State of Tennessee v. Travis Bronson a/k/a Terry Crusenberry

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 19, 2003

STATE OF TENNESSEE v. TRAVIS BRONSON, a/k/a

TERRY CRUSENBERRY

Direct Appeal from the Criminal Court for Sullivan County

No. S46,807 Phyllis H. Miller, Judge

No. E2003-00385-CCA-R3-CD

October 9, 2003

The defendant pled guilty to theft under $500 and was sentenced to eleven months, twenty-nine days

in the county jail at zero percent work release eligibility, to be served consecutively to a two-year

sentence in a separate case. On appeal, the defendant argues that the trial court erred in denying him

probation. Finding no error, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN

EVERETT WILLIAMS, JJ., joined.

Julie A. Rice, Contract Appellate Defender (on appeal); Stephen M. Wallace, District Public

Defender; and Leslie S. Hale, Assistant Public Defender (at trial), for the appellant, Travis Bronson,

a/k/a Terry Crusenberry.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Lewis Combs, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

On November 25, 2002, the defendant, Travis Bronson, a/k/a Terry Crusenberry, pled guilty

in the Sullivan County Criminal Court in case number S46,634 to criminal attempt to commit

robbery, a Class D felony, and possession of Lortab, which the trial court merged with the attempted

robbery, and in case number S46,807 to theft under $500, a Class A misdemeanor. At the guilty plea

hearing, the assistant district attorney general informed the court of the evidence the State would

have offered at trial:

The State’s case in S46,634 would have been had this case

gone to trial, that on June the 1st, 2002 the defendant entered the CVS

Pharmacy located on Virginia Avenue in Bristol, Tennessee . . . that

he approached the pharmacist’s desk, that he saw a bottle of Lortab

back behind the counter . . . rushed past the desk and grabbed the pills

and attempted to take them by force and started back towards the door

of the CVS Pharmacy. The State’s proof would be further that the

pharmacist, Dave Gilmore, tackled the defendant and pinned him to

the floor and held him there until the police could come and arrest

him. . . .

The State’s proof in S46,807 would be that the defendant

entered the Lowe’s store . . . in Kingsport . . . [and] selected and

concealed various merchandise from the store valued at forty dollars

and ninety-two cents ($40.92). It would be proof that he left the store

without paying for the merchandise, bypassed the registers, and he

was apprehended by Mr. Robbins outside and confessed to Mr.

Robbins that he had taken the property from Lowe’s that was taken

without consent.

The record establishes that the defendant’s theft of merchandise from the Lowe’s store

occurred on December 12, 2001. The record further establishes that he was out on bond for that

offense at the time he committed the attempted robbery of the CVS Pharmacy. Pursuant to his plea

agreement, the defendant was sentenced as a Range I, standard offender to two years for the

attempted robbery conviction and to eleven months, twenty-nine days for the theft conviction, with

the manner of service for the theft conviction to be determined by the trial court at a later sentencing

hearing.

The defendant testified at the January 30, 2003, sentencing hearing that his name was Terry

Crusenberry, but that he had used several aliases in the past, including Travis McCrosky and Travis

Bronson. He acknowledged the prior convictions listed on his presentence report were accurate,

although he testified he was unable to remember several of the traffic violations. He further

acknowledged he had a charge for misdemeanor failure to appear and a probation violation warrant

pending at the time the presentence report was prepared. The defendant admitted he had a drug

problem and said he was willing to undergo treatment to overcome it. He said he had, in fact, been

“thinking about going . . . straight to Magnolia Ridge,” a substance abuse treatment center, upon his

release from jail. He informed the trial court that he wished to be granted probation or some other

sentence involving release into the community so that he could be with his mother, who had had two

or three heart attacks and recently undergone open heart surgery, and could spend more time with

his children whom he had not seen in almost a year. The defendant testified he had three children,

ages seven, eight, and twelve, who presently lived with his wife. He said he provided support for

his children when he was working and had spoken to a former employer, a handicapped man who

owned a car lot, who told him he would rehire him as his assistant upon his release from jail.

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On cross-examination, the defendant testified he could reside with his employer if he had

nowhere else to live. He conceded his Virginia probation officer listed his address as “transient” on

a probation report, but he could not understand why she did so, saying that he lived with his mother

after her open heart surgery and provided his probation officer with her address. He acknowledged

the probation officer had also written in her report that his case was difficult to monitor and that she

did not consider him a good candidate for probation. The defendant explained he had been “on the

drugs real bad” at that time. He testified, however, that he had not used any drugs in the nine months

he had spent in jail, could now see what drugs had done to his life, and no longer desired to use

them.

Upon questioning by the trial court, the defendant acknowledged he was not married to the

woman he referred to as his wife. Asked about his presentence report, which stated his mother had

said she would not allow him to live with her, the defendant testified his mother denied saying that

and said that he was welcome to stay with her. However, he also testified he had already made

arrangements for a job and a place to live with his former employer. The defendant testified his

former employer knew him by the name “Crusenberry,” which was his girlfriend’s last name and one

he had first used when he was pulled over by the police while “strung out on the pills.”

The defendant admitted having once changed his address without informing his Virginia

probation officer. He explained he had moved in with some friends, but had been forced to move

when they failed to pay rent and subsequently abandoned the residence. He testified he had lived

in one motel in the Bristol, Virginia, area for two months during that time, but had informed his

probation officer of his address. He denied having told his probation officer he had stayed in various

motels in the area and said he was sure that information, which was in her report, “was all just a

mistake.”

At the conclusion of the hearing, the trial court found the defendant was not a suitable

candidate for probation or other alternative sentencing and accordingly sentenced him to serve his

eleven-month-twenty-nine-day sentence in confinement. Thereafter, the defendant filed a timely

appeal to this court, raising as his sole issue whether the trial court erred in ordering that he serve

his full sentence in confinement, rather than granting him probation.

ANALYSIS

The defendant contends the trial court erred in sentencing him because it failed to consider

two appropriate mitigating factors: his crime neither caused nor threatened serious bodily injury, and

he committed the theft under strong provocation. See Tenn. Code Ann. § 40-35-113(1), (2) (1997).

He argues mitigating factor (1) should have been applied based on the evidence he was apprehended

outside the Lowe’s store “with ease and without any indication of violence on his part whatsoever,”

and mitigating factor (2) should have been applied based on the evidence that his strong addiction

to pain medication caused him to commit the crime in order to fund his habit. The defendant

additionally argues that his addiction to pain pills and the withdrawal symptoms he was experiencing

at the time of his attempted robbery of the CVS Pharmacy should have been considered as a

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mitigating factor by the trial court under Tennessee Code Annotated section 40-35-113(13), the

“catchall” provision of the statute. He asserts an appropriate consideration and weighing of the

enhancement and mitigating factors by the trial court should have resulted in a partial probationary

sentence, rather than a sentence of full confinement. The State argues the trial court properly denied

probation based on the defendant’s extensive criminal history, lack of truthfulness, and history of

probation violations. We agree with the State.

Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,

which provides in part that the trial court shall impose a specific sentence that is consistent with the

purposes and principles of the 1989 Sentencing Reform Act. See Tenn. Code Ann. § 40-35-302(b)

(1997). Although the Sentencing Reform Act typically treats misdemeanants and felons the same,

misdemeanants are not given the presumption of a minimum sentence. See State v. Seaton, 914

S.W.2d 129, 133 (Tenn. Crim. App. 1995). A separate sentencing hearing is not required in

misdemeanor sentencing, but the trial court must “allow the parties a reasonable opportunity to be

heard on the question of the length of any sentence and the manner in which the sentence is to be

served.” Tenn. Code Ann. § 40-35-302(a) (1997). A misdemeanor sentence, unlike a felony

sentence, has no sentence range. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

The trial court has great flexibility and discretion in fashioning a misdemeanor sentence.

Unlike the felony sentencing statute, which requires the trial court to place its findings on the record,

the misdemeanor sentencing statute “merely requires a trial judge to consider enhancement and

mitigating factors when calculating the percentage of a misdemeanor sentence to be served in

confinement.” State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). When a defendant challenges

a misdemeanor sentence, this court conducts a de novo review with a presumption that the trial

court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (1997).

Even if eligible, a defendant is not automatically entitled to probation as a matter of law. See

Tenn. Code Ann. § 40-35-303(b) (1997). The burden is upon the defendant to show that he is a

suitable candidate for probation. Id.; State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997);

State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the

defendant “must demonstrate that probation will ‘subserve the ends of justice and the best interest

of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.

1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)), overruled on other

grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). There is no bright line rule for

determining when a defendant should be granted probation. Bingham, 910 S.W.2d at 456. Every

sentencing decision necessarily requires a case-by-case analysis. Id. Factors to be considered

include the circumstances surrounding the offense, the defendant’s criminal record, the defendant’s

social history and present condition, the need for deterrence, the best interest of the defendant and

the public, and the defendant’s credibility. Goode, 956 S.W.2d at 527.

The record demonstrates that the trial court considered each of the statutory enhancement and

mitigating factors in sentencing the defendant. The trial court applied enhancement factors (1) and

(8) based on the defendant’s extensive criminal record and his previous history of probation

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violations. See Tenn. Code Ann. § 40-35-114(1), (8) (1997).1 As for mitigating factors, the trial

court noted factor (1), the defendant’s criminal conduct neither caused nor threatened serious bodily

injury, was “true for every thief” and, thus, gave it little, if any, weight. The court found the

defendant’s status as a high school graduate a positive factor but, again, apparently assigned it little

or no weight. The court also considered a number of nonstatutory mitigating factors, including

whether the defendant had expressed remorse for his crimes, whether he had an excellent work

history, whether he had voluntarily confessed his guilt, and whether he had made any efforts at

rehabilitating himself. However, based on the record, the trial court found that none of these

mitigating factors applied.

In finding the defendant unsuitable for probation, the trial court noted, inter alia, his many

violations of probation in Virginia, use of four different names, untruthfulness to the court, poor

social history, and violations of the conditions of his release on bond. After reviewing the

defendant’s record, the trial court concluded:

So, I find that you have a criminal history demonstrating a failure of

past efforts at rehabilitation. I find that you’re untruthful, that your

potential for rehabilitation is almost zero and none. That probation

officer has worked with you in Virginia way beyond what I would

hope any of our people would. You know, I would have signed a

warrant the first time out of this Court because we demand

truthfulness, and your chances of making it on probation are, it just

won’t do, or any other form of alternative sentencing because even in

the Brown Annex you wouldn’t make it.

The record fully supports the trial court’s sentencing determinations. The defendant’s

presentence report reflects a lengthy criminal history beginning at age 19 and culminating at age 36

with his attempted robbery of the CVS Pharmacy when he was out on bond for the instant offense.

In addition, the defendant was on probation with the Commonwealth of Virginia at the time he

committed the offense. According to the report of his supervising probation officer, Sally Johnson,

on multiple occasions the defendant failed to inform her of his changes in address, provided false

information regarding his residences, and failed to stay in contact with her. Johnson stated that when

she ultimately tracked him down, the defendant “admitted he was living in various motels in the Lee

Highway area of Washington County/Bristol, Virginia.” She stated that the defendant’s case had

been an “extremely difficult” one to monitor, and she held the opinion that he was not a suitable

candidate for probation supervision.

The record further reflects that the defendant has used multiple names in the past, including

“Travis Ray Johnson,” which the defendant’s mother reported was the defendant’s true name; “Terry

Crusenberry,” the name the defendant informed the trial court was his real name; “Travis Taylor

1

Under the current statute, these would be enhan cement facto rs (2) and (9 ). See Tenn. Code Ann. § 40-35-114

(Sup p. 20 02).

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McCrosky”; and “Travis Raymond Bronson.” Additionally, the defendant told the trial court that

his mother would welcome him into her home and that he had never admitted to his Virginia

probation officer that he had been living in various motels in the area, in spite of the information

contained in his presentence report to the contrary. The defendant testified at the sentencing hearing

that he realized what drugs had done to his life and had been “thinking” about entering a

rehabilitation program upon his release from jail. However, his information about the program was

unspecific and his plans vague. Moreover, his mother reported to the officer who prepared the

presentence report that she believed the defendant would probably quickly turn to drugs upon his

release from jail. She also reported that the defendant, to her knowledge, was not married to “Kristie

Crusenberry” and that it was not clear to her whether Crusenberry’s three children were, in fact, the

defendant’s children. In sum, the defendant’s social history, record of prior convictions under

multiple names, and testimony at the sentencing hearing evidence a complete lack of candor and

truthfulness on his part.

A trial court may base a sentence of confinement upon any one of several considerations,

including a finding that “[m]easures less restrictive than confinement have frequently or recently

have been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-103(1)(C) (1997).

Here, the trial court observed that measures less restrictive than confinement had been unsuccessfully

applied to the defendant many times in the past, and thus sentenced the defendant to serve his eleven-

month-twenty-nine-day sentence in confinement. Based on the record in this case, we find no error

in the sentence imposed by the trial court.

CONCLUSION

After reviewing the record, we conclude that the trial court did not err in sentencing the

defendant to serve his eleven-month-twenty-nine-day sentence in confinement. Accordingly, we

affirm the judgment of the trial court.

___________________________________

ALAN E. GLENN, JUDGE

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