             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE

                            APRIL 1998 SESSION
                                                           FILED
                                                             June 25, 1998

                                                          Cecil W. Crowson
                                   )                     Appellate Court Clerk
STATE OF TENNESSEE ,
          APPELLEE                 )
                                   )
VS.                                )     C.C.A. No. 01C01-9707-CC-00252
                                   )     LAWRENCE COUNTY
                                   )     Honorable Jam es Weatherford
RODNEY J. D. SMITH                 )
          APPELLANT.               )     (SENTENCING)




FOR THE APPELLANT                        FOR THE APPELLEE

Shara A. Flacy                           John Knox Walkup
Public Defender                          Attorney General and Reporter
22nd Judicial District                   425 Fifth Avenue, N.
128 N. S econd S t.                      Nashville, TN 37243
Pulaski, TN 38478

Daniel J. Runde                          Karen M. Yacuzzo
Assistant Public Defender                Assistant Attorney General
22nd Judicial District                   425 Fifth Avenue, N.
128 N. S econd S t.                      Nashville, TN 378243
Pulaski, TN 38478
                                         Mike Bottoms
                                         District Attorney General
                                         P. O. Box 459
                                         Lawrenceburg, TN 38464

                                         James G . White
                                         Assistant District Attorney General
                                         P. O. Box 459
                                         Lawrenceburg, TN 38464



OPINION FILED: _______________________


AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE
                                OPINION
       The defendan t presents an appeal as of righ t from the judgm ent of the trial court

denying probation or an alternative sentence. On December 6, 1996, the defendant

entered a plea of nolo contendere in cause #15,529 to facilitation to commit murder

second degree, agreeing to a sentence of eight (8) years; in cause #15, 298, to the

offense of ro bbery, agre eing to a sen tence of thre e (3) years c onsecutive to #15, 529 ; in

cause #15, 299, in counts one and two to the offense of robbery, agreeing to a sentence

of six (6) yea rs concurre ntly on eac h count; in c ause # 15 ,300, in cou nts one an d two to

the offense of robbery, agreeing to a sentence of six (6) years concurrently on each

count; and in cause #15,301 to the offense of robbery, agreeing to a sentence of four (4)

years consecutive to cau ses #15,529 and #15,298. The ag reed sentence w as a Range I,

maximum of 15 years and it was understood the defendant would seek probation or an

alternativ e senten ce.

       As part of the plea agreement, the State agreed to nolle prosequi causes #15,283

and #15 ,284, safe-cra cking and burglary th ird degree; # 15,331 m aking a false report to

police; and #15,364 burglary second degree.

       After a review of the record and applicable law, we find that the trial court did

not err in denyin g the de fendan t’s reque st for pro bation a nd/or a n alterna tive sen tence.

The trial court’s judgment is affirmed.




                                            HISTORY

       The facts in this record are somewhat unusual in that the commission of these

offenses occurred in 1988-89, and the conclusion was in 1997. The record establishes,

originally, the defendant was accused in cause #15,297 of felony murder and armed

robbery of Bartlett M arston on January 2 9, 1989, via a knife. The defendant’s brother,

James E. Sm ith, Jr., and uncle, Michael M cConnell were indicted as co-defendan ts. In


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causes #15,298, #15,299, #15,300 and #15,301, the defendant was accused of six counts of

armed robbery involving six different victims between January 22, 1989, and January 30,

1989. The defendant, also, had been accused in causes #15,283 and #15,284 with safe-

cracking/burglary third, on January 17, 1989; #15,331, making false report on December

10, 1988; and #15,364, burglary second on December 20, 1988.

       The reco rd reflects that th e defenda nt and his b rother, Jam es E. Sm ith, Jr., went

to trial on indictment #15,297 on May 6, 1991, before the Honorable William B. Cain,

Crim inal Co urt for L awren ce Co unty. O n Nov embe r 20, 19 90, the c o-defe ndant,

Michael M cConnell, had plead guilty to murder secon d degree, receiving a sen tence of

70 years. As part of his plea agreement, McConnell agreed to testify in behalf of the

State against both Smiths. McConnell, upon being called as a witness, refused to honor

his plea agreement and refused to testify against the Smiths. In an out of jury hearing,

McConnell did testify the Smiths were a part of the murder of Bartlett Marston. On

May 8, Judg e Cain , after a co nversa tion wi th the as sistant D istrict Att orney G eneral,

sua spon te granted a mistrial. At re-trial, the defendant filed a motion to dismiss on the

grounds of double jeopardy. Special Judge Allen Cornelius denied the motion and

permitted an interlocutory appeal to the Court of Criminal Appeals. In State v. S mith,

871 S.W.2d 677 (Tenn. 1994), the Supreme Court denied the motion and remanded the

case fo r a new trial. The defend ant wa s then re indicted in #15,5 29 for fe lony m urder,

first degree murder, and armed robbery of Marston. The armed robbery accusations

were k nown in Law rence C ounty a s the “A mish ro bberies .”

       The record before us does not contain a transcript of the stipulated facts entered

at the plea proceedings as to the exact involvement of the defendant in these criminal

offenses. The State argues that since the defendant failed to include a transcript of the

plea hearing, this Court should not consider the merits of the defendant’s claim. The


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defendant counters tha t the entry of a plea of nolo contendere does not require the trial

court to accept a factual basis for the plea, citing Raybin, Tennessee Criminal Practice

and Procedure §§ 22.14, 22.102. We agree with the defendant that sufficient facts

were d evelop ed at the senten cing he aring fo r this Co urt to co nduct a proper review .

The State had am ple oppor tunity to sub mit this transc ript.

                                 SENTENCING HEARING

       The defe ndant sub mitted an a rray of imp ressive evid ence to assis t the trial court

in its determination of the request for probation and/or an alternative sentence. Testifying

for the defendant were his wife, Diana Smith and his employer, Steven Cheatwood. The

defendant also testified. Several certificates of awards, including a G.E.D. certificate

and five letters in support of the defendant’s request were admitted at the hearing.

       A summary to the evidence reveals that the defendant was released on bail in the

amount of $5 0,000 on June 1 0, 1991, while aw aiting a re-trial. Prior to the defendant’s

arrest, he had been trained as a Geriatric Nursing Assistant and was employed at the

Lawrenceburg Manor Nursing Home. The defendant was arrested February 2, 1989, for

these offenses. While in the Lawrence County Jail, the defendant achieved the status of

trustee a nd stud ied cou rses for o btaining a G.E.D ., which he obta ined up on relea se.

Upon release, the defendant found sporadic employment until November, 1991. During

September, 199 1, the defendant wa s married and sub sequently divorced. In N ovember

the defendant found employment at the Lawrencebu rg Manor Nursing Hom e as a nurse

technician where he met his wife, Diana Smith.

       Mrs. Smith testified that she worked with the defendant on and off for four years

at the nursing home. They married on October 7, 1994. Mrs. Smith had two children,

ages seven and eight, who treated the defendant as their father. Mrs. Smith describes

the defend ant’s relationsh ip with her c hildren as v ery good . He helps w ith their


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homework, assists in getting them ready for school and is supportive of her and the

children. The defendant has established a good relationship with Mrs. Smith’s family

by putt ing a ro of on h er aunt’ s hom e and h elping a family mem ber m ove to T enness ee.

Mrs. Smith describes her husband as a good worker, who brings his paycheck home

and does not drink or use illegal drugs. As to the murder charge, Mrs. Smith testified

that the defendant denies any involvement, but admits to the “Amish robberies” as

stupid and he “feels terrible about it.” In conclusion, Mrs. Smith loves her husband

and is sure he will abide by any conditions of probation or an alternative sentence

imposed by the Co urt.

       The defendant’s employer, Mr. Steven Cheatwood, testified he hired the

defendant in 1995 as a bricklayer. Mr. Cheatwood described the defendant as being

a very good worker, dependable, gets along well with his fellow employees and has no

drinking or drug problems. At the time of the hearing the defendant was making

$9.00/hour and if he remained employed, the defendant could expect $14.00/hour and

possibly be made a foreman. Mr. Cheatwood testified he would continue to employ the

defendant if Mr. Smith were placed on work release.

       In his testimony, the defendant described his family background, educational

progress and work history until these charges. The defendant corroborated the

testimony of his wife and employer about his family and employment history. The

defendan t tendered to the court the results of a po lygraph ex amination in regard to h is

alleged inv olveme nt in the M arston mu rder. It was a lleged the res ults would corrobora te

or support the defend ant’s claim of innocen ce. The trial court permitted, ove r the State’s

objection, a p roffer, but ruled the results w ould not b e considere d by the C ourt in its

determin ation. As to th e Marsto n murd er the defen dant cons istently main tained his

innocence and entered his nolo plea in order to bring “some resolution and some


                                                 5
resolvement to the case for all parties concerned, including the victim’s family.” In open

court, the defendant advised the Marston family, “I truly feel sorry for you and I hope

that this will bring some kind of resolution to you, and I’m truly sorry.” As to the

“Amish robberies,” the defendant admitted his involvement attributing the reason being

as “riding around, drinking, and smoking dope ... I was quite young, dumb, and stupid

and I’m here to take my responsibility for that.” There was little or no cross-examination

by the State of the defen dant.

       Mr. Steven Long, grandson of the victim Bartlett Marston, the murder victim,

testified it was n ot necessar y for the def endant to k ill his grandfath er and that th ey could

have done something else besides stabbing him sixteen times. The record established

that the victim was quite elderly, in po or health, an d had lim ited hearing . The Co urt

infers M r. Long was in oppos ition to a ny altern ative relie f for the d efenda nt. Also ,

Mrs. Virginia Long, daughter of the victim, testified about her father’s condition and

age of eighty-eight years. Mrs. Long was in opposition to any probation for the

defendan t.

       The trial court, in its opinion, set out several reasons for the denial of probation

and an alter native sente nce. The tria l court com mented on the defe ndant’s ach ievemen ts

upon release from jail, his steady employment, care of his family, and no legal problems

other than the seriousness of these multiple violent offenses. The trial court stated:

              Like I say, I th ink the State has show n mercy and I think th at this
       court has shown mercy in accepting the fifteen year sentence. But when I
       look at this record and every crime that I’m dealing with here is a crime of
       violence against a person, and I have to take into consideration the victims
       here wh ich, as I me ntioned, w as an eighty -eight year o ld man w ho was in
       poor physical condition and couldn’t move around without a walker, and
       then I believe every other person that was a victim was Mennonite, which as
       I mentioned is very passive people who don’t resist. They’ll give you
       whatever they’ve got, but they won’t resist. They won’t commit violence.

               So unde r these circum stances, I cou ld not feel satisfie d with this


                                                 6
       fifteen year sentence, which I feel shows mercy on the part to the state and
       the part of this court for accepting it, I feel that Mr. Smith has received an
       abundance of mercy in this case.

              I’m going to impose the sentence agreed upon between the State and
       the defendant, which is a fifteen year sentence and that will be to the
       Departmen t of Correction[].

                             SENTENCING CONSIDERATIONS

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

review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). Therefore,

the bur den of s howin g that the senten ce is im proper is upon the app ealing p arty. Id.

The presumption that determinations made by the trial court are correct is conditioned

upon the affirmative showing in the record that the trial court considered the sentencing

princip les and all releva nt facts a nd circu mstan ces. State v. Ashby, 823 S.W.2d 166

(Tenn. 19 91); State v. S mith, 898 S.W.2d 742 (Tenn. C rim. App. 1994 ).

       If appellate review reflects the trial court properly considered all relevant facts

and its finding of facts are adequately supported by the record, this Court must affirm

the sentences, “even if we would have preferred a different result.” State v. F letcher,

805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination

of an ap propria te senten ce, the tria l court m ust con sider (1) the evid ence, if a ny,

received at the plea of guilty or in these facts nolo contendere and the sentencing

hearing; (2) the pre-sentence 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 statem ents the defendant w ishes to make in the d efendant’s

behalf about the sentencing; and (7) the potential for rehabilitation or treatment. Tenn.

Code A nn. §§ 40 -35-102, -1 03, and -21 0 (a), (b) (199 7); State v. Holland, 860 S.W.2d

53 (Tenn. Crim . App. 1993).


                                                   7
       In this case the trial court wa s required to consider an application fo r full

probation or an alternative sen tence, such as work release, split confinement or

weekends in custody. Based on the decision of the trial judge to deny any relief we

conduct o ur review with the pre sumption that the trial judg e was co rrect.

                       PROBATION/ALTERNATIVE SENTENCE

       First, we will address the denial of full probation. Since the defendant entered

nolo pleas to the re duced of fenses of ro bbery, w hich are C lass C felon ies, the defen dant

is presumed to be a favorable candidate for probation, in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6). In State v. B ingham , 910 S.W.2d 448, 456

(Tenn. Crim. App. 1995), this Court cited four factors which, although “not controlling

the discretion of the sentencing court” should be considered in determining the

appropriateness of probation:

             (1) The nature and characteristics of the crime, under Tenn. Code
       Ann. § 40-35 -210 (b)(4) (1990);

             (2) The defendant’s potential for rehabilitation under Tenn. Code
       Ann. § 40-35 -103(5) (1990);

              (3) Whether full probation would “unduly depreciate the seriousness
       of the offense,” under Tenn. Code Ann. § 40-35-103(1)(B) (1990); and

              (4) Whether a sentence of full probation would “provide an effective
       deterrent” under Ten n. Code An n. § 40-35-103(1)(B ) (1990).

       As to the defenda nt’s plea of nolo contendere to the offens e of facilitation to

commit murder second degree, which is a Class B felony, the defendant is not entitled

to the presumption to be a favorable candidate for alternative sentence. Thus the burden

is on the defendant to estab lish reasonable ground s for relief.

       In arrivin g at its de cision, th e trial cou rt consid ered the require ments of Ten n.

Code An n. § 40-35-103(19 90):

       (1) Sentences involving confinement should be based on the following


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       considerations:

             (A) Confinement is necessary to protect society by restraining the
       defendan t who ha s a long histo ry of crimin al conduc t;

              (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 a pplied u nsucce ssfully to the defe ndant[ .]

       The trial court in its analysis commented on Tenn. Code Ann. § 40-35-103,

subsections (A) and (C) and, more particularly, the defendant’s lack of trouble with the

law sin ce relea se on b ail, fam ily relatio nships , and ste ady em ploym ent. Als o, Ten n.

Code Ann. § 40-35-103(C) was not applicable since the defendant had not been on

prior restrictive c onfinem ent. It is obviou s that the trial cou rt found “th at confinem ent

was necessary to avoid depreciating the seriousness of the offense” and believed the

violent nature and numerous offenses called for incarceration.

       The defendan t argues that the trial court utilized deterrence as an in valid factor

to deny alternative relief because there was no affirmative proof that these offenses

would a ct as a deterre nt to like-min ded perso ns in Law rence Co unty. The trial court

did not mention the word deterrence in its ruling b ut was referring to the first part of

Tenn. Code Ann. § 40-35 -130(B).

       This Court has held it was proper for trial courts to deny full probation because

of the nature and/or seriousness of offenses:

              In order to deny an alternative sentence based on the seriousness of
       the offense, “the circumstances of the offenses as committed must be
       especially violent, horrifying, shocking, reprehensive, offensive, or
       otherwise of an excessive or exaggerated degree,” and the nature of the
       offense must outweigh all factors favoring a sentence other than
       confinem ent.

Bingh am, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S .W.2d 370 (T enn. C rim.



                                                  9
App. 19 91)); Zeolia, supra at 462.

       The limited facts surroun ding the death of B artlett Marston, an eighty-eight-yea r-

old man in very poor health, stabbed 16 times without justification, and with less than

$100 s tolen fro m him , could v ery eas ily fall w ithin the descrip tive term s, supra.

       Also, the trial c ourt can co nsider that the se crimes in volved vio lence again st six

different indiv iduals with d eadly we apons, and one involv ed the dea th of an elde rly

person, combin ed with intoxication and abuse of drugs, in determ ining whether

probat ion or a n alterna tive sen tence is a pprop riate. State v. B utler, 880 S.W.2d 395,

(Tenn. C rim. App . 1994); State v. Gennoe, 851 S.W.2d 8 33 (Tenn. Crim . App. 1992);

State v. H ollingsw orth, 647 S.W.2d 937 (Tenn. 198 3).




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       In conclusion, we find the trial court did not abuse its discretion in denying an

alternative sen tence to the d efendant a nd affirm th e trial court’s jud gment.



                                                     _________________________
                                                     L. T. Lafferty, Special Judge

CONCUR:

_____________________________
Gary R. Wade, Presiding Judge

_____________________________
Thomas Woodall, Judge




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