        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  July 17, 2012 Session

        STATE OF TENNESSEE v. FREDRICK JOHN DEEN CLARK

              Direct Appeal from the Circuit Court for Grundy County
                      No. 4674    Thomas W. Graham, Judge


                 No. M2011-02503-CCA-R3-CD - Filed March 6, 2013


The appellant, Fredrick John Deen Clark, pled guilty in the Grundy County Circuit Court to
vehicular assault, a Class D felony. Pursuant to the plea agreement, the appellant received
a six-year sentence with the manner of service to be determined by the trial court. After a
sentencing hearing, the trial court ordered that the appellant serve his sentence in
confinement. On appeal, the appellant contends that the trial court erred by denying his
request for alternative sentencing. Based upon the oral arguments, the record, and the
parties’ briefs, we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Paul D. Cross, Monteagle, Tennessee, for the appellant, Fredrick John Deen Clark.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel Harmon, Assistant Attorney
General; James Michael Taylor, District Attorney General; and David Shinn and David O.
McGovern, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       In November 2010, the Grundy County Grand Jury indicted the appellant for
attempted second degree murder, two counts of aggravated assault, driving under the
influence, violation of the implied consent law, vehicular assault, and reckless endangerment.
On July 22, 2011, he pled guilty to vehicular assault, a Class D felony. At the appellant’s
guilty plea hearing, the State and the defense advised the court of the following facts: On
May 5, 2010, Timothy Smartt1 and the appellant went fishing in the Grundy Lakes area.
Afterward, they drove in the appellant’s truck to the Tracy City area. They got into an
argument near Flury’s Store, so Smartt jumped out of the truck and started walking across
the parking lot. The appellant hit Smartt once or twice with his truck and left the scene. The
police contacted the appellant, and he returned voluntarily. He appeared to be under the
influence of an intoxicant. The victim had a head injury and several broken bones and was
airlifted to Erlanger Medical Center.

        Pursuant to the plea agreement, the appellant agreed to be sentenced as a Range II,
multiple offender with the manner of service to be determined by the trial court. At the
sentencing hearing, the victim testified for the State that after the appellant’s Ford F-150
truck hit him, the appellant “backed up and run over [him] again.” He said that as a result
of the incident, his hip was damaged, requiring three surgeries; his shoulder was broken; and
his skull was “left . . . hanging with all kind of staples and stitches in it.” The victim was
responsible for the care of his two sisters and had to have hip replacement surgery as a result
of his being hit by the appellant’s truck. He said that he and the appellant used to be friends
but that the appellant should serve his time in confinement. The trial court asked if the
appellant hit him with the truck intentionally, and he said yes. He said the appellant hit him
once from behind, causing him to slide across the parking lot and receive “bad road rash.”
He stated that while he was on the ground, the appellant hit him again, splitting the side of
his head “wide open.” The appellant backed up and was going to hit the victim a third time,
but the victim moved out of the way.

       On cross-examination, the victim testified that he had “[o]ne or two” felony
convictions, including a conviction for aggravated assault. He maintained that the appellant
hit him with the truck twice and that the appellant “tried to run over [him] again.” He
acknowledged that when he got out of the appellant’s truck, he had the appellant’s
medication bottle in his pocket. He said that the appellant asked him to “hold” the bottle
because the appellant kept losing it. The victim and the appellant began arguing, and the
victim tried to give the bottle back to the appellant. He also tried to get out of the truck, but
the appellant would not stop long enough for him to get out.

       Teddy Trail testified for the appellant that he was a retired police officer and
witnessed the vehicular assault. The appellant’s truck hit the victim one time. On cross-
examination, Trail testified that after the appellant hit the victim, the appellant drove away
from the scene. The victim was seriously injured, and Trail telephoned the police. The State
asked if the appellant had hit the victim intentionally, and Trail answered, “I can’t say that,


       1
         Throughout the record, the victim’s last name appears as “Smartt” or “Smart.” We have used his
last name as it appears in the appellant’s indictment.

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sir.”

       Mike Rigsby testified that he was the appellant’s pastor and had known the appellant
about ten years. He said that the appellant was “making progress” and that the appellant had
recently married and had a baby. The appellant attended church regularly and could function
well in society if granted probation.

       On cross-examination, the State asked Rigsby if he was aware that the appellant
continued “to have issues with marijuana usage[?]” Rigsby stated, “Well, I wouldn’t doubt
it.” He said that the appellant previously had a problem with alcohol but that he had seen the
appellant “mature.”

       The State introduced the appellant’s presentence report into evidence. In the report,
the then thirty-three-year-old appellant stated that he graduated from high school and that his
mental health was “poor.” He also stated that he had never used alcohol but that he began
using marijuana when he was seventeen years old, used it daily, and successfully completed
a treatment program in 1997. The appellant claimed in the report that he stopped using
marijuana “less than a year ago” because he got married and had a baby. However,
according to the presentence report, which was completed on September 21, 2011, the
appellant tested positive for marijuana and opiates on September 8, 2011. In the report, the
appellant described his physical health as “poor” and said that he became disabled in 2011
due to hearing loss. According to the report, the appellant worked at Silver Bait, LLC for
a few months in 2007 but had to stop working when he became disabled. He reported no
other employment. The report shows that the appellant has a 2006 misdemeanor conviction
for marijuana possession. In 2007, a probation violation warrant was issued for his failure
to complete public service work and pay anything toward his court costs and fines. At the
time the presentence report was completed, the warrant was still outstanding.

       The appellant introduced the victim’s medical records into evidence. The records
show that the victim was diagnosed with “[b]lunt” abdominal injury, a humeral head fracture,
a scalp laceration, and a fractured shoulder. According to the records, the victim’s head
injury was “minor.” The records do not show that the victim’s hip was injured.

       The trial court found that confinement was not necessary to protect society from a
defendant who has a long history of criminal conduct. However, the court found that
confinement was necessary to avoid depreciating the seriousness of the offense and to
provide an effective deterrent to others likely to commit similar offenses because “[t]his was
a very serious offense. . . . When you hit a human body, bones and flesh, with steel, with a
multi-hundred-horsepower vehicle, that is a serious offense.” The trial court noted that the
appellant would not submit to alcohol or drug testing and that he “wasn’t so much worried

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about the condition of the victim as he was about himself.” Finally, the trial court concluded
that measures less restrictive than confinement had been frequently or recently applied
unsuccessfully to the appellant because the appellant never completed the probation he
received for his 2006 misdemeanor conviction. The trial court stated that the appellant hit
the victim intentionally and ordered that he serve his sentence in confinement.

                                         II. Analysis

       The appellant claims that the trial court erred by denying his request for alternative
sentencing. The State argues that the trial court properly ordered the appellant to serve his
sentence in confinement because the court was “very disturbed” by the facts of this case and
because the appellant was on probation when he committed the crime. We conclude that the
appellant is not entitled to relief.

        In sentencing a defendant, the trial court shall consider the following factors: (1) the
evidence, if any, received at the trial and 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 enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State v.
Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Previously, appellate review of the length, range,
or manner of service of a sentence was de novo with a presumption of correctness. See
Tenn. Code Ann. § 40-35-401(d). However, our supreme court recently announced that
“sentences imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’”
State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Even more recently, the court specifically
held that the abuse of discretion standard, with a presumption of reasonableness, applies to
a review of a denial of alternative sentencing. State v. Christine Caudle, ___ S.W.3d ___,
No. M2010-01172-SC-R11-CD, 2012 Tenn. LEXIS 824, *16 (Nashville, Nov. 27, 2012).
The burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.
Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

       An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentence meets this
requirement. Moreover, an appellant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).
Tennessee Code Annotated section 40-35-103(1) sets forth the following sentencing

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considerations which are utilized in determining the appropriateness of alternative
sentencing:

                      (A) Confinement is necessary to protect society by
              restraining a defendant who has a long history of criminal
              conduct;

                     (B) 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

                    (C) Measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to the
              defendant.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Tenn.
Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct and
“evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative
sentencing. Tenn. Code Ann. § 40-35-102(5).

        The appellant contends that the trial court erred by denying his request for full
probation or split confinement. In particular, he claims that the trial court “was apparently
operating under the misperception that intentionally was an element of [vehicular assault].”
The appellant is referring to an exchange with defense counsel in which the trial court stated,
“It’s an intentional disregard for the safety of others which is as close to intent to hit as you
can get without, I guess, coming forward and saying it. So, anyway, I just -- I think it’s a
tragedy and, you know, all of it is partially affected by, I’m sure, folks’ use of either
marijuana and/or alcohol or both.”

        Initially, we note that the appellant was sentenced as a Range II, multiple offender.
Therefore, he is not considered to be a favorable candidate for alternative sentencing.
Moreover, the trial court determined that confinement was necessary to avoid depreciating
the seriousness of the offense or particularly suited to provide an effective deterrence to
others likely to commit similar offenses. In denying full probation to avoid depreciating the
seriousness of the offense, the criminal act should be especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree. Zeolia, 928
S.W.2d at 462. In this case, the trial court concluded that the appellant’s hitting the victim

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with the truck, resulting in serious injuries; leaving the scene; and failing to show any
concern for the victim satisfied that factor.

        The trial court also noted that the appellant had been smoking marijuana since he was
seventeen years old and stated that his “condition” contributed to the crime in this case.
Undoubtedly, the appellant still has an addiction to illegal drugs. Although he completed a
drug treatment program once, he continues to use marijuana. In addition, he claimed in the
presentence report that he stopped using marijuana, but he tested positive for marijuana and
opiates. Therefore, the appellant shows poor potential for rehabilitation and treatment. See
State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999) (providing that “[l]ack of
candor and credibility are indications of a defendant’s potential for rehabilitation”).
Applying the presumption of reasonableness, we conclude that the appellant has not shown
that the trial court abused its discretion by ordering him to serve his sentence in confinement.

                                       III. Conclusion

      Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the trial court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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