The Tennessee Court of Criminal Appeals on Split Confinement

By Stevie Phillips

Harvey Brian Cochran was convicted of reckless homicide, a Class D felony.  On appeal, he argued that the trial court erred by failing to follow the sentencing guidelines before denying him an alternative sentence.  An alternative sentence is any sentence that does not involve complete confinement. 

The CCA determined that Cochran was a favorable candidate for alternative sentencing because he was convicted of a Class D felony.  Under T.C.A. § 40-35-101(6)(A), the burden therefore fell to the State to present “evidence to the contrary.”  In determining whether such evidence exists, the trial court should consider the factors set out in T.C.A. § 40-35-103(1)(A)(C):  whether confinement is necessary to protect society, avoid depreciating the seriousness of the offense, or deter others.  The trial court should also consider whether less restrictive sentences have been applied unsuccessfully to the defendant in the past. 

Here, the trial court explicitly found that these factors did not apply, and the CCA saw nothing in the record on appeal to refute this finding.  Nonetheless, the trial court denied alternative sentencing on the basis of lack of remorse or truthfulness as it related to Cochran’s potential for rehabilitation under T.C.A. § 40-35-103(5).  As the CCA explained, a defendant’s potential for rehabilitation should only be considered when determining the type and length of the alternative sentence once the court has ruled that complete confinement is improper. 

As a result, Cochran was still a candidate for alternative sentencing.  The CCA reversed and ordered a sentence of split confinement – ninety days in jail and the remainder on supervised probation. 

The full opinion can be found here.