State of Tennessee v. George C. Peery, III

Citation: Not availableDocket: E2002-01682-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; June 13, 2003; Tennessee; State Appellate Court

Original Court Document: View Document

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George C. Peery, III appeals his sentence following a guilty plea to aggravated burglary (Class C felony) and theft under $500 (Class A misdemeanor). He seeks full probation and contests a one-year confinement period followed by two years of probation in a community corrections program for the felony. The trial court's decision to deny full probation is upheld, but the one-year confinement is modified to 10.8 months to be served in a local jail or workhouse. Additionally, the case is remanded to rectify discrepancies between the transcript and the judgment. The factual background includes a burglary reported by Jeff Peters, where Defendant confessed involvement by driving an accomplice, Keith Bowman, to the scene, witnessing the theft, and expecting a share of the proceeds. Indicted on April 11, 2001, Defendant pled guilty on February 21, 2002, receiving a three-year concurrent sentence for both charges. At the June 28, 2002 sentencing hearing, he presented personal circumstances, including being the sole provider for his family.

Defendant was employed by his father's automobile repair and landscaping business, earning approximately $200 per week. He dropped out of high school in the tenth grade but earned his G.E.D. in 1997 and planned to attend Northeast State Technical Community College once he secured financing. Although he acknowledged past use of alcohol and marijuana, he claimed to have abstained from these substances since 2001. During an interview with the Bristol Police Department, Defendant confessed to his involvement in an offense and agreed to testify against Mr. Bowman, expressing remorse and accepting responsibility.

Defendant faced various charges in Kingsport General Sessions Court, including driving on a suspended license and possession-related charges. Additionally, a pre-sentence report indicated pending charges in Bristol General Sessions Court for theft and drug possession; however, the court could not locate a warrant for these charges. Defendant stated that an assault charge from his juvenile record had been dismissed, although he had been committed to the Department of Children’s Services in 1997 and spent nine months at the Taft Youth Center due to other juvenile offenses, which included serious crimes such as possession of a loaded weapon and grand larceny.

Defendant's father, Mr. George Peery, Jr., confirmed his son's employment and offered to supervise him during any potential probation. Mr. Peery noted that while Defendant had a troubled past, he was showing improvement at the time of the sentencing. The trial court expressed concern over Defendant's numerous juvenile convictions and noted that many would have been felonies if committed as an adult, indicating that previous rehabilitation attempts had been ineffective. Despite these concerns, the court was hesitant to confine Defendant in the Tennessee Department of Correction due to his youthful appearance and partially credited Mr. Peery's testimony regarding his son's recent behavior.

Ultimately, the trial court denied full probation and imposed a one-year split-confinement sentence. Defendant is now appealing this decision, arguing that the trial court erred in not granting full probation, and if split confinement was deemed appropriate, that the period of confinement exceeded the applicable release eligibility date for his felony conviction.

When a defendant contests the length or manner of their sentence, the Court conducts a de novo review, presuming the trial court's determinations are correct unless the record shows otherwise. To uphold this presumption, the trial court must demonstrate that it considered all relevant sentencing principles and facts. The trial court must evaluate various factors, including evidence from trial and sentencing hearings, pre-sentence reports, sentencing principles, the nature of the crime, enhancement and mitigating factors, the defendant's rehabilitation potential, and any statements from the defendant.

If the trial court follows statutory sentencing procedures and adequately supports its findings, the Court cannot modify the sentence, even if it prefers a different outcome. The defendant is responsible for proving that the sentence is improper. As a standard offender convicted of a Class C felony with a sentence less than eight years, the defendant is presumed eligible for alternative sentencing, which could include full probation. Although the trial court offered alternative sentencing, it imposed split confinement: one year in jail followed by supervised probation with community corrections.

The defendant argues for full probation, but eligibility does not guarantee it. The defendant must show that full probation serves both their interests and public safety. The trial court weighs factors such as the circumstances of the offense, the defendant's rehabilitation potential, and the need for deterrence when deciding on probation. Additionally, when assessing the appropriateness of incarceration, the court considers public safety, the seriousness of the offense, and whether previous less restrictive measures have failed.

Sentencing alternatives are determined not by a strict formula but must be appropriate for both the offense and the offender, as outlined in Tenn. Code Ann. 40-35-103(2). Individualized punishment is crucial for alternative sentencing, requiring a case-by-case evaluation that considers the defendant's unique circumstances (State v. Dowdy, 894 S.W.2d 301, 305). The trial court deemed confinement appropriate due to the defendant's extensive juvenile record, which includes multiple convictions for serious offenses such as grand larceny, possession of a loaded weapon, and theft-related crimes. The defendant contends that his sparse adult record should lead to a less severe sentence, suggesting his juvenile history should not be factored into sentencing decisions. However, it is established that a juvenile record is relevant in assessing adult felony sentences (State v. Stockton, 733 S.W.2d 111). The trial court's findings are supported by the defendant's long history of criminal behavior and his failure to comply with prior probationary measures. The defendant's juvenile record showcases a pattern of offenses, including reckless driving and theft, and his engagement in illegal activities during his juvenile years. The trial court also considered enhancement factor (20), noting that certain juvenile offenses would qualify as felonies if committed as an adult, although only one conviction—burglary of an automobile—would qualify under current law. The classification of earlier grand larceny charges would now be considered theft offenses under the law.

The record indicates that the two thefts were categorized as 'grand larcenies' due to the value of property allegedly exceeding $500. However, under prior law, the classification depended on a value greater than $200, complicating the assumption that these were felonies. The potential felony status of the Defendant's convictions for shoplifting and destruction of property also hinges on the value involved, which is not specified in the record. Despite these ambiguities, the trial court's decision for confinement is supported by the Defendant's numerous juvenile convictions, including at least one felony, and ineffective previous probation attempts. The Defendant has not shown entitlement to full probation.

Regarding split confinement, both the Defendant and the State acknowledge that the trial court improperly imposed a confinement period exceeding the Defendant's eligibility date for release. Legal precedent establishes that a defendant's confinement in split confinement cannot surpass this eligibility date. For a Range I standard offender, eligibility for release occurs after serving 30% of the sentence, with Class C felonies having a sentencing range of three to six years. Thus, the Defendant, with a minimum three-year sentence, would be eligible for release after approximately 10.8 months. The case is remanded for an amended judgment reflecting this split confinement arrangement, which includes jail time served concurrently with a misdemeanor sentence and the remainder on probation involving a community corrections program.

Additionally, there is confusion regarding the judgment form, which states the Defendant is sentenced to the Department of Correction for three years, while the trial court indicated split confinement in the Sullivan County Jail. The judgment's 'special conditions' section mentions serving one year in jail but also states participation in the community corrections program. This inconsistency creates ambiguity about whether the Defendant is on probation or in the community corrections program, which are distinct forms of alternative sentencing with different implications for time served and revocation consequences.

A defendant removed from a community corrections program may be resentenced by the trial court to a maximum period of incarceration for their offense, minus any time already served in the program, according to Tenn. Code Ann. 40-36-106(e)(4). In cases where the transcript of evidence conflicts with the judgment, the transcript prevails (State v. Moore, 814 S.W.2d 381, 383). The sentencing hearing transcript indicated the trial court intended for the defendant to receive split confinement, with community corrections as a probation condition. Consequently, the case is remanded to the trial court to amend the judgment to accurately reflect the imposed sentence. The court affirms the appropriateness of split confinement but remands for the entry of an amended judgment specifying a 10.8-month confinement period.