         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs May 21, 2003

                 STATE OF TENNESSEE v. CARLOS CAUDILL

                Direct Appeal from the Criminal Court for Claiborne County
                           No. 11771    E. Shayne Sexton, Judge



                                 No. E2002-02339-CCA-R3-CD
                                       August 13, 2003

Defendant, Carlos Caudill, was indicted by the Claiborne County Grand Jury for second degree
murder. On December 18, 2001, Defendant entered a guilty plea as a Range II multiple offender to
voluntary manslaughter, with the length and manner of service of his sentence to be determined by
the trial court. Following a sentencing hearing, the trial court sentenced Defendant to nine years
imprisonment. Defendant appeals the length and manner of service of his sentence. We find no
error and affirm the judgment of the trial court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Timothy P. Webb, Jacksboro, Tennessee, for the appellant, Carlos Caudill.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William Paul Phillips, District Attorney General; Jared Effler, Assistant District Attorney General,
for the appellee, the State of Tennessee.

                                            OPINION

        At approximately 10:00 p.m., on February 17, 2001, Defendant shot and killed the victim,
William Frick, inside Defendant's home. Defendant and the victim were neighbors, and the
victim “appeared to have entered [Defendant's] residence for reasons unknown.” Defendant then
kicked the victim in the head and placed a crowbar beside him on the floor. Defendant and his
girlfriend fled the home on foot and went to a relative’s home a half a mile away. Defendant
used the relative’s telephone to call friends in Kentucky and asked them to assist him in
removing the victim’s body from his home. Defendant's friends denied his request, and
Defendant then called 911. Mr. Frick died from a gunshot wound to the chest.
       This summary of facts is taken from the presentence report. At the guilty plea hearing, no
witnesses testified to the facts of the homicide. The State and Defendant stipulated that the
prosecution would prove beyond a reasonable doubt, through its witnesses, that Defendant
committed second degree murder. At the submission hearing, Defendant told the trial court that
the prosecutor’s statement was, in fact, correct.

        According to Defendant’s version of the facts in the presentence report, Mr. Frick “broke
into [his] home,” and Defendant asked him to leave. The victim was carrying a crowbar in his
hand. The victim did not leave Defendant’s home, and Defendant “felt threatened” and shot him
“one time with a .38 [caliber] revolver.” After Defendant shot the victim, he “then kicked him
and searched him for another weapon.” Defendant “then walked to a relative’s home and called
911 to report what [he] had done.” Defendant told investigators that he shot the victim in self-
defense, “protecting [him]self and [his] family.” Defendant further stated in the presentence
report:
          However, during my time in jail, I have realized two things. One, I should
          have never had a gun for any reason, and had I not had one, I may have reacted
          in a different way, and two, if I had to defend myself and my home, it shouldn’t
          have resulted in the death of Bill Frick. I see no reason why this event would
          ever repeat itself, nor any reason I would have to violate probation or parole.
          In the future, my home will be protected by a security system rather than an
          illegal weapon and a violent temper.

        On April 2, 2002, the trial court conducted a sentencing hearing. Timothy Adams, a
probation and parole officer for the state of Kentucky, testified that he supervised Defendant
while he was on probation for prior convictions. Adams testified that Defendant “appeared to be
polite and cooperative.” He testified, however, that Defendant absconded from probation in
October of 1998 and further violated the conditions of his probation by failing to report a change
in residence, failing to report as directed, and failing to pay court ordered fees.

       Defendant testified at the sentencing hearing that on the night of the offense, he woke up
and found the victim standing in his living room. Defendant testified that the victim “was not
welcome in [his] home.” Defendant testified that he “did just like anyone else would’ve done in
the whole world [and] defended [his] home.” Defendant also testified that he failed to comply
with the conditions of his probation for the prior felony convictions in Kentucky.

        At the conclusion of the sentencing hearing, the trial court applied three enhancement
factors: (a) that Defendant has a previous history of unwillingness to comply with the conditions
of a sentence involving release in the community, Tenn. Code Ann. § 40-35-114(9) (Supp.
2002); (b) that Defendant employed a firearm during the commission of this offense, Tenn. Code
Ann. § 40-35-114(10) (Supp. 2002); and (c) that the felony was committed while Defendant was
on probation for a prior felony conviction, Tenn. Code Ann. § 40-35-114(14)(C) (Supp. 2002).




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         The trial court declined to apply mitigating factors (2) and (3). See Tenn. Code Ann. §
40-35-113 (1997). The trial court found that Defendant acted “under a state of passion not
sufficient to support self-defense, but sufficient to make a person act irrationally. . . . [However],
that is reflected in the plea so I'm not going to give that any weight. I think that the weight, the
appropriate weight has already been given by this Court and by the parties in their
recommendation on the charge.” The trial court found evidence to support mitigating factor (11),
that the defendant, although guilty of the crime, committed the offense under such unusual
circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal
conduct. See Tenn. Code Ann. § 40-35-113 (1997). Although not a statutory mitigating factor,
the trial court also considered Defendant’s genuine remorse for the offense. See State v.
Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995).

        The range of punishment for voluntary manslaughter, a Class C felony, is six to ten years
for a Range II multiple offender. Tenn. Code Ann. §§ 39-13-211(b), 40-35-112(b)(3) (1997). If
no mitigating or enhancement factors are present, the presumptive sentence for a Class C felony
shall be the minimum sentence within the applicable range. Tenn. Code Ann. § 40-35-210(c)
(1997 & Supp. 2002). If enhancement and mitigating factors exist, however, the trial court
should enhance the minimum sentence within the range as appropriate for enhancement factors
and then reduce the minimum sentence within the range as appropriate for mitigating factors.
Tenn. Code Ann. § 40-35-210(e) (1997 & Supp. 2002). The weight to be afforded any particular
factor is within the trial court’s discretion. Tenn. Code Ann. § 40-35-210, Sentencing
Commission Comments; State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).

        The trial court concluded that the enhancement factors outweighed the mitigating factors
and sentenced Defendant to nine years. The trial court also denied Defendant’s request for an
alternative sentence. Defendant challenges both the length of the sentence imposed and the
manner of service.

        A defendant who challenges his or her sentence has the burden of proving that the
sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401(d) (1997),
Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). When a
defendant challenges the length, range, or manner of service of his sentence, the reviewing court
conducts a de novo review of the record with a presumption that the trial court’s determinations
are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption of correctness is
conditioned upon an affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances. Ashby, 823 S.W.2d at 169.

        Defendant argues that the trial court misapplied enhancement factor (14), that the offense
was committed while Defendant was on probation from a prior felony conviction. Defendant
argues that no evidence was presented that his prior convictions in Kentucky would constitute
felonies in the state of Tennessee. With regard to the application of that enhancement factor, the
trial court stated: “[T]here’s no question in my mind that third degree burglary and unlawful



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taking in Kentucky are felonies and I find – and he was on probation at that time. So that
enhancing factor has been met.”

        The record reveals that in 1998, Defendant entered guilty pleas in the Circuit Court of
Letcher County, Kentucky, to “third degree burglary” and “theft by unlawful taking or
disposition.” Defendant was sentenced to four years probation. Copies of the Kentucky
indictments and judgments were entered into evidence in this case. The indictments state that
both charges are felonies. Defendant also admitted in his testimony that he was a convicted
felon.

        Under Kentucky law, the offense of burglary in the third degree occurs when a person,
“with the intent to commit a crime, knowingly enters or remains unlawfully in a building.” Ky.
Rev. Stat. Ann. § 511.040 (2002). The offense is a Class D felony. Id. The offense of theft by
unlawful taking or disposition occurs when a person “unlawfully takes or exercises control over
movable property of another with intent to deprive him thereof.” Ky. Rev. Stat. Ann. § 514.030
(2002). If the value of the property is $300 or more, the offense is a Class D felony. Id.

       The elements of third degree burglary in Kentucky are essentially the same as the
elements in Tennessee’s burglary statute, which provides that a person who, without the effective
consent of the property owner, enters or remains concealed in a building other than a habitation
with the intent to commit a felony, theft or assault therein, commits burglary, which is a Class D
felony. See Tenn. Code Ann. § 39-14-402 (1997). The elements of theft in the Kentucky statute
may or may not constitute a felony in Tennessee. Tennessee’s theft statute provides that “[a]
person commits theft of property if, with intent to deprive the owner of property, the person
knowingly obtains or exercises control over the property without the owner’s effective consent.”
Tenn. Code Ann. § 39-14-103 (1997). If the theft is of property in an amount under $500, the
offense is a Class A misdemeanor. Tenn. Code Ann. § 39-14-105(1) (1997).

       Regardless of whether Defendant’s theft conviction in Kentucky would be a felony in
Tennessee, Defendant’s burglary conviction in Kentucky clearly constitutes a felony in
Tennessee. The trial court properly applied enhancement factor (14), that the felony was
committed while Defendant was on probation for a prior felony conviction, Tenn. Code Ann. §
40-35-114(14)(C) (Supp. 2002).

        As noted above, copies of the Kentucky indictments and judgments were entered into
evidence. The indictments state on their face that both charges to which Defendant pled guilty
are felonies. Defendant also admitted in his testimony that he was a convicted felon of burglary
and theft in Kentucky.

       Defendant also contends that the trial court misapplied enhancement factor (9), that
Defendant has a previous history of unwillingness to comply with the conditions of a sentence
involving release in the community. Tenn. Code Ann. § 40-35-114(9) (Supp. 2002). Defendant
argues that there was never an adjudication of the alleged probation violation. The trial court


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found that Defendant violated the conditions of his probation. The presentence report reveals
that in 1999, a bench warrant was issued for probation violation in relation to Defendant’s
sentences for the burglary and theft convictions in Kentucky. At the time of the presentence
report, “the disposition of this charge [was] unknown.” Mr. Adams, Defendant’s probation
officer in Kentucky, testified at the sentencing hearing that Defendant absconded from probation
in October of 1998 and further violated the conditions of his probation by failing to report a
change in residence, failing to report as directed, and failing to pay court ordered fees. Defendant
himself testified that he failed to comply with the conditions of probation. The record supports
the trial court’s finding. The enhancement factor does not require proof that a court has revoked
a defendant’s probation. It merely requires proof that the defendant has a previous history of
noncompliance with conditions of a sentence involving release in the community. We conclude
that enhancement factor (9) was properly applied.

         Defendant also challenges the trial court’s failure to apply two mitigating factors: that
Defendant acted under strong provocation, Tenn. Code Ann. § 40-35-113(2) (1997); and that
Defendant was motivated by a desire to provide necessities for his family or himself, Tenn. Code
Ann. § 40-35-113(7) (1997). Our review of the record shows that the trial court properly
declined to apply these mitigating factors. We conclude that the enhancement factors applied by
the trial court are supported by the record. We further conclude that the trial court properly
weighed the enhancement and mitigating factors, and Defendant’s sentence of nine years is
appropriate.

        Defendant also argues that the trial court erred by denying alternative sentencing. An
especially mitigated 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). However, Defendant was sentenced as a Range II multiple offender.
He is therefore not entitled to the presumption that he is a favorable candidate for alternative
sentencing. Furthermore, Defendant is not eligible for a community corrections sentence because
he was convicted of a violent felony offense. See Tenn. Code Ann. § 40-36-106 (1997 & Supp.
2002). Defendant is also ineligible for any probation because his sentence exceeds eight years.
See Tenn. Code Ann. § 40-35-303(a) (1997 & Supp. 2002). The trial court’s denial of an
alternative sentence was not only appropriate, but required by statute.

                                         CONCLUSION
       After a review of the record, the judgment of the trial court is affirmed.



                                              ___________________________________
                                              THOMAS T. WOODALL, JUDGE




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