        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 26, 2009

                STATE OF TENNESSEE v. JOHN LEE SHIELDS

                 Appeal from the Criminal Court for Bradley County
                         No. 07-461 Amy A. Reedy, Judge




                  No. E2008-02786-CCA-R3-CD - Filed April 6, 2010


The Defendant, John Lee Shields, pled guilty to one count of reckless aggravated assault, a
Class D felony, with sentencing left to the determination of the trial court. Following a
sentencing hearing, the trial court sentenced the Defendant to two years suspended to
probation after the service of ten months incarceration in the county jail. In this appeal as
of right, the Defendant contends that the trial court erred in sentencing him to split
confinement. Following our review, we affirm the judgment of the trial court as modified
by this opinion.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

Kenneth Lee Miller, Cleveland, Tennessee, attorney for appellant, John Lee Shields.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; R. Steven Bebb, District Attorney General; and Stephen Hatchett,
Assistant District Attorney General, attorneys for appellee, State of Tennessee.

                                        OPINION

       The record reveals that the Defendant was initially indicted in case number 07-157 for
the aggravated assault of Danny Spurgeon. Although the guilty plea submission transcript
is not included in the record on appeal, the presentence report and sentencing hearing
transcript reflect that on August 18, 2006, the Defendant and a codefendant, Jesse Galindo,
assaulted the victim in a bar restroom after the victim said something “sarcastic” to the
Defendant. The Defendant struck the victim to the ground and his codefendant repeatedly
kicked and stomped the victim, leaving him unconscious and bleeding on the restroom floor.
The severity of the victim’s injuries required him to be transported via helicopter to a
Chattanooga trauma center. The victim remained hospitalized until March 2007 when he
returned home where he required twenty-four hour nursing care. The presentence report
indicates that the victim “was paralyzed by the assault and a little over a year later died . . .
. His death was ruled accidental by the coroner.”

       After the victim’s death, the State dismissed the indictment alleging aggravated
assault in case number 07-157. On November 14, 2007, the State indicted the Defendant and
his codefendant for second degree murder by a superseding indictment in case number 07-
461. Although the specific reasons are not apparent in the record before this court, on
September 9, 2008, the State filed a Notice of Intent to Try Lesser Included Charge which
indicates the State’s decision to try the Defendant on the reduced charge of aggravated
assault due to “information as to an independent intervening cause that may have directly
caused the victim’s death.” The record also indicates that the codefendant pled guilty to
aggravated assault and was sentenced to four years of incarceration in the Department of
Correction.

        Lisa Spurgeon, the victim’s wife, recalled going to the bar to pick up her husband and
described him as “buzzed” but not particularly drunk. She described him as a “funny” drunk
and not someone who would act mean or angry when drinking. She said that her husband
went to use the bathroom before leaving. She recalled seeing the Defendant and his
codefendant leaving the bar and, within five minutes, someone began yelling that someone
in the bathroom needed help. She testified that she ran to the bathroom to find her husband
lying on the floor with a puddle of blood beneath his head. She testified that her husband
suffered a lot of head trauma and injuries to his torso and arms and that he was placed on a
ventilator while hospitalized. When he came home in March 2007, he required constant
nursing care. Mrs. Spurgeon testified that the medical bills for his care totaled more than
$250,000.

        Detective Kevin White of the Bradley County Sheriff’s Office testified that he
interviewed the Defendant about one and a half to two hours after the incident. He testified
that, although he could smell alcohol on the Defendant, the Defendant was not “overly
intoxicated.” The Defendant told Detective White that he was in the bathroom when the
victim made a derogatory statement to him. The Defendant claimed that he was fearful the
victim had a weapon so he struck him in the face, knocking him to the ground. The
Defendant did not tell Detective White anything about his codefendant kicking the victim.
Detective White stated that the investigators knew the victim had been kicked during the



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assault because he had a shoe print on his face.         Detective White testified that the
codefendant confessed to kicking the victim.

        The Defendant testified that he and his codefendant had consumed one-half gallon of
liquor before arriving at the bar. He became sick and went to the bathroom to “throw up.”
He testified that his codefendant was in the bathroom helping him to stand up. The
Defendant stated that the victim entered the bathroom and made a remark that “knocking him
in the face with his private” would make him feel better. The Defendant claimed that he was
sick and just wanted to leave the restroom so he knocked the victim with his left hand to exit
the room. He stated that the victim fell to the floor. The Defendant testified that the events
of the night were “sort of a blur” so he could not recall his codefendant kicking the victim
although he did remember telling him to stop. The Defendant testified that he suffers from
severe depression and has attempted suicide twice. He has custody of his two children.

        The Defendant’s father, Frankie Lee Shields, testified that he tried to stop the
Defendant from going out that night because he was already so drunk while at the house. He
stated that the Defendant suffered from anxiety and depression but stopped drinking alcohol
after the incident. He acknowledged that the Defendant came home after the incident and
that he had no injuries. Mr. Shields described the codefendant as someone with a bad temper
who “just loses it.”

        The State argued that the Defendant was not completely candid about the incident as
indicated by his reference of it as a fight when actually the victim never threatened or struck
either the Defendant or his codefendant. The State also argued that a defendant convicted
of aggravated assault is generally not eligible for community corrections supervision and that
the Defendant failed to show any special needs allowing placement on community
corrections. The Defendant asked for full probation or community corrections placement
given his history of depression and suicide attempts and his minor participation in the
offense.

        The trial court noted the Defendant’s history of aggressive behavior documented in
the mental health records submitted at sentencing. The trial court found the existence of no
enhancement factors and gave no weight to the factors argued by the Defendant. Through
many references to proceedings not included in the record on appeal, the trial court described
the incident as “one of the most obviously brutal violent beatings” it had ever seen. The trial
court acknowledged the Defendant’s lack of criminal history or lack of failed attempts at
rehabilitation. Nevertheless, the trial court noted the Defendant’s lack of candor, mental
health history, and history of aggressive behavior as facts that weighed against the
Defendant’s potential for rehabilitation. Based upon these considerations, the trial court



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imposed a two-year sentence of split confinement with ten months to serve prior to release
on probation.

       On appeal, the Defendant argues that the trial court should have granted him full
probation or placed him on community corrections. The State argues that the trial court’s
sentencing decision regarding the manner of service of the sentence is supported by the
record. However, the State correctly notes that the trial court erred in imposing a sentence
of confinement in excess of the Defendant’s release eligibility date. Following our review,
we agree with the State. Therefore, upon remand, the trial court is directed to enter a
corrected judgment consistent with this court’s opinion, and the denial of full probation or
community corrections is affirmed.

                                        ANALYSIS

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2003). As
the Sentencing Commission Comments to this section note, on appeal the burden is on the
defendant to show that the sentence is improper. This means that if the trial court followed
the statutory sentencing procedure, made findings of fact that are adequately supported in the
record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, the court may not disturb the sentence
even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991). 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 this respect, for the purpose of meaningful
appellate review:

       [T]he trial court must place on the record its reasons for arriving at the final
       sentencing decision, identify the mitigating and enhancement factors found,
       state the specific facts supporting each enhancement factor found, and
       articulate how the mitigating and enhancement factors have been evaluated
       and balanced in determining the sentence. Tenn. Code Ann. § 40-35-210(f)
       (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

       In conducting its de novo review, the appellate court must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

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principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors,
(6) any statement that the defendant made on his own behalf, and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210 (2006); see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn.1986).

       In determining whether the Defendant should have received an alternative sentence,
the trial court was obliged to consider (1) the evidence, if any, received at the guilty plea and
sentencing hearings, (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 the 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 statements
the defendant made in his behalf about sentencing, and (8) the potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-210 (b); -103(5)(2006); State v. Holland, 860 S.W.2d
53, 60 (Tenn. Crim. App. 1993).


       The Defendant is a “standard offender convicted of a Class C, D, or E felony, [who]
should be considered as a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary.” Tenn. Code Ann. § 40-30-102(6)(2006). Furthermore,
a defendant is eligible for probation “if the sentence actually imposed upon the defendant is
ten (10) years or less,” and the trial court is required to automatically consider probation as
a sentencing option. Tenn. Code Ann. § 40-35-303(a), (b)(2006). A defendant’s potential
for rehabilitation or lack thereof should be examined when determining if an alternative
sentence is appropriate. Tenn. Code Ann. § 40-35-103(5). A defendant seeking full
probation bears the burden of showing that probation will “‘subserve the ends of justice and
the best interest of both the public and the defendant.’” State v. Dykes, 803 S.W.2d 250,
259 (Tenn. Crim. App. 1990) (quoting Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956)),
overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Among the
factors applicable to probation consideration are the circumstances of the offense; the
defendant’s criminal record, social history, and present condition; the deterrent effect upon
the defendant; and the best interests of the defendant and the public. State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978).


       Initially, the State notes that the trial court erred in imposing a period of incarceration
of ten months in this case because it exceeds the Defendant’s release eligibility for his Range
I, two-year sentence. Although not addressed by the Defendant on appeal, the sentencing
hearing transcript reflects that the Defendant attempted to point out this issue to the trial


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court, but the trial court interrupted counsel by stating, “I’m familiar [with] all that . . . . Two
years after ten months is the sentence of the Court.” This court has held that a period of
confinement imposed in a split confinement sentence cannot exceed the release eligibility of
the defendant. See, e.g., State v. Kellom Timbs, M2006-01908-CCA-R3-CD, 2007 WL
2044240 (Tenn. Crim. App. July 18, 2007), app. denied (Tenn. Dec. 17, 2007). Hence, the
judgment of the trial court must be modified to provide for the release of the Defendant after
serving no more than 219 days of the ten-month jail sentence in actual confinement. See
Tenn. Code Ann. § 40-35-501(a)(3).


        Relative to its denial of full probation, the trial court noted the Defendant’s lack of
criminal history and lack of past failed attempts at rehabilitation. However, the trial court
expressed concern over the Defendant’s lack of candor concerning the incident and the
history of aggressive behavior exhibited against himself and others documented in the mental
health records. The trial court correctly found that these facts weighed unfavorably towards
the Defendant’s potential for rehabilitation. See, e.g., State v. Nunley, 22 S.W.3d 282, 289
(Tenn. Crim. App. 1999). However, the trial court also found that the State had not
overcome the presumption in favor of alternative sentencing and imposed the sentence of
split confinement. We conclude that the trial court gave appropriate consideration to the
sentencing factors in arriving at its determination. Furthermore, in light of the victim’s
injuries in this case, we further conclude that a sentence of full probation would depreciate
the seriousness of the offense. Accordingly, we conclude that the trial court properly denied
full probation in this case.


       As to the trial court’s denial of community corrections, the State correctly notes that
a defendant convicted of a violent offense is generally precluded from community corrections
placement. Tenn. Code Ann. § 40-36-106(a)(C). However, a defendant may qualify for
community corrections based upon the special needs provision found at Tennessee Code
Annotated section 40-36-106(c) which provides that:


              Felony offenders not otherwise eligible under subsection (a), and who
       would be usually considered unfit for probation due to histories of chronic
       alcohol or drug abuse, or mental health problems, but whose special needs are
       treatable and could be served best in the community rather than in a
       correctional institution, may be considered eligible for punishment in the
       community under this chapter.




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The trial court failed to make any specific findings regarding the Defendant’s suitability for
community corrections. However, the record shows that the Defendant has a history of
severe depression and suicide attempts stemming from a broken relationship with his
girlfriend. His history of mental health issues predates the offense in this case but, based
upon the record before this court, does not seem to have contributed to the Defendant’s
criminal conduct. Furthermore, the Defendant expressed no chronic drug or alcohol abuse
– testifying instead that he had stopped consuming alcohol after this offense. Under these
circumstances, we conclude that the Defendant was not a suitable candidate for community
corrections. See State v. Boston, 938 S.W.2d 435, 439 (Tenn. Crim. App. 1996).


                                      CONCLUSION


       In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed as modified. Upon remand, the trial court is directed to enter a modified
judgment consistent with this court’s opinion.


                                                   ___________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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