State v. Ashby

• Decision Date: 23 December 1991
• Citation: 823 S.W.2d 166
• Parties: STATE of Tennessee, Plaintiff-Appellee, v. Charles Jack ASHBY, Defendant-Appellant. 823 S.W.2d 166
• Court: Tennessee Supreme Court

Page 166

823 S.W.2d 166

STATE of Tennessee, Plaintiff-Appellee, v. Charles Jack ASHBY, Defendant-Appellant.

823 S.W.2d 166

Supreme Court of Tennessee at Jackson.

Dec. 23, 1991.

Amy L. Tarkington, Asst. Atty. Gen., Charles W. Burson, Atty. Gen. and Reporter, Nashville, for plaintiff-appellee.

Donald E. Parish, Ivey, Parish & Johns, Huntingdon, for defendant-appellant.

OPINION

REID, Chief Justice.

This case presents an appeal from the judgment of the Court of Criminal Appeals affirming the trial court's refusal to grant appellant's request for sentencing pursuant to the Tennessee Community Corrections Act of 1985, T.C.A. Secs. 40-36-101 to -306. Appellant contends that the standard of review applied by the Court of Criminal Appeals violates the Tennessee and federal constitutional prohibition of ex post facto laws and that the courts below erred in denying his request for alternative sentencing. For the reasons that follow, the conviction is affirmed. The sentence, however, is vacated, and the case is remanded to the trial court for sentencing pursuant to the Community Corrections Act.

Appellant, a retired farmer in his early 60s, has a serious heart condition and is outfitted with a pacemaker. He takes several medications, including valium. Pharmacy records admitted into evidence show that during a six months period in 1988 the appellant purchased 720 valium pills at two drug stores on prescriptions written by two physicians. The record shows that appellant had been selling to others over a period of years drugs obtained on his prescriptions. Appellant's only prior conviction, receiving and concealing stolen property, occurred more than 20 years earlier, when he was 37 years old.

During the fall of 1988, a police informant purchased from appellant valium, a Schedule IV controlled substance, and Flexeril, a legend drug. As a result, appellant was convicted of six counts of selling valium, one count of selling Flexeril, and one count of possession of 750 valium with intent to sell. On November 15, 1989, appellant was sentenced as a Range I standard offender to two terms of three years in the Department of Corrections and fined $750 on each of seven counts and 30 days in jail and fined $50 on another count.

The Court of Criminal Appeals, in affirming the sentences, applied a presumption of correctness standard to the trial court's sentencing determination under the Tennessee Criminal Sentencing Reform Act of 1989, T.C.A. Secs. 40-35-101 to -504, rejecting appellant's insistence that applying the presumption under the 1989 act would constitute an ex post facto law, forbidden by Article I, Sec. 10 of the United States Constitution. The court held that the change in the rules of appellate review of sentencing falls into none of the forbidden categories found in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798), and adopted in Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343, 349 (1947). The appellate court affirmed the trial court's finding that conduct like appellant's must be deterred and held that "(d)eterrence alone is a proper basis for denial of the largesse of a sentence less restrictive than confinement," citing T.C.A. Sec. 40-35-103(1)(B) ("(1) Sentences involving confinement should be based on the following considerations: ... (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").

I.

Appellant's first claim on appeal is that since the offenses were committed in 1988, application of the appellate standard of review provided in the 1989 Act for sentences imposed after November 1, 1989, a presumption of correctness of the trial court's decision, violates the ex post facto provision of Article 1, Sec. 10 of the United States Constitution. The Court of Criminal Appeals' decision on this issue is affirmed. There is no authority for the position that legislative changes in the standard of review by appellate courts are ex post facto laws. The 1989 Act does not increase the punishment beyond that provided when the offense was created, nor does it meet any other category of ex post facto law as found in Davis, 207 S.W.2d at 343.

II.

Appellant next asserts that the trial court erred in refusing to allow his requested sentence of 30 days in the county jail with the remainder to be served in Community Corrections. He insists that since he is a nonviolent offender with special medical needs and the sentence imposed is less than eight years, he is presumed under T.C.A. Sec. 40-35-102(6) to qualify for rehabilitative alternative sentencing options.

Since the offenses were committed in 1988, the sentences were imposed after November 1, 1989, and the sentences violate no constitutional prohibition, the sentencing and this review are controlled by the Tennessee Criminal Sentencing Reform Act of 1989. T.C.A. Sec. 40-35-117(b).

De novo review with a presumption of correctness, mandated by T.C.A. Sec. 40-35-402(d), requires application of the sentencing principles stated in T.C.A. Sec. 40-35-103 to the facts and circumstances in the record deemed relevant by T.C.A. Sec. 40-35-210 and the provisions of the Community Corrections Act. The Court must consider the evidence received at the trial and sentencing hearing, the presentence report, the principles of sentencing, argument of counsel, the nature and characteristics of the offense, any mitigating and/or enhancing factors, statements made by the offender, and the potential for rehabilitation. T.C.A. Secs. 40-35-103, -210; State v. Moss, 727 S.W.2d 229 (Tenn.1986); State v. Taylor, 744 S.W.2d 919 (Tenn.Crim.App.1987). As this Court stated in State v. Moss:

This provision makes it clear to us that a case-by-case approach to sentencing underlies this Act as a fundamental policy. An individual criminal is sentenced based on the nature of the offense and the totality of the circumstances in which it was committed, including the defendant's background. Cf. T.C.A. Secs. 40-35-102(1); 40-35-102(2). Any case-by-case approach will embody discretion, since all of the appropriate factors and circumstances must be weighed and considered as a whole for the disposition of each case.

727 S.W.2d at 235. The Act, in order to accomplish its "foremost purpose," which is to "promote justice," provides that the sentence imposed must be the least severe necessary to achieve the punishment justly deserved, to assure fair and consistent treatment of all defendants, to prevent crime, and to promote respect for the law. It further provides that a defendant who receives a sentence of eight years or less and who is not among those for whom incarceration is first priority, as described in T.C.A. Sec. 40-35-102(5), is presumed in the absence of evidence to the contrary to possess capabilities for rehabilitative alternative sentencing options. T.C.A. Sec. 40-35-102 (Supp.1989). These rehabilitative alternative sentencing options "are specifically encouraged." T.C.A. Sec. 40-35-102(6) (Supp.1989).

Subsection (5) of T.C.A. Sec. 40-35-102 recognizes, for the first time in Tennessee, that "scarce prison resources should enter into the sentencing evaluation for those convicted of violating the law." Sentencing Commission Comments to T.C.A. Sec. 40-35-102. In fact, the General Assembly convened in 1985 for an extraordinary session, during which the Tennessee Community Corrections Act of 1985 was enacted, for the purpose of addressing the pressing issue of prison overcrowding. State v. Taylor, 744 S.W.2d at 920 (citing Tenn. Acts (1985 1st E.S.) Ch. 5, Sec. 31 and Ch. 3, Sec. 18). Subsection (5) reads,

(5) In recognition that state prison capacities and the funds to build and maintain them are 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.

This Court has stated, " 'That probation is less costly than incarceration has been amply demonstrated. See Standards Relating to Probation promulgated by the Advisory Committee on Sentencing and Review of the American Bar Association, at 29-30 (Approved Draft, 1970), estimating the cost of probation at one-tenth that of incarceration.' " Moten v. State, 559 S.W.2d 770, 772 (Tenn.1977) (citing Mattino v. State, 539 S.W.2d 824, 830 (Tenn.Crim.App.1976)). The imposition of sentences must accede to the reality that the state does not have available sufficient prison facilities to accommodate all persons who, according to traditional concepts of punishment, would be incarcerated.

Also, subsection (5) establishes a rebuttable presumption in favor of rehabilitation upon early convictions. See also T.C.A. Sec. 40-35-303(b) (probation is to be automatically considered as a sentencing alternative for eligible defendants); State v. Fletcher, 805 S.W.2d 785, 787 (Tenn.Crim.App.1991). As stated in Stiller v. State, 516 S.W.2d 617 (Tenn.1974),

The entire theory of probation is that it is in the public interest that those who violate society's rules of conduct should, in proper cases, be given an opportunity to rehabilitate themselves and to be restored to useful and productive citizenship. More and more our society is coming to realize that "warehousing" criminals on an indiscriminate basis is financially, socially and morally unacceptable.

Id. at 620.

Perhaps of even greater significance, at least for the purposes of the case before the Court, is the presumption established in subsection (6). When the stated minimal requirements are met, a defendant is presumed "in the absence of evidence to the contrary to possess capabilities for rehabilitative alternative sentencing options." Guidance as to what will constitute "evidence to the contrary" under subsection (6) is found in ...