             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE             FILED
                         JANUARY 1998 SESSION
                                                          June 16, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE               )
                                 )    NO. 03C01-9706-CC-00211
      Appellee                   )
                                 )    COCKE COUNTY
v.                               )
                                 )    HON. REX HENRY OGLE
CHRISTINE D. GILLILAND           )
                                 )    (Sentencing)
      Appellant.                 )
                                 )
                                 )


For the Appellant:                    For the Appellee:

Tim S. Moore                          John Knox Walkup
396 Moore Brand Way                   Attorney General & Reporter
Newport, TN. 37821
                                      Sandy C. Patrick
                                      Assistant Attorney General
                                      2nd Floor Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN. 37243-0943

                                      Alfred C. Schmutzer, Jr.
                                      District Attorney General

                                      Charles E. Atchley, Jr.
                                      Assistant District Attorney General
                                      Sevier County Courthouse
                                      125 Court Avenue, Suite 301
                                      Sevierville, TN. 37862




OPINION FILED:____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                              OPINION

         The appellant, Christine D. Gilliland, appeals as of right the sentence she

received following a guilty plea in the Circuit Court of Cocke County. Pursuant to a

plea agreement, appellant pled guilty to aggravated assault and received a six (6) year

sentence. The trial court ordered her to serve one hundred and twenty (120) days,

day for day, in the Tennessee Department of Correction, with the remainder of her

sentence to be served in supervised probation. Appellant was also required to pay

restitution in the amount of $1,761 dollars for the victim’s medical expenses.

         On appeal, the appellant contends that she is entitled to full probation and that

the order of restitution should not have accompanied her sentence of confinement.

After a review of the record and applicable law, we affirm the judgment of the trial

court.

         This case is yet another illustration of how jealousy can lead to violence. On

the evening of March 20, 1996, the appellant shot the victim, Nancy Raines Frazier, at

point blank range. The shooting occurred around 9:30 p.m. after the appellant

returned home and discovered her then boyfriend, Albert Frazier, engaged in sexual

intercourse with the victim.1 The appellant, armed with a .38 caliber pistol,

approached the couple in the living room before they noticed her presence. Upon

discovering appellant with the gun, the two jumped up and pleaded for her not to

shoot. Nevertheless, appellant pointed her weapon at the victim and fired a bullet

striking her in the right cheek bone. The bullet fractured the victim’s jaw and exited

through her right ear. The victim immediately fled out the back door and went to a

neighbor’s house to call 911.

         The victim testified at the sentencing hearing that she was unaware of her

injury until blood began to run down her face. She was taken by ambulance to a



         1
          At the time of the shooting, appellant and Mr. Frazier lived together and owned the house
jointly. The appellant apparently spent many nights away from home while working as a truck driver for
the United States Postal Service.

                                                   2
nearby hospital and given medical treatment there for two days. The bullet wound

caused her to suffer physical injuries including a broken jaw, temporary blindness,

nerve damage, loss of a tear-duct gland in her right eye, sinus trouble, and forty

percent hearing loss in her right ear. The victim testified that her medical expenses

totaled approximately seventeen hundred ($1,700) to eighteen hundred ($1,800)

dollars.

         The appellant testified that she did not intend to shoot the victim and that the

entire incident was a mistake. According to appellant, she fired the gun with the sole

intention of scaring the victim and Mr. Frazier. She contended that the victim

somehow jumped into the path of the bullet when she and Mr. Frazier arose from the

living room floor.

         Appellant further testified that she owned the .38 caliber pistol and carried it for

protection while working as a truck driver. She stated that although she normally kept

the pistol in her truck, she brought it into the house on the night of the shooting. She

denied knowing that the victim was with Mr. Frazier before entering the house.2

         The Cocke County Grand Jury indicted appellant on attempted second degree

murder and aggravated assault. Following plea negotiations, appellant entered a

guilty plea to aggravated assault and received a six (6) year sentence.3 The manner

of serving her sentence, however, was to be determined by the trial court following a

sentencing hearing. According, after conducting a sentencing hearing, the trial court

ordered that the six (6) year sentence was to be suspended upon service of one

hundred and twenty (120) days in jail. The trial court further ordered restitution in the

amount of $1,761 as a condition of probation.




         2
          There was evidence that the appellant had caught Mr. Frazier together with the victim on a prior
occ asio n. Th e app ellant , how ever , testif ied th at sh e did n ot su spe ct Mr . Fraz ier of b eing w ith the victim
on the night in question. To the contrary, she stated that she did not see the victim’s car parked at the
house and that s he firm ly believed M r. Frazier ha d ende d his relation ship with the victim.

         3
             Under the plea agreement, the prosecution agreed to dismiss the attempted murder charge.

                                                            3
                                                        I.

         The appellant first contends that she is entitled to full probation for her six (6)

year sentence. This issue is without merit.

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

novo review of the record. See Tenn. Code Ann. § 40-35-401(d) (Supp. 1996). The

sentence imposed by the trial court is accompanied by a presumption of correctness

and the appealing party has the burden of showing that the sentence is improper.

See Tenn. Code Ann. § 40-35-401 (Sentencing Commission Comments). However,

the presumption of correctness is conditioned upon an affirmative showing in the

record that the trial court considered the sentencing principles and all relevant factors

and circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

         To determine the appropriate sentence, the trial court must consider the

following: (1) evidence from the trial and sentencing hearing; (2) the presentence

report; (3) the principles of sentencing and the arguments concerning sentencing

alternatives; (4) the nature and characteristics of the offense; (5) information offered

by the State or the defendant concerning enhancing or mitigating factors; and (6) the

defendant’s statements in her own behalf about sentencing. See Tenn. Code Ann. §

40-35-210(b); see also State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

         In this case, the trial court considered the evidence from the sentencing

hearing, the presentence report, the circumstances of the offense, and the arguments

of counsel before ordering the appellant to serve one hundred and twenty (120) days

in confinement. We, therefore, review appellant’s sentence with a presumption of

correctness.

         The appellant was a presumable candidate for alternative sentencing under

Tennessee Code Annotated section 40-35-102.4 She pled guilty to aggravated

         4
          Ten nes see Cod e An nota ted s ectio n 40- 35-1 02(5 ) prov ides that c onvic ted fe lons who com mit
the most severe offenses, possess criminal histories, or demonstrate an inability to reform under past
efforts at rehabilitation shall be given first priority for sentences involving incarceration. Under section
40-35-102(6), “[a] defendant who does not fall within the parameters of subdivision (5) and is an
especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a

                                                        4
assault, a Class C felony, and was sentenced as a Range I standard offender. The

trial court noted that presumption and ordered appellant to serve the remainder of her

six (6) year sentence on supervised probation, upon completion of the initial jail term.

         The trial court, however, determined that the appellant was not entitled to full

probation. Based upon the risk of death and the degree of injury caused by

appellant’s actions, the trial court ruled that one hundred and twenty (120) days of

incarceration was appropriate. On appeal, the appellant has the burden of showing

that the manner of her sentence was erroneous and that she is entitled to full

probation.5

         There is no bright line rule for determining when probation should be granted.

Nevertheless, the appellant must demonstrate that probation will “subserve the ends

of justice and the best interest of both the public and the defendant.” See State v.

Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990). The following criteria is

relevant to that determination: (1) the nature and circumstances of the criminal

conduct; (2) the appellant’s potential or lack of potential for rehabilitation, including the

risk that during the period of probation the appellant will commit another crime; (3)

whether a sentence of full probation would unduly depreciate the seriousness of the

offense; and (4) whether a sentence other than full probation would provide an

effective deterrent to others likely to commit similar offenses. See State v. Bingham,

910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1995).

        The appellant does not rely upon those factors, but instead, contends that a

probationary sentence is appropriate based upon her willingness to plead guilty and

her status as a first-time offender. We disagree. The record reflects that the trial

court focused on the violent nature of appellant’s offense to deny full probation. The

court found that the appellant’s act of shooting a defenseless victim at point blank


favorab le candid ate for altern ative sen tencing o ptions in the absen ce of ev idence to the contra ry.”

         5
          Even though appellant was a presumable candidate for alternative sentencing, she had the
burden of estab lishing suitab ility for full probation. See Tenn. Code A nn. § 40-35-303(b) (Supp. 199 6);
State v. Bingham, 910 S.W .2d 448, 4 55 (Te nn. Crim . App. 199 5), perm. app. denied (Tenn. 1995).

                                                        5
range was both “atrocious” and life threatening. That finding was clearly within the

discretion of the trial court and the appellant has failed to demonstrate error.

        This Court has previously held that the circumstances surrounding a criminal

offense may provide the sole basis for denying probation when they are of such a

nature as to outweigh all other factors favoring probation. See State v. Fletcher, 805

S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). We conclude that the circumstances in

this case justify confinement and accordingly affirm the denial of full probation.

                                                      II.

        The appellant next contends that the trial court erred in ordering both

incarceration and the payment of restitution. She argues that the sentencing laws in

effect at the time of her offense precluded the order of restitution as part of a custodial

sentence.

        We conclude that the order of restitution was proper as a condition of

appellant’s supervised probation. Tenn. Code Ann. § 40-35-304(a) (Supp. 1996).

        The appellant was sentenced in 1997 for the aggravated assault committed on

March 20, 1996. Her sentence included a one hundred and twenty (120) day jail term,

a subsequent period of supervised probation, and an order to pay $1,761 dollars in

restitution. The appellant contends that restitution was improper in conjunction with

her sentence of confinement. The record, however, reflects that restitution was

imposed as a condition of appellant’s supervised probation, not as a part of the

custodial sentence.

        While we agree that, at the time of appellant’s offense, the trial court lacked

authority to order restitution as part of incarceration,6 we conclude that restitution was

proper in this case. Tennessee Code Annotated section 40-35-304(a) authorizes trial

courts to impose restitution as a condition of probation. The appellant was ordered to

        6
          See State v. Da vis, 940 S.W.2d 558, 562 (Tenn. 1997) (holding that restitution may only be
imposed as a condition of a probationary sentence). In Dav is, our supreme c ourt noted that, effective
July 1, 1996 , the state leg islature am ended Tenn essee Code Annota ted sec tion 40-35 -104(c )(2), to
allow restitution together with a sen tence o f confine men t. See 940 S .W .2d a t 561 , n.6. H owe ver, in
appellan t’s case, th at am ended statute wa s not in effe ct when she co mm itted the agg ravated assau lt.

                                                       6
serve the remainder of her six (6) year sentence on supervised probation after

completion of her jail term. Restitution to compensate the victim’s medical expenses

was specifically made a part of the subsequent probation.

       In sum, we affirm the trial court’s denial of full probation and conclude that the

order of restitution was proper as a condition of appellant’s supervised probation.

Accordingly, the judgment of the trial court is affirmed.



                                                 ___________________________
                                                 WILLIAM M. BARKER, JUDGE



CONCUR:


___________________________
JOSEPH M. TIPTON, JUDGE


___________________________
CURWOOD WITT, JR., JUDGE




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