State v. ZeoliaState v. Zeolia
- Reporters:
- ,
- Before:
- Hayes
OPINION
HAYES, Judge.
The appellant, Tony Zeolia, pled guilty in the Criminal Court of Washington County to four counts of arson, a class C felony.
See
After reviewing the record, we affirm the judgment of the trial court.
I. Factual Background
On October 18, 1994, the trial court conducted a sentencing hearing for the appellant, Gordon Silvers, and Steven Bennett. 1 Testimony at the hearing revealed that on October 3 and 4, 1993, the appellant, Gordon Silvers, Steven Bennett, James Bowman, and Amber Cundiff 2 participated in events leading to the burning of four barns 3 in Washington County. Jerimi Miller, an acquaintance of the various participants, testified that, on the evening of October 3, 1993, he and Gordon Silvers were conversing in the parking lot outside Miller’s home. The appellant, Amber Cundiff, and Steven Bennett arrived in Bennett’s car. The appellant began to boast that he had burned down various bams. He suggested that they drive about the countryside and bum down more bams. Gordon Silvers rejected this suggestion, but indicated that he would be willing to simply drive around. At this point, Miller returned home. Later that night, the appellant, Bennett, and Cundiff came back to Miller’s house. Cundiff informed Miller that more bams had been destroyed. The next day, Silvers visited Miller and drove Miller and his brother to a house that had apparently been burned down. Silvers told Miller that the appellant had ignited the house the previous evening.
Gordon Silvers, who was eighteen at the time of the offenses, also testified at the sentencing hearing. He confirmed that, on the evening of October 3, 1993, and in the early morning hours of October 4, 1993, he drove about Washington County with the appellant, Bennett, and Cundiff. He drove his car, and the appellant, accompanied by Bennett and Cundiff, drove Bennett’s ear. He further testified that, on three occasions, the appellant stopped nearby a bam and exited his automobile. Silvers admitted that, although all three bams were destroyed by fire, he only witnessed the appellant “light” one bam. He denied starting the fires himself.
Steven Bennett, who was twenty at the time of the offenses, testified that, on the evening of October 4, 1993, the appellant, accompanied by Bennett, Cundiff, and James Bowman, was again driving about Washington County. At one point, Bowman asked the appellant to drop him off at a bam. Bowman stated that he intended to bum the
The appellant, who was eighteen at the time of the offenses, testified, “I had nothing to do with catching the barns on fire. I was just driving the car.” He indicated that Gordon Silvers was the principal participant in the burnings. He explained that he did not call the police at any time during the commission of the offenses, because he “was too scared.” He admitted that he initially lied to the police, telling the police that he was not present when the bams were ignited.
The evidence in the record relating to the extent of the damages caused by the appellant and his companions is comprised of the testimony of one of the victims, John Glaze, and a letter from another victim, William Young, which was included in the presen-tence report. John Glaze’s bam suffered the least damage, because Glaze apprehended Bowman before Bowman could fully ignite the bam. Glaze testified that he suffered damages amounting to $117.60. However, he characterized the impact of all the barn burnings on Washington County as “devastating.” William Young indicated that his damages amount to approximately $90,000. He has no insurance. Additionally, Young stated in his letter that this amount reflects the cost of building a single level structure. The original bam had two levels.
With respect to restitution, the appellant stated that, at the time of the sentencing hearing, he had obtained a job at O’Charley’s Restaurant. Defense counsel introduced a letter confirming his employment. The appellant also receives social security disability benefits due to a mental disability. His wife was employed at Shoney’s. However, his wife suffers from syncope, or seizures. Because she has no medical insurance, the appellant and his wife must pay the medical bills resulting from her illness. Nevertheless, the appellant indicated that he is willing to make restitution. At the time of the hearing, he was paying twenty dollars each month toward court costs. The appellant’s wife testified that she and her husband would be able to pay at least fifty dollars each month toward restitution. The appellant’s mother testified that, although she is willing to provide emotional and moral support to her son, she is unable to contribute to the appellant’s restitution payments.
The appellant’s mother also stated that the appellant has been receiving social security disability benefits for some time. She explained, “[I]t’s not a severe case of retardation, but he has been classified as mildly retarded, which made him eligible to draw the SSI benefits.... He can’t comprehend and do what a normal child of his age, you know, would actually be doing.” The appellant’s grandmother also described the appellant’s mental difficulties: ‘Well, he’s very slow. He’s had a lot of problems in school. And he — he can’t remember things.” The presentence report indicates that the appellant completed high school.
Finally, the presentence report reveals that the appellant has no history of criminal convictions. However, as a juvenile, the appellant was adjudicated unruly on three separate occasions, twice pursuant to petitions filed by his mother and once pursuant to a petition filed by his probation officer. The appellant was placed on probation twice and finally committed to the “I & D Center, Holston Home” for a thirty to forty-five day evaluation.
II. Review of the Sentence
The appellant contends that the trial court should have granted him probation or a sentence pursuant to the Community Corrections Act, both alternative sentences.
In reviewing a trial court’s denial of an alternative sentence, we must first determine whether the appellant is entitled to the statutory presumption that he is a favorable candidate for alternative sentencing.
State v. Bingham,
910 S.W.2d 448, 453 (Tenn.Crim.App.),
perm, to appeal denied,
(Tenn.1995) (citing
State v. Bonestel,
871 S.W.2d 163, 167 (Tenn.Crim.App.1993)). The trial court cor rectly noted that the appellant is entitled to the statutory presumption of alternative sentencing under
However, this presumption may be rebutted by “evidence to the contrary.”
(1) Sentences involving confinement should be based on the following considerations:
(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.
Bingham,
910 S.W.2d at 454 (citing
Ashby,
823 S.W.2d at 169). A court may also apply the mitigating and enhancing factors set forth in
Initially, we note that the trial court improperly considered deterrence in sentencing the appellant.
Nevertheless, we agree with the trial court’s determination that confinement is necessary to avoid depreciating the seriousness of the offense.
In order to deny an alternative sentence based on the seriousness of the offense, “the circumstances of the offense as committed must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,” and the nature of the offense must outweigh all factors favoring a sentence other than confinement.
Bingham, 910 S.W.2d at 454 (citing State v. Hartley, 818 S.W.2d 370, 374-375 (Tenn.Crim.App.1991)). First, the trial court noted the multiplicity of counts in this case. While we have declined to find a history of criminal conduct on the basis of multiple counts occurring very close in time, State v. Brown, No. 01C01-9108-CC-00240, 1993 WL 17479 (Tenn.Crim.App. at Nashville), perm, to appeal denied, (Tenn.1993), 5 we have also noted that “a court is not required to ignore that conduct as it relates to the evaluation of other [sentencing] factors,” State v. Hicks, 868 S.W.2d 729, 732 (Tenn.Crim.App.1993). Indeed, failure to consider multiplicity of counts would be “simply irrational and offensive to the underlying principles of sentencing.” Id. We conclude that the appellant’s participation in the burning of four bams within one forty-eight hour period is directly relevant to the seriousness of the offense and weighs in favor of confinement.
Second, the extent of the victims’ financial losses in this case reflects the seriousness of the offense.
Third, the trial court found that the appellant was a leader in the commission of this offense,
Additionally, this appellant’s juvenile record is relevant, since the appellant was only eighteen at the time of the arsons.
The record also supports the trial court’s conclusion that the appellant was not truthful at the sentencing hearing and failed to accept responsibility for his crimes. This court has observed that the appellant’s credibility and willingness to accept responsibility for his crime are circumstances germane to his rehabilitation potential.
State v. Dowdy,
894 S.W.2d 301, 306 (Tenn.Crim.App.1994).
See also
Finally, it is true that a general purpose of the Sentencing Act is to encourage restitution to victims when appropriate.
Accordingly, the judgment of the trial court is affirmed.
PEAY and TIPTON, JJ., concur.
Notes
.Silvers pled guilty to three counts of arson and received an effective sentence of four years incarceration with the Tennessee Department of Correction. Bennett pled guilty to four counts of accessory after the fact to arson. He received an effective sentence of two years incarceration with the Tennessee Department of Correction. Neither Silvers nor Bennett appealed their sentences.
. James Bowman and Amber Cundiff were juveniles at the time of the offenses, and their cases were adjudicated in separate proceedings.
. The indictment charged the appellant with the burning of four bams. However, testimony at the sentencing hearing indicated that the appellant destroyed or damaged three bams and an abandoned house.
. The owner of the bam, John Glaze, also testified at the hearing. He stated that he and his son were guarding the bam that evening because he “had a premination (sic) that something might happen.” Moreover, he had, earlier that week, noticed signs of attempted arson in his bam. He had also heard about the bams that were burned the previous evening.
. Contra State v. Cummings, 868 S.W.2d 661, 667 (Tenn.Crim.App.1992).