State of Tennessee v. William Butler Bolling

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 26, 2001 Session

STATE OF TENNESSEE v. WILLIAM BUTLER BOLLING

Appeal from the Criminal Court for Sullivan County

No. S40,835 Phyllis H. Miller, Judge

No. E2000-03166-CCA-R3-CD

William Butler Bolling appeals from the Sullivan County Criminal Court’s determination that he

serve his plea bargained, effective two-year sentence for gambling crimes in the Department of

Correction. He claims he should have received some form of alternative sentencing, preferably

probation, for his felony conviction. Because Bolling has failed to demonstrate the error of the trial

court’s determination, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

ROBERT W. WEDEMEYER , JJ., joined.

Richard Alan Spivey, Kingsport, Tennessee, for the Appellant, William Butler Bolling.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General;

H. Greeley Welles, Jr., District Attorney General; Robert Montgomery, Assistant District Attorney

General, for the Appellant, State of Tennessee.

OPINION

The evidence regarding the offenses themselves is sparse. According to the

presentence report, the defendant ran a gambling operation out of a legitimate business that he also

operated. An undercover officer placed bets through the defendant and an employee in September,

1997. The officer also observed other individuals placing bets with the defendant. The officer

played “punch boards,” and he received “betting sheets” for wagers he placed. Eventually, the

defendant was charged with gambling-related offenses.

The seventy-six year old defendant was ultimately convicted upon his guilty pleas

of aggravated gambling promotion and possession of gambling paraphernalia. See Tenn. Code Ann.

§ 39-17-504 (1997) (aggravated gambling promotion); § 39-17-505 (1997) (possession of gambling

paraphernalia). For these offenses, which are a Class E felony and Class B misdemeanor,

respectively, he agreed to an effective two-year sentence with the manner of service to be determined

by the trial court.

At the sentencing hearing, Bolling offered a letter from a plastic surgeon who was

treating him for cancer. Although the defense did not present testimonial evidence, the court briefly

questioned the defendant under oath. The defendant testified that although he did not know what

his income was for the current year, he had reported his gambling proceeds to the Internal Revenue

Service. He claimed that he had been self-employed since he was discharged from the military in

1943, but he claimed that his gambling enterprise was “not as big as you think it is.”

A presentence report was received at the sentencing hearing. It reflects that the

defendant has several prior gambling-related convictions from 1986, 1982, 1975, 1974, as well as

a larceny conviction from 1944 and various motor vehicle offense convictions. The defendant is the

self-employed owner of Dub’s Confectionary and four rental properties. The defendant reported to

the preparer of the presentence report that he had gambled to support himself. He has been married

for 50 years and has two severely mentally retarded children, who are both institutionalized.

The trial court found that although the defendant was presumed a favorable candidate

for alternative sentencing, see Tenn. Code Ann. § 40-35-102(6) (1997), that presumption was

overcome by the evidence (1) that the defendant “possesses a criminal history demonstrating a clear

disregard for the laws and morals of society,” (2) that the defendant has not been rehabilitated by

past sentences, which have both involved and not involved confinement, and (3) “that confinement

is particularly suited to provide an effective deterrence to others likely to commit similar offenses

and . . . to [the defendant himself].” Therefore, the trial court imposed an incarcerative sentence for

the felony conviction. It ordered concurrent service of six months probation for the misdemeanor.

It is the determination that the felony sentence should be served in incarceration that

the defendant appeals.

When there is a challenge to the length, range, or manner of service of a sentence, it

is the duty of this court to conduct a de novo review of the record with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This

presumption 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. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). "The burden of showing that the sentence is improper is upon the

appellant." Id. In the event the record fails to demonstrate the required consideration by the trial

court, review of the sentence is purely de novo. Id. If appellate review reflects the trial court

properly considered all relevant factors and its findings of fact are adequately supported by the

record, this court must affirm the sentence, "even if we would have preferred a different result."

State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In making its sentencing determination, the trial court, at the "conclusion of the

sentencing hearing" and after determining the range of sentence and the specific sentence, then

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determines the propriety of sentencing alternatives by considering (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 enhancement and mitigating

factors; (6) any statements the defendant wishes to make in the defendant's behalf about sentencing;

and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210(a), (b) (1997);

Tenn. Code Ann. § 40-35-103(5)(1990); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.

1993).

A defendant who "is an especially mitigated or standard offender convicted of a Class

C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the

absence of evidence to the contrary." Tenn. Code Ann. § 40-35-102(6) (1997). Our sentencing law

also provides that "convicted felons committing the most severe offenses, possessing criminal

histories evincing a clear disregard for the laws and morals of society, and evincing failure of past

efforts at rehabilitation, shall be given first priority regarding sentences involving incarceration."

Tenn. Code Ann. § 40-35-102(5) (1997). Thus, a defendant who meets the above criteria is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption.

However, the Act does not provide that all offenders who meet the criteria are entitled to such relief;

rather, it requires that sentencing issues be determined by the facts and circumstances presented in

each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

The defendant’s appellate argument focuses on the trial court’s application, non-

application and weighing of certain enhancement and mitigating factors. The state counters that the

enhancement and mitigating factors are irrelevant to a sentencing proceeding that is entirely a

manner-of-service determination, and in any event, the trial court ultimately and correctly concluded

that the presumption of favorable candidacy for probation or other alternative sentencing was

rebutted.

We disagree with the state’s premise that the enhancement and mitigating factors are

irrelevant when the sole issue before the court is the manner of service of a felony sentence. To be

sure, consideration of the evidence and information offered on the enhancement and mitigating

factors is relevant to determination of “the appropriate combination of sentencing alternatives that

shall be imposed on the defendant . . . .” Tenn. Code Ann. § 40-35-210(b)(5); see Donald Higbee

v. State, No. 03C01-9808-CR-00286, slip op. at 7 (Tenn. Crim. App., Knoxville, Dec. 3, 1999),

perm. app. denied (Tenn. 2000). We recognize, as argued by the state, that this court ruled to the

contrary in State v. Jesse Cleo Minor, No. M1998-00424-CCA-R3-CD, slip op. at 6 (Tenn. Crim.

App., Nashville, Dec. 15, 1999). However, that case is of dubious authority because it relies upon

State v. Jim Green, No. 02C01-9312-CC-00270 (Tenn. Crim. App., Jackson, Dec. 14, 1994), a case

in which two of the three panelists signed the opinion “concurring in results only.” We therefore

conclude that the enhancement and mitigating factors are relevant to the trial court’s manner-of-

service determination.

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The record in this case reflects that the trial court considered all relevant facts,

circumstances and considerations as required by the Sentencing Reform Act. Moreover, the record

reveals no error in the court’s factual determinations relevant to the enhancement and mitigating

factors. Thus, we turn to the merits of the trial court’s sentencing determination.

In that regard, the defendant, a Range I offender, enjoyed the presumption of

favorable candidacy for alternative sentencing for his Class E felony. See Tenn. Code Ann. §

40-35-102(6) (1997). Moreover, he was eligible for probation. See Tenn. Code Ann. § 40-35-303(a)

(1997). The record in this case, however, demonstrates that the presumption of favorable candidacy

was soundly rebutted by the defendant's history of repeated lawless behavior, particularly as regards

prior gambling offenses. See Tenn. Code Ann. § 40-35-103(1)(A) (1997) (confinement may be

based on necessity to "protect society by restraining a defendant who has a long history of criminal

conduct”); Tenn. Code Ann. § 40-35-103(1)(C) (1997) (confinement may be based upon the fact

that "measures less restrictive than confinement have frequently or recently been applied

unsuccessfully to the defendant”). Given the defendant’s history of gambling offenses, a sentence

less than confinement would depreciate the seriousness of the offense. See Tenn. Code Ann. § 40-

35-103(1)(B) (1997). Moreover, given the evidence of the defendant’s repeated prior involvement

in illegal gambling, the trial court was warranted in rejecting all forms of alternative sentencing short

of total confinement. For these reasons, we affirm the trial court’s judgment for two years of

incarceration for the felony offense.

Upon notice of plain error, however, we find fault in the trial court’s judgment for

the misdemeanor offense. The judgment form reflects that the defendant was convicted of a Class

A misdemeanor. However, the crime charged in the indictment is a Class B misdemeanor. No

greater, Class A version of the charged crime exists. See generally Tenn. Code Ann. § 39-17-505(c)

(1997) (“Possession of a gambling device or record is a Class B misdemeanor.”). Therefore, we

must remand this case to the trial court for correction of the judgment form.

The trial court’s sentencing determination is affirmed. The case is remanded for

correction of the judgment form in case number S40,835.

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JAMES CURWOOD WITT, JR., JUDGE

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