A trial court cannot deny probation simply because of the elements of an offense when the offense is probation eligible

This month, the Tennessee Supreme Court determined that, for probation eligible offenses, a trial court can deny probation solely on the basis of the offense itself only after finding that “the circumstances of the offense as particularly committed in the case under consideration . . . demonstrate that the defendant committed the offense in some manner more egregious than is contemplated simply by the elements of the offense.”

In the case, the defendant pled guilty to one count of vehicular homicide, a Class B felony.  The defendant agreed to an eight-year sentence with the manner of service to be determined by the trial court after a hearing.  At the hearing, the trial court ordered that the defendant serve his sentence in TDOC, applying enhancement factor (10), which provides: “The defendant had no hesitation about committing a crime when the risk to human life was high.”  T.C.A. § 40-35-114.  In making its finding, the trial court stated,

I don’t know how the accident occurred other than the fact of what’s in the indictment and what he agreed to in the stipulation. . . . [T]his situation in and of itself, he should not have been operating a vehicle that day.  He pled guilty to that. . . . He made a decision to take excess amount of his pain killers and operate a vehicle that day and killed another human being. . . . That being the case, the Court is going to remand the defendant to Tennessee Department of Correction [] for eight years.

The defendant then appealed to the Tennessee Court of Criminal Appeals and argued “that the proof did not support the trial court’s decision to deny probation solely to avoid depreciating the seriousness of the offense because the circumstances of his offense were not ‘especially violent, horrifying, shocking, reprehensible, offensive, or otherwise an excessive or exaggerated degree.'”  The court of criminal appeals agreed with the defendant, reversed the trial court’s ruling, and imposed a sentence of probation.

After the decision, the State applied for and was granted permission to appeal to the Tennessee Supreme Court.  The Court noted that it has long held:

if probation is to be denied because of the nature of the offense, it would have to be clear that the criminal act, as committed, would be described as especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree; and it would have to be clear that, therefore, the nature of the offense, as committed, outweighed all other factors . . . which might be favorable to a grant of probation

Applying the above rule to this case, the defendant was entitled to be considered for probation in spite of the fact that he committed vehicular homicide by intoxication.  However, the trial court made no findings regarding the particular circumstances surrounding the offense.  While the trial court’s ruling indicated that it may have been concerned about the defendant’s likelihood about re-offending, the court failed to explain on the record any determinations it made regarding the defendant’s amenability to correction nor why the defendant had failed to prove his suitability for probation.  Further, the court failed to set forth any findings or conclusions based upon the presentence report, which stated that the defendant “is considered low risk in terms of the likelihood of re-offending.”

Regarding enhancement factor ten – the defendant had no hesitation about committing a crime when the risk to human life was high – the Court stated that, for over twenty years, “this enhancement factor is applicable only when there is proof that the defendant’s conduct in committing the offense created a high risk to the life of someone other than the victim.”  See e.g.State v. Maines, No. E2003-02397-CCA-R3-CD, 2004 WL 833424, at *3 (Tenn. Crim. App. Apr. 16, 2004) (determining that the trial court erred by applying enhancement factor (10) because “there was no evidence that other motorists were in the vicinity or placed at risk by the [defendant’s] operation of a vehicle while under the influence”).  Given there was no proof in the record that the defendant put anyone at risk other than the victim, the trial court erred by applying enhancement factor (10).

Based on the foregoing, the Tennessee Supreme Court agreed with the Tennessee Court of Criminal Appeals that the trial court erred by not undertaking the proper analysis before imposing a sentence.  However, the Court reversed the court of criminal appeal’s order that the defendant be placed on full probation, reasoning that since the burden of proving suitability for full probation was on the defendant and since the record was insufficient for meaningful appellate review, it was not appropriate for an appellate court to order the defendant be placed on probation.  Instead, the Court remanded the case to the trial court for a new sentencing hearing.

State v. Trent, No. E2015-00753-SC-R11-CD (Tenn. 2017)

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