State v. Davis

Decision Date10 March 1997
Citation940 S.W.2d 558
PartiesSTATE of Tennessee, Appellee, v. Shannon Renee DAVIS, Appellant.
CourtTennessee Supreme Court

R. Russell Mattocks, Morristown, for Appellant.

Charles W. Burson, Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, Nashville, C. Berkeley Bell, Jr., District Attorney General, John Douglas Godbee, Assistant District Attorney, Rogersville, for Appellee.


ANDERSON, Justice.

We granted the appeal in this case to answer a question of first impression: whether the trial court had the statutory authority to order the defendant to pay restitution in addition to ordering a sentence of incarceration for the offense of vandalism, and to determine whether the trial court erred in denying the defendant probation.

After the jury convicted the defendant of vandalism, the trial court denied probation, sentenced the defendant to serve two years and one day, and ordered the payment of restitution to the victim of $625. The trial court found that the statutory presumption in favor of probation for this first offense was overcome by the evidence that confinement was necessary to avoid depreciating the seriousness of the offense and to provide an effective deterrent to others likely to commit similar offenses.

On appeal, the Court of Criminal Appeals held that the trial court correctly denied probation, but that the trial court lacked the statutory authority to impose restitution with a sentence of incarceration. We agree and affirm for the reasons discussed below.


In August of 1992, contract negotiations failed between Assured Casting, a manufacturing facility in Rogersville, Tennessee, and its labor union. The union voted to strike and established a picket line. Some workers, including the victim Regina Kleeper, decided to cross the picket line and continue working. On August 15, 1992, when Regina Kleeper crossed the picket line, the defendant Shannon Davis and Ann Lawson told her that "they would get even with [her] one way or the other." 1

On September 3, 1992, at approximately 3:30 a.m., David Ogle, Regina Kleeper's neighbor, was on his front porch preparing to go to work. He saw three individuals "messing around" with an automobile belonging to Regina Kleeper and her husband, Ronald. Ogle saw the individuals throw something on the car and he heard what sounded like keys hitting the concrete. A street light gave Ogle a clear view of two of the individuals at the scene--Shannon Davis and Ann Lawson. The third person was never identified.

Later that morning Ronald Kleeper noticed a "substance" on their car. When he attempted to wash it off, he discovered that the substance had eaten the paint down to the base metal. Later in the day, he returned home and discovered that their daughter's bedroom window had been broken and that a quantity of roofing nails had been scattered over their driveway. At trial, Kleeper estimated that the damage to the car and the bedroom window amounted to $1,200.

The defendant and Lawson testified that they were working the picket line at the time of the offenses. Their story was supported by several fellow strikers.

At trial, the jury convicted Shannon Davis of vandalism, 2 a class D felony and recommended that she pay a fine of $625 and also pay restitution to the victim of $625. At the sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender to two years and one day in the Department of Correction, 3 approved the amount of the fine, and ordered the payment of $625 in restitution. The trial court denied probation.

On appeal, the Court of Criminal Appeals affirmed the trial court's denial of probation but found that the order of restitution tied to a sentence of incarceration was plain error. We granted this appeal to determine whether probation should have been denied and whether there is statutory authority to require restitution with a sentence of incarceration.


The task of an appellate court when reviewing the length, range, or manner of service of a sentence, including the grant or denial of probation, is to conduct a de novo review with a presumption that the lower court was correct. Tenn.Code Ann. § 40-35-401(d)(1990). 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).

We analyze the trial court's action on probation by first reviewing the factors the trial court must consider in imposing a sentence. A trial 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 circumstances of the offense, any mitigating or enhancing factors, statements made by the defendant, and the defendant's potential for rehabilitation. Moreover, the trial court must consider the sentencing purposes and considerations set forth in the Sentencing Act. Tenn.Code Ann. § 40-35-102, -103, & -210 (1990).

Although probation "must be automatically considered as a sentencing option for eligible defendants, the defendant is not automatically entitled to probation as a matter of law." Tenn.Code Ann. § 40-35-303(b) (1990) (Sentencing Commission Comments). Instead, the court must begin its sentencing determination by reviewing the purposes of sentencing set forth in Tenn.Code Ann. § 40-35-102, which include:

(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; and

(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 presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary.

Tenn.Code Ann. § 40-35-102(5) & (6)(emphasis added). As we discussed in State v. Ashby, supra, "evidence to the contrary" may be found in applying the considerations that govern sentences involving confinement, which are set forth in Tenn.Code Ann. § 40-35-103(1):

(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;

(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; or

(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.

See State v. Ashby, 823 S.W.2d at 169.

Here, the trial court reviewed the purposes and considerations set forth in these statutory provisions. The defendant, as a class D felon, was entitled to the presumption of alternative sentencing pursuant to Tenn.Code Ann. § 40-35-102(6). In denying probation, however, the court emphasized that confinement was necessary "to avoid depreciating the seriousness of the offense" and necessary to provide an "effective deterrent to others likely to commit similar offenses." See Tenn.Code Ann. § 40-35-103(1)(B).

Whether a sentence will deter others likely to commit similar criminal offenses is a proper sentencing consideration and a proper basis upon which to deny probation or alternative sentencing. The Sentencing Act clearly states that "[p]unishment shall be imposed to prevent crime and promote respect for the law by ... [p]roviding a general deterrent to those likely to violate the criminal laws of this state." Tenn.Code Ann. § 40-35-102(3)(A). 4

Because there is a degree of deterrence uniformly present in every case, however, the significance of this factor "varies widely with the class of offense and the facts of each case." State v. Michael, 629 S.W.2d 13, 14-15 (Tenn.1982). Thus, a "finding of deterrence cannot be conclusory only but must be supported by proof." State v. Ashby, 823 S.W.2d at 170.

The evidence in this record supports the trial court's reliance on the deterrence factor. The trial judge made his specific findings of deterrence in the context of a labor dispute in the community which had escalated into criminal acts. Specifically, the defendant threatened Regina Kleeper in a confrontation as she crossed the picket line and then later committed acts of vandalism against her in the early morning hours. Moreover, the record indicates that at least one individual participating in the offenses went unpunished. Accordingly, there is evidence in the record to support the trial court's finding that denying probation was necessary to deter others from committing similar offenses. Tenn.Code Ann. § 40-35-103(1)(B).

Moreover, while the acts of vandalism, by definition, did not directly involve violence to another person, the record supports the trial court's finding that denying probation avoided depreciating the seriousness of the offense. Tenn.Code Ann. § 40-35-103(1)(B). In denying probation to the defendant, the trial court considered the appropriate factors, applied the purposes and principles of sentencing, and complied with our holding in State v. Ashby, supra. As a result, the trial court did not abuse its discretion in denying probation.


The issue of whether the trial court had the statutory authority to order restitution along with a sentence of incarceration is a question of first impression in this State. 5 Since it is a question of law, our review is de novo with no presumption of correctness. Beare Co. v. Tenn. Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn.1993).

Encouraging defendants to make restitution to victims where...

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