         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                         FEBRUARY SESS ION, 1999         May 14, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,               )   C.C.A. NO. 03C01-9806-CC-00204
                                  )
           Appellee,              )
                                  )   COCKE COUNTY
V.                                )
                                  )
                                  )   HON. REX HENRY OGLE, JUDGE
NORMAN SUTTON,                    )
                                  )
           Appe llant.            )   (VOLUNTARY MANSLAUGHTER)



FOR THE APPELLANT:                    FOR THE APPELLEE:

EDWARD CANTRELL MILLER                JOHN KNOX WALKUP
District Public Defe nder             Attorney General & Reporter

SUSAN NA LAW S THO MAS                MICH AEL J. F AHEY , II
Assistant Public Defender             Assistant Attorney General
102 Mims Avenue                       2nd Floor, Cordell Hull Building
Newport, TN 37821-3614                425 Fifth Avenue North
                                      Nashville, TN 37243

                                      AL C. SCHMUTZER, JR.
                                      District Attorney General

                                      WILL IAM BR OW NLO W M ARSH , II
                                      Assistant District Attorney General
                                      339-A East M ain Stree t
                                      Newport, TN 37321




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       The Defendant, Norman Sutton, appeals as of right following his sentencing

hearing in the Cocke County Circuit Court. In a two-count indictment, Defendant

was charged with two (2) counts of first degree murder for the deaths of Martha

Williams, Defenda nt’s sister, and C linton Ha nce. De fendan t entered a guilty plea to

voluntary manslaughter on both counts. The Defendant’s sole issue on appeal is the

failure of the trial court to allow Defendant to serve an alternative sentence rather

than inca rceration . We affirm the ju dgme nt of the trial co urt.



       When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the de termina tions ma de by the trial court are correct. Tenn. Code

Ann. § 40-35 -401(d). This p resum ption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing princip les an d all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code Ann. §§ 40-35-1 02, -103 , and -210; see State v. S mith, 735 S.W.2d

859, 863 (T enn. Crim. A pp. 1987).



                                             -2-
      If our review reflects tha t the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, the n we m ay not m odify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



      A defen dant w ho “is an especially mitigated or standard offender convicted of

a Class C, D or E felony is presumed to be a favorab le candidate for a lternative

sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102(6). Our sentencing law also provides that “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   sentences    involving

incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to

eight (8) years or less who is not an offender for who m inc arcera tion is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offenders who meet the

criteria are entitled to such relief; rather, it requires that sentencing issues be

determined by the facts and circu mstan ces pre sented in each c ase. See State v.

Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).



      Additionally, the principles of sentencing reflect that the sentence should be

no greater than that deserved for the offense committed and should be the least

severe measure necessa ry to ach ieve the purpo ses fo r which the se ntenc e is

imposed. Tenn . Code Ann. § 4 0-35-10 3(3) - (4). The court should also consider the

                                           -3-
potential for rehab ilitation o r treatm ent of th e defe ndan t in determining the sentence

alternative. T enn. C ode An n. § 40-3 5-103(5 ).



       W hile we do have the transcript from the sentencing hearing, the Defendant

failed to include th e transcr ipt of his guilty plea hearing w ithin the record. Ho wever,

two (2) sepa rate statem ents of the De fendan t detailing the events precipitating the

deaths of the victim were entered as exhibits at the sentencing hearing.               In a

statement given by Defendant on December 1, 1996 at 3:11 a.m., he stated as

follows:

       I was downtown drinking with Martha Williams and Clinton Hance at
       Fred dy’s Bar and the Sidewalk and came home. Martha and Clinton
       started argueing (sic). I went to my room and Martha opened th e door.
       I told Marth a, “I ain’t gon na take your s__ _ no m ore.” She spoute d off
       at me and called me a nam e. I told her to g o on in an d lay dow n. She
       jumped at me and I shot her. Clinton jumped up an d had a knife in his
       hand, called me a “son-of-a-bitch” and I shot him. I am not sorry I shot
       Clinton but I am sorry I shot Martha. Clinton was a sorry son-of-a-bitch.

On the following day, the Defendant provided yet another statement as follows:

       My sister, Martha Willia ms, had b een to Niag ara Falls to see R ichard
       Williams’ mothe r, she wa s sick. They got back here on Frida y night,
       November 30, 1996. Me, my sister, Richard and Clinton Hance lived
       at Richard and Martha’s trailer. I’ve been living at the trailer for about
       three years and Clinton had been living at the trailer for two ye ars. The
       little boy at the trailer was S cott Allen W illiams. On Saturd ay, Dec. 01,
       1996, I took my sister to Fre ddies B ar. Clinton works a t Freddie s. W e
       also went over to the Sidewalk. Me, Martha and Clinton were all
       drinking. I got in an argum ent with so me on e at the S idewalk, b ut I
       don’t remem ber who. Clinton and my siste r Martha go tog ether and
       Martha sleeps with Clinton when Richard is gone. Richard drives a
       truck. Richard and Martha have been married about 4 years this time.
       They had been married before but got a divorc e. W e left the Sidew alk
       around closing tim e and w ent bac k to the trailer. W e didn’t drink
       anymore at the trailer. I keep a 32 pistol at the foot of my bed in the top
       of the chester (sic) drawers. Clinton and Martha was arguing (sic), they
       argue all the time about something. They were arguing in the hall near
       the bathroom. Clinton looked like he had a knife in his hand. I tried to
       stop Clinton a nd Ma rtha from arguing . Clinton thre atened to kill me. I
       got the pistol from the drawer. I was going to protect myself. Clinton
       came toward me, M artha g ot betw een u s and I shot a nd hit h er. I didn ’t
       mean to shoot her but she got between us. Clinton was still coming at

                                            -4-
       me with something that looked like a knife. I shot Clinton. I shot twice.
       After the shooting I called 911 and told them I shot my sister and
       Clinton. I waited on the deputies and g ave the m m y gun. W e were all
       drinking and arguing and I thought Clinton was going to cut me. Me
       and Clinton had never fought before. I never saw Richard, he must
       have slept thru it all. I d on’t know if Scott was awake or not. I loved my
       sister and I liked Clinton but I thought he was going to hurt me.

       Medical evidence indicated that Defendant’s blood alcohol level at the time of

the offense was 0.26. The State’s evidence at the sentencing hearing centered

upon th e impa ct of the loss of the victim , Martha W illiams, by he r family.



       The Defenda nt presented testimony from his daughter, Sherry Cameron.

Cameron stated that the Defendant had always been very close to his sister, the

victim. He lived with Martha in her trailer. Camero n des cribed the De fenda nt’s

medical problems, including alcoholism and emphysema. However, Cameron stated

that she was willing to take the Defendant into her home and care for him if he was

placed on probation. Cameron described that Defendant was trying to defend the

victim, Ma rtha, from Clinton H ance a t the time o f the shoo ting.



       The Defen dant testified in his own behalf, stating that he loved his sister

dearly and was very close to her. Defendant described that he “was the best of

friends” with Clinton Hance until Hance threatened Defendant’s life with a knife and

knocked Martha William s into the bathroom.          After hearing Hance and Martha

Williams scuffling, Defendant came out into the hallway where he was threatened

by Clinton Hance. Defendant reached into his chest of drawers for his pistol and

fired. As he fired, Defendant explained that his sister jumped between he and

Clinton Hance. A s Hance “was threatening to cut my guts out,” Defendant fired

again and feared for his life. Defendant admitted to the trial court that he had been

drinking th at night.

                                           -5-
      After finding that the Defendant’s version of the facts were questionable and

that Defendant should serve the maximum sentence of six (6) years, the trial court

found as follows on the issue of alternative sentencing:

      The Court furth er finds tha t becau se of the to tality of the circumstances
      that justice would be completely denied, that justice would be a joke if
      you can gun down two people in a situation like this. And in fact the
      Court would say that I am sure that this situation was aggravated by the
      use of intoxicants by all of the parties . You k now, I w asn’t th ere, I do n’t
      know, but to on one hand find that this defendant quickly and without
      hesitation during a p eriod o f extrem e intoxic ation g uns d own tw o peo ple
      for no reason and then to place him on probation I think would, as I say,
      justice would be a joke. So this Cou rt cannot place him on probation
      due to the nature of the offense and the manner in which it happened.

      In essence, in fact it would be bad enough in this situation if he killed
      one person, but to k ill two, to s hoot o ne in th e bac k, certa inly this Court
      would think that it would be a great injustice for that to happen.

      I’m sorry for him, I’m sorry that h e’s sick . . . But when you get mad and
      when you get drunk and when you take weapons and when you gun
      down people over nothing, I think justice demands that the sentence be
      executed.



       The Defendant argues that he meets the statutory requirements to be

presumed eligible for probation and that the trial court “did not make findings related

to the cons iderations set forth in sta tute, particu larly [Defen dant’s] lack of criminal

history and long employment record, his age, physical infirmities and potential for

rehabilitation .” Wh ile Defendant agrees that the enhancing factors and seriousness

of the offense correctly resulted in the maximum sentence on both counts, he

asserts that the manner of the service of his sentence was not treated by the court

as an independent issue. The State a rgues that the trial cou rt properly relied upon

the seriousness of the offense and the circumstances surrounding its commission,

and proba tion wo uld have depreciated the seriousness of the offense. Tenn. Code

Ann. § 40-3 5-103(1)(B).




                                             -6-
       When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations which

militate against alternative sentencing include: the need to protect society by

restraining a defendant having a long history of criminal conduct, whether

confinement is particularly a ppropria te to effective ly deter othe rs likely to comm it a

similar offense, th e need to avoid depreciating the seriousness of the offense, and

the need to order confinement in cases in which less restrictive measures have often

or recently be en uns uccess fully applied to the defe ndant. T enn. C ode An n. § 40-35-

103(1).



       This court has recognized that the volu ntary c omb ination of alco holic

intoxication with dangerous instrumenta lities is a matter of serious p ublic concern

which may jus tify a denial of p robation . State v. Bob by Ru ssell, No. 03C01-9608-

CR-00319, slip op. at 8, Po lk County (Tenn. Crim. App., at Knoxville, September 16,

1997), perm. app. denied (Tenn. 199 8) (citing State v. Cleavor, 691 S.W.2d 541

(Tenn. 1985)) ; State v. Butler, 880 S.W .2d 395, 401 (Tenn. Crim . App. 1994 ).

Defe ndan t’s conduct was the result of his voluntary combination of intoxication and

firearms, and his reckless conduct and disregard for the lives of his family and

friends justifies some confinement to avoid depreciating the seriousness of the

offense.   Id. (citing Tenn. Code Ann. § 40-35-103(1)(B)).           A court may deny

probation solely from the circumstances of the crime itself, if the crime as committed

was “espe cially violent, horrifying, shocking, reprehensible, offensive, or otherwise

of an excessive o r exaggera ted degree.” State v. Hartley, 818 S.W.2d 370, 374

(Tenn. Crim. App. 1991).          Under the circumstances of this shocking and




                                            -7-
repre hens ible offense, we conclude that the seriou snes s of the offens e ade quate ly

suppo rts the trial cou rt’s decision to deny p robation .



       W hile Defendant is correct that he meets the statutory requirements for

presum ptive eligibility for prob ation, his lack of a criminal record and history of

employment and various medical maladies will not suffice to overcome the

seriousness of this o ffense . Two (2) lives w ere los t as a re sult of Def enda nt’s firing

of a deadly weapon while he was extrem ely intoxicated. One of the victim’s, Mr.

Hance, was shot in the back. The trial court appropriately relied upon the need to

avoid depreciating the seriousness of this offense in den ying an alternative

sentence. State v. Michael Benson, No. 02C 01-970 8-CC -00333 , Hardin C ounty

(Tenn. Crim. App., at Ja ckson, J uly 21, 19 98), perm. app. denied (Tenn. 1999)

(Voluntary manslaughter of the vic tim wh ile defendant was under the influence of an

intoxicant and us ed a de adly wea pon wa s sufficient to justify a total denial of

alternative sentencing w here defen dant pled gu ilty to voluntary manslaughter of

brother-in-law).



       The burden is on the Defendant to show that th e sen tence he rec eived is

improper and that he is entitled to proba tion. Ashby, 823 S.W.2d at 169. Defendant

has failed to mee t this burde n, and w e affirm the judgm ent of the tria l court.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




CONCUR:




                                             -8-
___________________________________
JERRY L. SMITH, Judge


___________________________________
L. T. LAFFERTY, Senior Judge




                               -9-
