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State v. Powers

Court of Criminal Appeals of Tennessee, Nashville

July 24, 2017


          Assigned on Briefs May 10, 2017

         Appeal from the Circuit Court for Montgomery County No. CC-15-CR-968 William R. Goodman III, Judge

         The Defendant, Claude David Powers, pleaded guilty in the Montgomery County Circuit Court to aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2014) (amended 2015). The trial court sentenced the Defendant as a Range I, standard offender to four years, with one year to serve in confinement and the remainder to serve on probation. On appeal, the Defendant contends that (1) his four-year sentence is excessive and (2) the trial court erred in denying his request for full probation. Because the trial court failed to place the appropriate findings of fact and determinations on the record as required by our sentencing laws, we remand the case to the trial court for a new sentencing hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded

          Joshua W. Etson, Clarksville, Tennessee, for the appellant, Claude David Powers.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Chris Dotson, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.



         In September 2015, the Defendant was indicted for attempt to commit first degree murder and aggravated assault. Pursuant to the plea agreement, the Defendant pleaded guilty to aggravated assault, the State dismissed the attempted murder charge, and the trial court would determine the length and manner of service of the sentence. The transcript of the guilty plea hearing is not included in the appellate record.

         At the sentencing hearing, the presentence report was received as an exhibit. The report showed previous convictions for three counts of public intoxication, two counts of driving under the influence of an intoxicant, two counts of vandalism, assault, domestic assault, reckless driving, driving with a suspended license, and resisting arrest. The report also showed two previous probation violations.

         The presentence report showed that the Defendant obtained his GED, that he reported only one previous employer, and that he intended to work for a construction company if he received probation. The Defendant had previously completed drug and alcohol awareness classes. At the time of the presentence investigation, the Defendant was undergoing Suboxone treatment for opiate addiction. He reported good mental health and excellent physical health. He reported first drinking alcohol at age fifteen and drinking one beer weekly at the time of the presentence investigation. The report noted that the investigator believed the Defendant "fabricated" his alcohol-related responses because of the Defendant's history of alcohol-related criminal conduct. The Defendant reported first abusing prescription opiates at age twenty-seven.

         The Defendant submitted a written statement to the presentence investigator explaining the night of the incident. In the statement, the Defendant explained that earlier that evening, he had been at an acquaintance's home, that he left, and that he walked home. He said that after being home for about thirty minutes to one hour, he began walking to a nearby convenience store to purchase cigarettes and beer. He said that during the walk to the store, he was approached by the victim and another man the Defendant identified as Tim. The Defendant explained that the men walked up to me and seemed like everything was normal. Then

immediately they demanded that I give them whatever I had whether it was drugs or money. So I said "Hell no." That's when [the victim] pulled a knife on me. When this happened the other man named Tim ran off to the side of the building so I took out my pocket knife in the intent to [persuade] him to stop what he was doing and back off. But he did not[. He] took his weapon and tried to thrust it into my chest area. So what happened next was my first instinct which was stop him to get him off of me. And I did so to keep him from coming at me. I believe that I pricked him 2 times in the abdomen area. When this happened he dropped to the ground and lay[] there. So I was really scared and shaking so I ran to my house. I tried to tell my wife what happened but I was hysterical. She was trying to help me breathe and calm down. Before I could even get to a phone to explain to police what had happened. They were already at my front door knocking, looking for me. Then I was escorted downtown. I never wanted any harm to come of this man. I wish that I could change the outcome of this offense, and maybe handled the situation in a better manner.

         Tony Bush, the victim, testified that on the evening of April 25, 2015, he and Tim went to his visit their friend, Tammy. The victim said that he, Tim, Tammy, and Tammy's daughter were at Tammy's home and that the Defendant arrived late that night. The victim said that everyone was drinking alcohol and was having fun. He said that the Defendant asked if the victim could acquire drugs for the Defendant and that the victim made arrangements to obtain cocaine. The victim said that the Defendant gave the victim money, ...

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