State of Tennessee v. Tom Perry Bell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 26, 2011

STATE OF TENNESSEE v. TOM PERRY BELL

Direct Appeal from the Criminal Court for Hamilton County

No. 273468 Don W. Poole, Judge

No. E2010-01504-CCA-R3-CD - Filed January 6, 2012

A Hamilton County Grand Jury returned an indictment against Defendant, Tom Perry Bell,

for burglary, misdemeanor theft, possession of burglary tools, and vandalism valued at more

than $10,000. Defendant subsequently pled guilty to burglary, a Class D felony. The trial

court sentenced Defendant as a Range II, multiple offender, to eight years in the Department

of Correction. On appeal, Defendant argues that his sentence is excessive because the trial

court did not properly apply enhancement and mitigating factors. After a thorough review,

we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT

W ILLIAMS, J., joined. D AVID H. W ELLES, S P.J., not participating.

Kevin L. Loper, Chattanooga, Tennessee, for the appellant, Tom Perry Bell.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams,

Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Background

At the guilty plea hearing, the State gave the following factual basis for the offenses:

That on or about June 13th , 2009, the police were dispatched to 3506

Brainerd Road on an alarm call. This is a business. When they approached

the building, they saw the defendant inside of the business with a large

screwdriver in his hand. They surrounded the business, gave demands for

the defendant to get down on the ground and drop the screwdriver. They

took him into custody at that point, located a camera that was property of

the business in front pocket, right front pocket. There was also change that

was missing from the business. He was arrested and charged with the

offenses that I just read off.

I believe any further factual basis although not necessary - - well, and, of

course, people from the business did not give him permission to enter that

and take those items.

At the conclusion of the guilty plea hearing, the trial court accepted Defendant’s plea.

Sentencing Hearing

At the sentencing hearing, Jim Rox, an employee of the Tennessee Board of Probation

and Parole, testified that he prepared a presentence report in this case. He interviewed

Defendant at the Hamilton County Jail, and Defendant said: “It was ignorant of me to do

what I did.” Mr. Rox testified that Defendant indicated that he had not been employed “since

the 1990's, being incarcerated off and on since that time. He said last job he had was

working for a man named Charlie at a place called Auto Rebuilders during the 1999's.”

Mr. Rox testified that Defendant had a total of fifty-four prior convictions, at least

twelve of which were felony convictions. He said that Defendant was on probation for

criminal trespassing and unauthorized use of a vehicle when the present offense was

committed. Defendant’s probation for unauthorized use of a vehicle was revoked on July 8,

2009. Mr. Rox testified that Defendant also had his probation revoked in several other cases.

On cross-examination, Mr. Rox testified that Defendant said that he had not served

in any branch of the military. It would surprise him to know that Defendant was in the Army

from 1976-1977. Mr. Rox agreed that most of Defendant’s past crimes were property crimes;

however, he had two convictions for “criminal sexual conduct that happened back in 1979”

when he was twenty years old. Mr. Rox testified that Defendant was homeless.

II. Standard of Review

On appeal, the party challenging the sentence imposed by the trial court has the burden

of establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n

Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn.2001). When a defendant

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challenges the length, range, or manner of service of a sentence, it is the duty of this Court

to conduct a de novo review on the record with a presumption that the determinations made

by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d). This

presumption of correctness, however, “ ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however, the trial court applies

inappropriate mitigating and/or enhancement factors or otherwise fails to follow the

Sentencing Act, the presumption of correctness fails,” and our review is de novo. Carter,

254 S.W.3d at 345 (quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992);

State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004)).

In conducting a de novo review of a sentence, this Court must consider (a) the

evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) evidence and information offered by the

parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated

sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;

and (g) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70

S.W.3d 698, 704 (Tenn. 2002).

Tennessee’s sentencing act provides:

(c) The court shall impose a sentence within the range of punishment,

determined by whether the defendant is a mitigated, standard, persistent,

career, or repeat violent offender. In imposing a specific sentence within the

range of punishment, the court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the sentence that

should be imposed, because the general assembly set the minimum length of

sentence for each felony class to reflect the relative seriousness of each

criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate, by

the presence or absence of mitigating and enhancement factors set out in §§

40-35-113 and 40-35-114.

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T.C.A. § 40-35-210(c)(1)-(2).

The weight to be afforded an enhancement or mitigating factor is left to the trial

court’s discretion so long as its use complies with the purposes and principles of the 1989

Sentencing Act and the trial court’s findings are adequately supported by the record. Id. §

(d)-(f); Carter, 254 S.W.3d at 342-43. “An appellate court is therefore bound by a trial

court’s decision as to the length of the sentence imposed so long as it is imposed in a manner

consistent with the purposes and principles set out in . . . the Sentencing Act.” Carter, 254

S.W.3d at 346. Accordingly, on appeal we may only review whether the enhancement and

mitigating factors were supported by the record and their application was not otherwise

barred by statute. See Id.

Defendant was convicted of burglary, a Class D felony. As a Range II offender, he

was subject to a sentence of between four and eight years for the conviction. The trial court

applied the following enhancement factors: the defendant has a previous history of criminal

convictions or criminal behavior, in addition to those necessary to establish the appropriate

range; the defendant, before trial or sentencing failed to comply with the conditions of a

sentence involving release into the community; and the defendant was released on probation

at the time of the felony. T.C.A. § 40-35-114 (1), (8), and (13)(C). As mitigating factors,

the trial court considered that Defendant’s conduct neither caused nor threatened serous

bodily injury and that he pled guilty. T.C.A. § 40-35-113 (9) and (13). On appeal,

Defendant argues that his sentence is excessive because the trial court failed to apply as

mitigating factors: the defendant, because of youth or old age, lacked substantial judgment

in committing the offense; and the defendant was motivated by a desire to provide necessities

for the defendant’s family or the defendant’s self. T.C.A. § 40-35-113(6) and (7). He further

argues that the trial court failed to give proper weight to the applicable mitigating factors.

The record reflects that the trial court considered the evidence presented at the guilty

plea acceptance hearing and at the sentencing hearing. The court further considered the

presentence report, the principles of sentencing and the arguments as to sentencing

alternatives, the nature and characteristics of the offenses, the evidence offered by the parties

on enhancement and mitigating factors, and the potential for rehabilitation or treatment. The

record in this case supports the trial court’s finding that Defendant has a previous history of

criminal convictions or criminal behavior in addition to those necessary to establish the

appropriate range. The presentence report indicates that Defendant has fifty-four prior

convictions, and that thirteen of them are felonies. At the sentencing hearing the trial court

noted that it gave “a lot of credence, or lot of credit or whatever, to having a previous

history.” The record also supports the trial court’s finding that Defendant failed to comply

with the conditions of a sentence involving release into the community and that Defendant

was released on probation at the time of the felony. The presentence reports reflects that

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Defendant’s probation in other cases had been revoked at least five different times, and he

was placed on probation for criminal trespass two days before the present offense occurred.

He was also on probation for unauthorized use of a vehicle. Concerning this issue, the trial

court further noted:

In regard to being on probation when these offenses occurred, in looking at the

presentence investigative report, it appears that the first seven misdemeanors

that you were on probation for, one on probation two days before this

happened, for trespass, [ ], the sentences were received on June 11, these

cases occurred on June the 13 th .

Six months, in regard to unauthorized use of a motor vehicle. You were on

probation for something that occurred on March the 20th , driving without a

license, you were revoked on March 20th , you were on probation.

Aggravated criminal trespass out of East Ridge occurring on November the 5 th ,

or the disposition date, you were on probation for that. You were on probation

for a theft out of East ridge, the disposition date was the same thing. You were

on probation for possession of burglary tools out of East Ridge November ‘05.

You were on probation when this occurred.

Therefore, the trial court properly applied enhancement factors (1), (8), and (13)(C).

As for the mitigating factors, the trial court considered that Defendant’s conduct in

the burglary of the Morgan Motor Company neither caused nor threatened serious bodily

injury and that the Defendant pled guilty. However, the trial court noted that the two factors

were entitled to a “small amount of credit.” The court also specifically said that it gave

Defendant’s plea of guilty “a slight amount of credit.” The trial court considered

Defendant’s age and found nothing to indicate that he “lacked judgment in regard to

committing [the] offenses.” The Court also considered whether Defendant was motivated

to provide necessities and found that nothing was presented to support application of that

factor. We agree with the trial court that Defendant has not presented anything to support

the application of these mitigating factors. There was no proof at the sentencing hearing that

because of Defendant’s age, he lacked any judgment in regard to committing the offense,

especially considering his prior criminal history of committing property-related crimes.

Likewise, although there was testimony that Defendant was homeless, there was no proof at

the sentencing hearing that he committed the burglary in this case to provide necessities.

As for Defendant’s arguments about the weight assigned by the trial court to the

enhancement and mitigating factors, we note that this is no longer grounds for appeal.

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Carter, 254 S.W.3d at 344. The record clearly shows that the trial court followed the

statutory sentencing procedure, made findings of facts that are adequately supported in the

record, and gave due consideration to the principles that are relevant to sentencing. Based on

our review, we conclude that the applicable enhancement factors considered by the trial court

adequately support the trial court’s discretionary decision to impose a sentence of eight years

for Defendant’s burglary conviction.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

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THOMAS T. WOODALL, JUDGE

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