ohio.
The defendant’s next offense occurred in 1948, when he was again charged with violating Internal
Revenue laws for distilling. He was sentenced to three years. In 1954, the defendant was charged
once again with violating Internal Revenue laws and sentenced to six months and fined $1,000. In
1957, the defendant was charged with possessing, transporting and selling illegal whiskey. He was
sentenced to serve five years, with another five years suspended and a $2,000 fine. In 1961, he was
charged with possession of non-tax paid whiskey, but this was later dismissed by the U.S. attorney.
In 1966, the defendant was convicted of manslaughter in North Carolina and sentenced to five to
seven years. He was paroled in 1967. In 1970, the defendant was convicted for first degree murder
and sentenced to life in prison in North Carolina. The defendant stated that he was paroled in 1981
and discharged from parole in 1986. The defendant was then charged with illegally transporting
alcoholic beverage through a dry county in Laurel County, Kentucky in May of 2001. He was
sentenced to two years conditional release. In making his decision, the trial judge was especially
troubled by the defendant’s prior convictions for both manslaughter and first degree murder.

        We first point out that under Tennessee Code Annotated section 40-35-102(6) a defendant
must be convicted of a Class C, D, or E felony and be an especially mitigated or standard offender
to be presumed a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6).
While it is true that the defendant did plead guilty to a Class E felony, he also pleaded guilty as a
Range II multiple offender. Under Tennessee Code Annotated section 40-35-106(a), a multiple
offender is defined as “a defendant who has received: (1) A minimum of two (2) but no more than
four (4) prior convictions within the conviction class, a higher class, or within the next two (2) lower
felony classes . . . .” Clearly, the defendant’s extensive criminal record, including convictions for
both manslaughter and first degree murder, would qualify him to be sentenced as a Range II Multiple
Offender. In fact, the defendant had more convictions than that needed to establish his range as a
Range II Multiple Offender. Because he was sentenced as a Range II Multiple Offender, there is no
presumption that he is a favorable candidate for alternative sentencing. Therefore, the defendant
bears the burden of proving he is a favorable candidate for alternative sentencing.

        A trial court must consider probation for a defendant sentenced to serve fewer than eight
years. Tenn. Code Ann. § 40-35-303(a). However, a defendant seeking full probation must
specifically establish suitability for full probation, as distinguished from eligibility for alternative
sentencing in general. State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999). In determining
whether to grant probation, a trial court should consider the circumstances of the offense, the
defendant’s criminal record, the defendant’s social history and present conditions, the need for
deterrence and the best interest of both the defendant and the public. State v. Boyd, 925 S.W.2d 237,
244 (Tenn. Crim. App. 1995). On appeal, a defendant seeking probation bears the burden of



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showing that the imposed sentence is improper and that probation is in the best interest of the
defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        The defendant relies on two arguments to support his contention that he should have received
probation. He argues that the convictions the trial court relied on, manslaughter and first degree
murder, were thirty years old. Therefore, he contends, they should not carry any weight. The
defendant states in his brief that “prior convictions that are remote, i.e. over ten (10) years old,
should be related when mainly relied upon in denying alternative sentencing.” The defendant does
not cite any authority for this proposition. The defendant’s second argument is that the trial court
erred when it failed to find a mitigating factor. This mitigating factor is that the defendant’s criminal
conduct neither caused nor threatened serious bodily injury found at Tennessee Code Annotated
section 40-35-113(1), and therefore, the trial court erred when it sentenced him to incarceration
instead of an alternative sentence.

         We cannot find any authority to support the defendant’s position that his thirty-year-old
convictions for manslaughter and first degree murder are too old to consider when sentencing a
defendant. The trial court stated that these two convictions were the incidents from the defendant’s
prior criminal history that gave the trial court the most concern when considering alternative
sentencing or probation. We agree with the trial court. The defendant has a lengthy criminal history.
The majority of his prior convictions are thirty to forty years old. However, the pervasiveness of his
criminal behavior throughout his lifetime, especially alcohol tax offenses, leads one to question his
ability to be rehabilitated. His first offense as an adult apparently stems back to 1946. That is sixty
years ago. It is obvious that the defendant has little to no regard for the revenue laws concerning
alcohol. In addition, two of his convictions were of the most serious nature. There should be no
limitation for consideration of a conviction for taking the life of another when considering a proper
sentence. As the trial court stated at the hearing, there is no statute of limitations on bringing charges
for first degree murder. Therefore, we conclude that the trial court did not abuse its discretion when
it denied the defendant probation based upon his prior convictions for manslaughter and first degree
murder.

         We turn next to the defendant’s claim that the trial court erred when it failed to consider that
the defendant’s conduct neither caused or threatened serious bodily injury. At the alternative
sentencing hearing, the trial court found “favorable factors,” that the defendant was seventy-five at
the time of the hearing and there was a gap in his convictions from the time of his parole in 1986
until his most recent problems. It is true that the trial court did not apply mitigating factor Tennessee
Code Annotated section 40-35-113(1) when determining the defendant’s eligibility for probation.
Had the court applied the factor, however, we believe it would have justified only negligible weight
in the face of the prior criminal record. We discern no abuse of discretion in denying alternative
sentencing.




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                                   CONCLUSION

In light of the foregoing, the judgment of the trial court is affirmed.



                                                ___________________________________
                                                JERRY L. SMITH, JUDGE




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