When is Confinement Appropriate in Sentencing versus Probation?

October 16, 2013

Joshua Taylor pleaded guilty to possession of .5 grams or more of cocaine with the intent to sell and simple possession of marijuana. Taylor received an effective sentence of eight years, with the manner of service to be determined by the trial court. Taylor asked for probation or to be sentenced to community corrections. Following a sentencing hearing, he was ordered to serve his sentence in confinement. Taylor appealed, arguing that the trial court erred in denying alternative sentencing.

Evidence and testimony at sentencing hearing established that Taylor had multiple prior misdemeanor convictions, including a prior conviction for simple possession of a Schedule VI controlled substance, and three probation violations. He also was on probation at the time he was arrested for these offenses. In denying alternative sentencing, the trial court concluded it not appropriate because Taylor had a long history of criminal conduct and less restrictive measures than confinement had been attempted unsuccessfully. In the same light, possession of .5 grams or more of cocaine with intent to sell is a Class B felony, which is not in the class of convictions statutorily considered as favorable for alternative sentencing.

Judge Jeffery S. Bivins of the Court of Criminal Appeals of Tennessee at Nashville stated in his written opinion, that prior to imposing a sentence, a trial court must look at these factors:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(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 mitigating and enhancement factors set out in Tennessee Statutes;

(6) Any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own behalf about sentencing.

The principles of sentencing include:  (i) imposition of a sentence justly deserved in relation to the seriousness of the offense; and (ii) encouraging effective rehabilitation of those defendants, where reasonably feasible, by promoting the use of alternative sentencing and correctional programs. Citing earlier case law, Judge Bivins stated that the sentence imposed should be the “least severe measure necessary to achieve the purposes for which the sentence is imposed,” and “[t]he potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the sentence alternative or length of a term to be imposed.”

A sentence including confinement should be based on the following considerations:

(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;

(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 applied unsuccessfully to the defendant.

When the record shows that the trial court imposed a sentence within the appropriate range that reflects a “proper application of the purposes and principles of our Sentencing Act,” the Criminal Court of Appeals reviews the trial court’s decision for an abuse of discretion with a presumption of reasonableness. Judge Bivins also noted that the Tennessee Supreme Court has held that on issues of probation or any other alternative sentence, a trial court’s misapplication of an enhancement or mitigating factor doesn’t remove the presumption of reasonableness from its sentencing decision.  The appellate court will uphold the trial court’s sentencing decision, the judge stated, as long as it was within the appropriate range, and the record demonstrates that the sentence is otherwise in compliance with the purposes and principles listed by statute. Further, Bivins explained that under such circumstances, the Criminal Court of Appeals cannot disturb the sentence even if it preferred a different result—the party appealing the sentence has the burden of demonstrating its impropriety.

Based on the trial court’s consideration of all of the evidence, testimony, and statutory provisions, it concluded that Taylor was not an appropriate candidate for alternative sentencing and ordered Taylor to serve his entire sentence in confinement. The Criminal Court of Appeals concluded that the trial court did not abuse its discretion in denying Taylor’s request for alternative sentencing.  The judgment was affirmed.  State v. Taylor, Slip Copy, 2013 WL 5761305 (Tenn.Crim.App. Oct. 22, 2013)

Do you have questions about sentencing, probation, or other issues in a criminal case?

Kevin Patterson has been providing professional legal services to individuals and businesses in the greater Memphis area since 1983.  Kevin will treat your legal issue with the dedicated service and attention it deserves. Call Kevin at (901) 300-4820 or e-mail at kpatterson@kgplawfirm.com to talk to him about your legal matter.

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