             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                           OCTOBER 1997 SESSION
                                                           April 23, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,               )    No. 01C01-9612-CC-00520
                                  )
      Appellee                    )
                                  )    WILLIAMSON COUNTY
V.                                )
                                  )    HON. DONALD P. HARRIS,
TRACIE JENKINS and                )    JUDGE
DAVID RAGSDALE                    )
                                  )
      Appellants.                 )    (Sentencing)
                                  )
                                  )


For the Appellants:                    For the Appellee:

Lee Ofman                              John Knox Walkup
317 Main Street                        Attorney General and Reporter
Suite 208
Franklin, TN 37064                     Ellen H. Pollack
(For appellant Jenkins)                Assistant Attorney General
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493
John S. Colley, III
Colley & Colley
P.O. Box 1476                          Joseph D. Baugh, Jr.
Columbia, TN 38402                     District Attorney General
(For appellant Ragsdale)               Williamson County Courthouse
                                       P.O. Box 937
                                       Franklin, TN 37065




OPINION FILED: ___________________



AFFIRMED



William M. Barker, Judge
                                               OPINION


       The appellants, Tracie Jenkins and David Ragsdale,1 appeal as of right the

sentences they received in the Williamson County Circuit Court upon their pleas of

guilty to the offense of voluntary manslaughter. Appellants each received five-year

sentences in the Department of Correction. However, the trial court ordered split

confinement by requiring that appellants serve one year in the Williamson County

Workhouse and then be placed on intensive probation for six years.

       On appeal, appellants argue that they should have been granted full probation.

Appellant Jenkins also contends that the trial court did not properly consider weekend

service of the incarceration period in her case. Additionally, she argues that the State

violated an agreement to not contest probation at the sentencing hearing. We affirm

the trial court.

       On the evening of October 23, 1995, the appellants, along with co-defendant

Scotty Dickerson, were involved in a vehicle chase with Anthony Anglin in Spring Hill.

Anglin had assaulted a mutual friend of the appellants and Dickerson one month

earlier and the chase was apparently in retaliation. Appellant Ragsdale was driving

Jenkins’ Toyota pickup truck and Anglin was also driving a small pickup truck.

Anglin’s girlfriend, Stacey Grissom, and her sister Shannon were passengers in the

Anglin vehicle. The chase occurred on Highway 31 in Williamson County with the

vehicles passing one another and the occupants of the vehicles making obscene

gestures at one another. Speeds ranged from sixty (60) miles per hour to one

hundred (100) miles per hour.

       Ragsdale’s hunting rifle was in the back of Jenkins’ truck. He had placed it

there earlier that evening when the threesome drove to a field looking for deer. At

some point during the chase, Jenkins suggested that they shoot at the tires or tailgate




       1
           These cases were consolidated for appeal by order of this Court on February 27, 1997.

                                                    2
on Anglin’s truck to scare them or “to slow them down.”2 Jenkins reached through the

sliding-glass window of the truck and obtained the hunting rifle from the truck bed.

She removed the gun from its case and handed it to Dickerson. Dickerson leaned out

the truck window on the passenger’s side and fired two shots. 3 After the shots were

fired, Ragsdale slowed down, but they continued to follow the Anglin truck. Ragsdale

soon noticed that the hazard lights on Anglin’s truck were flashing. He observed

Anglin drive toward the local hospital. Ragsdale then drove by the hospital and saw

Anglin’s truck at the emergency room. Although suspecting that someone may have

been injured, the threesome drove away from the hospital and went home.

         The two shots Dickerson fired from the rifle struck Stacey Grissom, Anglin’s

girlfriend, and killed her. Her death was caused by one bullet in the lower back and

one bullet in the back of the head. Appellants and Dickerson were arrested only hours

after the incident and gave statements to the authorities. Subsequently, they were

indicted for the first degree premeditated murder of Stacey Grissom.4

         The trial was slated to begin on July 22, 1996. After two days of voir dire, a jury

was empaneled. On the morning of the third day, appellants entered into a plea

agreement with the district attorney to the lesser offense of voluntary manslaughter,

which was accepted by the trial court. The negotiated plea contained no agreement

on the sentences. At a subsequent sentencing hearing, the trial court ordered five

years in the Department of Correction. The sentence was suspended, however, and

appellants were granted the alternative of split confinement. Appellants were ordered




         2
          In the state men ts given to a uthorities, it is unc lear who sugge sted sh ooting the tires or tailgate.
Similarly, the testimony from the appellants and Dickerson at the sentencing hearing conflicted on that
issue. However, when the appellants were sentenced, the trial judge stated that he was satisfied that
Jenk ins ma de the su ggestion .

         3
          Dickerson testified at the sentencing hearing that he fired one shot “up in the air” and one shot
“down a t the groun d.”

         4
          Ragsdale and Dickerson were also charged with felony reckless endangerment for an incident
occurring earlier that evening. A part of the plea agreement reduced that charge to misdemeanor
reck less enda nge rm ent to be trie d bef ore a jury. T he dis pos ition o f that c harg e is no t relev ant to this
app eal.

                                                          3
to serve one year in the county workhouse and then placed on intensive probation for

six years.

       When a defendant challenges his or her sentence, we must conduct a de novo

review of the record. Tenn. Code Ann. §40-35-401(d) (1990). The sentence imposed

by the trial court is accompanied by a presumption of correctness and the appealing

party carries the burden of showing that the sentence is improper. Tenn. Code Ann.

§40-35-401 Sentencing Commission Comments. The presumption, however, is

conditioned upon an 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). Because of the rationale used by the trial court in

determining the manner of service of these sentences, we are unable to afford the trial

court’s judgment the presumption of correctness.

       Appellants were convicted of a Class C felony and, thus, presumed favorable

candidates for alternative sentencing, absent evidence to the contrary. Tenn. Code

Ann. §40-35-102(6) (Supp. 1995). Accordingly, the trial court suspended the

Department of Correction sentence and placed appellants on intensive probation for

six years. Nevertheless, the trial court believed some period of incarceration was

necessary to avoid depreciating the seriousness of the offense. See Tenn. Code Ann.

§40-35-103(1)(B) (1990). Weighing that factor against the appellants’ potential for

rehabilitation and the least severe measure necessary, the trial court ordered

incarceration in the county workhouse for a period of one year. Tenn. Code Ann. §40-

35-103(4), (5) (1990). Appellants’ resulting sentence was one of split confinement, a

proper sentencing alternative. Tenn. Code Ann. §40-35-306(a) (1990); Tenn. Code

Ann. §40-35-104(c)(4) (Supp. 1995); State v. Dowdy, 894 S.W.2d 301, 304 (Tenn.

Crim. App. 1994).

       Tennessee Code Annotated section 40-35-306(a) provides that:

       A defendant receiving probation may be required to serve a portion of
       the sentence in continuous confinement for up to one (1) year in the


                                           4
       local jail or workhouse, with probation for a period of time up to and
       including the statutory maximum time for the class of the conviction
       offense.

The statute expressly permits the one-year workhouse sentence. Moreover, the six-

year probationary period does not exceed the fifteen year maximum sentence for the

class of the offense. See Tenn. Code Ann. §40-35-111(b)(3) (1990). In addition,

considering the trial court’s comments about the appellants’ potential for rehabilitation

and the least severe measure, the alternative sentence chosen by the trial court was

tailored specifically for the appellants considering the applicable sentencing principles.

See Dowdy, 894 S.W.2d at 305 (stating that individualized punishment is the essence

of alternative sentencing).

       Although the trial court properly considered relevant sentencing principles, it

incorrectly considered the amount of time the appellants would serve if they were

placed in the Department of Correction. Considering the thirty percent release

eligibility date, combined with good time credits, and the likelihood that appellants

would be paroled upon their first opportunity, the trial court believed appellants could

serve less than one year in the Department of Correction. As a result, it ordered a

sentence of split confinement to ensure the incarceration period and retain jurisdiction

of the appellants. Employing such a rationale is not permitted by statute.

       A portion of the Sentencing Reform Act of 1989, codified at Tennessee Code

Annotated section 40-35-210, established a number of specific procedures to be

followed in sentencing. That section mandates the court’s consideration of the

following when determining a sentence:

       (1) The evidence, if any received at the trial and the sentencing hearing;
       (2) [t]he presentence report; (3) [t]he principles of sentencing and
       arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

Another provision requires trial courts to base sentences upon “evidence in the record

of the trial, the sentencing hearing, the presentence report, and, the record of prior

                                            5
felony convictions filed by the district attorney general with the court as required by

§40-35-202(a).” Tenn. Code Ann. §40-35-210(g) (Supp. 1995).

         Neither the release eligibility date nor good time credits are listed as matters

which may be considered in arriving at a sentence.5 Nevertheless, our de novo review

of the record leads us to affirm the judgment of the trial court. The trial court did

correctly articulate relevant sentencing considerations, such as the appellants’

potential for rehabilitation and avoiding depreciation of a serious offense, in

determining that a period of incarceration was warranted. Those findings are

supported by the record.

         We do not agree with appellants’ assertion that the trial court erred in denying

them full probation based on the nature of the offense. We recognize that the

circumstances of the offense must be especially violent, shocking, reprehensible,

offensive, or of an exaggerated degree to overcome the presumption of alternative

sentencing and require total confinement based solely on the seriousness of the

offense. State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995) (citations

omitted). The trial court did not make such a finding here and appellants were

correctly accorded the presumption of alternative sentencing. However, the facts and

circumstances which surrounded the criminal act were of a sufficient degree to

warrant a denial of full probation. Id. at 456. Just as this Court said in Bingham,

“[a]lthough we have determined that the circumstances of the offense are not

egregious enough by themselves to overcome the presumption of alternative

sentencing, we conclude that they are sufficiently reprehensible to deny full probation.”

Id.




         5
         Serv ice of the p erce ntag e req uired for re leas e eligib ility is m erely th e ear liest p oss ible pa role
date; there is no guarantee a defendant will be paroled on that date. Tenn. Code Ann. §40-35-501(k)
(Supp. 1995); Tenn. Code Ann. §40-35-503(b) (Supp. 1995). Furthermore, the accumulation of good
time credits is wholly dependent on the individual’s behavior while incarcerated. Therefore, premising a
sentence on the potential for parole and good time credits not only contravenes the statute, it is also
speculative.

                                                           6
         The appellants should have recognized the dangerous and reckless nature of

their actions. Had they only considered the consequences of their “insane act,” the

senseless death of a young mother would not have occurred. Their lack of concern

and utter disregard for the victim in this case, as evidenced by their flight from the

hospital while aware that they had injured someone, militates against probation.

Instead of taking responsibility for their actions by reporting the incident, appellants

simply went home and went to sleep. Their conduct in that respect is offensive,

shocking, and reprehensible. We conclude, as the trial court did, that the

circumstances justify a term of incarceration and split confinement was a proper

alternative. Appellants have not shown that they were entitled to full probation.

         Appellant Jenkins contends the trial court did not properly consider whether she

should be permitted to serve her sentence on weekends. In that respect, appellant

believes it especially relevant that she is now a mother.6

         The trial court has jurisdiction over the manner of service of a sentence. Tenn.

Code Ann. §40-35-212(a) (1990). When placing a defendant on probation, the

statutes permit the trial court to order a period of continuous confinement or periodic

confinement. Tenn. Code Ann. §§40-35-306 - 307 (1990). The latter statutory

provision states that a defendant may be allowed to serve the incarceration period on

weekends. Tenn. Code Ann. §40-35-307(c) (1990).

         A trial court ordering probation is vested with a great deal of discretion in the

conditions placed on the probationer. Tenn. Code Ann. §40-35-303 Sentencing

Commission Comments. As a result, whether a probationer is required to serve some

incarceration period either continuously or periodically is within the trial court’s

discretion. We believe the legislature intended to permit trial courts to choose

between these options depending on circumstances as they exist in each case. While




         6
         Jen kins beca me preg nan t sho rtly afte r the s hoo ting a nd he r child was five w eek s old a t the tim e
of sentencing. Appellant Ragsdale is the father of the child.

                                                          7
Jenkins’ new motherhood is a persuasive factor, the trial court clearly felt that

continuous incarceration was necessary. We cannot say that is unreasonable or

excessive.

       In the final issue on appeal, Jenkins contends that the district attorney failed to

comply with the terms of the plea bargain agreement. She argues that as part of the

plea bargain agreement, the district attorney agreed not to oppose probation. The

district attorney advised the trial court that he had no recollection of such a provision.

The written plea agreement does not contain such an agreement. Without making a

factual finding regarding the existence of an agreement not to oppose probation, the

trial court stated that its judgment regarding Jenkins’ sentence was based entirely on

the evidence and the law and not any position taken by the district attorney.

Therefore, no prejudice was suffered by this appellant even if the district attorney did

breach the agreement. This issue is without merit.

       Our de novo review of the sentences imposed in this case reflects that they are

proper and in accordance with the sentencing act. While partially supported by

improper considerations, relevant sentencing principles warrant the manner of service.

We affirm the judgment of the trial court.



                                                  _______________________________
                                                  William M. Barker, Judge



____________________________
Joe B. Jones, Presiding Judge



____________________________
Joe G. Riley, Judge




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