Unless there is a further appeal, it appears a jail sentence imposed against Gary Carter will have to be reduced from 9 months to no more than 7.2 months based on an opinion by the Tennessee Court of Criminal Appeals, Middle Division.
Criminal Court Judge Leon Burns, Jr., in September 2006, sentenced Carter to two years to be served in split confinement with nine months incarceration followed by four years probation, after Carter entered a guilty plea to one count of statutory rape, involving a female, who was seventeen years old and only a few months shy of turning eighteen when the incident allegedly occurred.
Carter has remained free on bond since filing the appeal over a year ago. His name is also listed on the Tennessee Sexual Offender Registry.
In the appeal, the attorney for Carter, Hilton Conger, asked that Carter be granted probation, and not be made to serve nine months in jail.
In a February decision, the Tennessee Court of Criminal Appeals ruled that "the judgement of the trial court is affirmed as to the denial of judicial diversion and full probation." However, the court further ruled that "the trial court erred in the imposition of nine months of incarceration."
According to the court, "The period of time ordered to be served in split confinement cannot exceed the defendant's release eligibility date. The release eligibility date for a Range I standard offender receiving a two year sentence is 7.2 months less certain sentence credits. The record clearly establishes that the defendant was sentenced to nine months, this sentence breached state law and the defendant's liberty would be restrained longer than permitted by law, the issue was not waived, and consideration of the error is necessary to do substantial justice. Accordingly, we reverse the judgment to the extent that the defendant was ordered to serve nine months of incarceration and remand this matter to the trial court to enter an amended judgment setting the defendant's split confinement sentence at 7.2 months. All other portions of the judgment are affirmed."
Conger, in his written argument filed with the higher court, said the trial court erred in denying Carter probation, especially since Carter had no previous criminal record. Conger wrote, " Despite the overwhelming evidence in the record that the appellant (Carter) was a favorable candidate for alternative sentencing, the trial court ambiguously ignored the presumption and failed to articulate in the record its reason or reasons for doing so."
Conger also claimed that the trial court "abused its discretion when it summarily denied the appellant's application for Judicial Diversion without specific consideration, on the record, of the relevant factors required under Tennessee Law. Even if sufficient evidence exists to support the denial of Judicial Diversion, the trial court must state its reasons for its denial of Judicial Diversion. It is clear from the record that the trial court failed to weigh all of the factors necessary prior to making its determination that the appellant's application for Judicial Diversion would be denied."
According to Conger, "requiring the appellant to serve nine months would require a complete disregard for the laws and statutes of the State of Tennessee and would cause the appellant and his family to suffer without his income to support them. The appellant has learned a humiliating, humbling and frightening lesson in life which has taken it's toll on him emotionally and physically. The comments of the Assistant District Attorney and of the trial court, on the record, support the appellant's contention that he will return to the exemplary life that he enjoyed prior to the date in question. The chances that the appellant will engage in future criminal conduct are extremely remote. Additionally, the appellant has expressed sincere remorse for his actions, and has taken full responsibility."