The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1997 SESSION
April 15, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE )
) NO. 03C01-9704-CR-00147
Appellee, )
) WASHINGTON COUNTY
v. )
) HON. LYNN W. BROWN
GRANT LEE PROVENCHER )
) (Sentencing)
Appellant )
)
For the Appellant For the Appellee
Laura Rule Hendricks John Knox Walkup
Eldridge, Irvine & Hendricks Attorney General & Reporter
606 W. Main Street, Ste. 350
P.O. Box 84 Peter M. Coughlan
Knoxville, TN. 37901-0084 Assistant Attorney General
425 Fifth Avenue North
Jeff C. Kelly 2nd Floor, Cordell Hull Building
Assistant Public Defender Nashville, TN. 37243-0493
1st Judicial District
P.O. Box 996 David E. Crockett
Johnson City, TN. 37605 District Attorney General
Kent W. Garland
Assistant District Attorney General
1st Judicial District
Unicoi County Courthouse
Erwin, TN. 37650
OPINION FILED:_______________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Grant Lee Provencher, appeals as of right the sentence he
received following a guilty plea in the Washington County Criminal Court. The
appellant pled guilty to reckless homicide, a Class D felony, and was sentenced as a
Range I standard offender to three (3) years in the W ashington County jail. He
contends on appeal that the trial court erred in denying his request for alternative
sentencing.
After a review of the record, we affirm the judgment of the trial court.
The facts of this case demonstrate once again how the mixing of alcohol with
dangerous instrumentalities can result in senseless tragedy. On February 6, 1996, the
appellant was drinking alcoholic beverages and socializing with friends in his Johnson
City apartment. Among those participating in the party were the victim, Jason
McWatters, and his girlfriend, Summer Phillips. During that evening, the appellant
entered his bedroom and brought out a .357 caliber hand gun. He removed the
magazine clip from the pistol and allowed Ms. Phillips to handle it. She pointed it and
proceeded to click the hammer as if to fire the weapon. When she returned the
weapon to the appellant, he aimed it at Ms. Phillips and began cocking and
depressing the hammer. During that time, the gun made a clicking noise but never
fired.
The victim told appellant not to point the gun at Ms. Phillips; however, the
appellant assured him that the gun was unloaded. Thereafter, the appellant aimed the
gun directly at the victim’s head and depressed the hammer. The gun fired a bullet
into the victim’s forehead, killing him instantly. Although the appellant tried to help the
victim, he panicked and fled from the apartment upon finding that the victim had no
pulse. Before leaving, the appellant stated, “you guys don’t know me, you guys don’t
know what happened, I’ve got to get out of here!”
The appellant was indicted by the Washington County grand jury for the
offense of reckless homicide. He entered a plea agreement whereby he pleaded
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guilty to reckless homicide and received a three (3) year sentence as a Range I
standard offender. The trial court conducted a sentencing hearing and ordered the
appellant to serve his entire sentence in the Washington County jail. The appellant
argues on appeal that the trial court erred in denying his request for alternative
sentencing. He contends that he is a suitable candidate for probation or some other
sentencing alternative to incarceration.
This issue is without merit.
When a defendant challenges the length, range, or manner of his 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 facts 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 his own behalf concerning 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, and all relevant factors and circumstances before
ordering the appellant to serve three (3) years in the Washington County jail. We,
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therefore, review appellant’s sentence with a presumption of correctness.
The trial court acknowledged that the appellant was a presumable candidate for
alternative sentencing under Tennessee Code Annotated section 40-35-102.1 The
appellant pled guilty to reckless homicide, a Class D felony, and he was sentenced as
a Range I standard offender. However, the trial court found that the statutory
presumption was rebutted by evidence to the contrary. We agree.
Guidance as to what constitutes “evidence to the contrary” is contained in
Tennessee Code Annotated section 40-35-103(1). That section provides that a
sentence of confinement should be based upon whether confinement is necessary to
protect society or to avoid depreciating the seriousness of the offense, whether
“confinement is particularly suited to provide an effective deterrence to others likely to
commit similar offenses, whether “measures less restrictive than confinement have
frequently been applied unsuccessfully to the defendant,” and whether the defendant
has a potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-103(1),
(5) (Supp. 1996).
The trial court examined the above factors in determining that the appellant
should serve his three (3) year sentence in confinement. From the appellant’s
testimony at the sentencing hearing, the trial court found that the appellant was so
intoxicated on the night of the shooting that his memory had been disturbed.
Furthermore, the appellant admitted that since the time of the offense, he had
repeatedly binged on drugs and alcohol to avoid dealing with the consequences of his
actions. The trial court determined that although there was no evidence that
1
The statutory presumption for alternative sentencing is contained in Tennessee Code
Annota ted sec tion 40-35 -102(5) , (6) (Sup p. 1996) . Section 4 0-35-10 2(5) pro vides tha t:
In recognition that state prison capacities and the funds to build and maintain them a re
limited, 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 sentencing
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 presu med to be a fav orable ca ndidate fo r alternative s entenc ing options in the abs ence o f evidenc e to
the c ontra ry.
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confinement would provide deterrence, there was proof that the violent offense
coupled with appellant’s intoxication presented a major public concern.
Moreover, the trial court found that the offense involved multiple enhancement
factors including the appellant’s criminal history, more than one victim, the use of a
firearm, and no hesitation about committing a crime when the risk to human life was
high. See Tenn. Code Ann. § 40-35-114 (1),(3),(9), & (10) (Supp. 1996). 2 From
appellant’s presentence report, the trial court found that the appellant had two prior
assault convictions for which he served probationary sentences. While serving
probation for the second assault conviction, the appellant was held in contempt of
court for failing to pay restitution.
The appellant’s social history and present condition also influenced the trial
court’s decision. The trial court found that the appellant was a high school dropout
with a history of underage drinking and drug abuse. Although the appellant had
received a G.E.D. and planned to attend college, he had demonstrated an inability to
maintain employment and to improve his life due to persistent substance abuse
problems.3
Moreover, there was a question as to whether the appellant was truly
remorseful for the reckless killing of the victim. As the trial court noted, the appellant
testified that he felt sorrow and regret for his actions on the night of the shooting;
however, he did not express those feelings until he was recalled to testify by his trial
counsel.4 Furthermore, the appellant admitted that he had relied upon alcohol and
drugs to escape from the consequences of his actions. Based upon that evidence
2
The trial court found that Ms. Phillips was also a victim because the appellant had pointed the
gun at he r bef ore h e sho t the vic tim.
3
The appellant testified that he had been fired from one job and had quit another without notice
due to substance abuse and other personal problems. However, at the time of the sentencing hearing,
he was working at a Red Lobste r restaura nt.
4
When the appellant first testified at the sentencing hearing, he did not mention any remorse or
sorrow for the loss of life or the suffering of the victim’s family. It was not until after the testimony of the
victim’s m other an d father th at the app ellant testified c oncern ing his rem orse.
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and the appellant’s probation record for two previous violent offenses, the trial court
determined that appellant’s potential for rehabilitation was “not good.”
From our de novo review, we find that the trial court was justified in denying an
alternative sentence. While not relying solely upon the violent nature of the present
offense, we conclude that the offense combined with appellant’s history of substance
abuse, intoxication, and previous violent offenses, rebutted the presumption that he
was a favorable candidate for alternative sentencing. The appellant has served two
prior probationary sentences, yet he has continued to mix alcohol and drugs with
dangerous criminal activities.
The evidence fails to demonstrate how a probationary sentence in this case
would “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), per.
app. denied (Tenn. 1990). We, therefore, conclude that the appellant has failed to
carry his burden of showing that his sentence was improper.
The judgment of the trial court is affirmed.
___________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
_______________________
JOHN H. PEAY, JUDGE
_______________________
DAVID G. HAYES, JUDGE
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