IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1995 SESSION FILED September 20, 1995
Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9503-CR-00056 Appellee, ) ) Shelby County V. ) ) Hon. L. T. Lafferty, Judge ) PHILLIP D. BELL, ) (Unlawful Possession of a Controlled ) Substance with Intent to Sell or Deliver) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Howard L. Wagerman Charles W. Burson Howard B. Manis Attorney General & Reporter Attorneys at Law The Wagerman Law Firm Cyril V. Fraser Suite 2003, 100 North Main Counsel for the State Memphis, TN 38103 Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
John W. Pierotti District Attorney General
James A. Wax, Jr. Asst. Dist. Attorney General 201 Poplar, 3rd Floor Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED AS MODIFIED
PAUL G. SUMMERS, Judge OPINION
Phillip D. Bell, the defendant, pled guilty to possession of cocaine, less
than .5 grams, with intent to sell. The Criminal Court at Shelby County
sentenced him to serve 180 days in the Shelby County Correctional Center
followed by five (5) years probation. On appeal, the defendant contends that the
trial court erred in failing to suspend his entire sentence or, alternatively, in failing
to allow service of the sentence on weekends.
We modify and affirm the judgment of the trial court.
The Department of Correction investigation report indicates that members
of the Organized Crime Unit executed a search warrant at a location where the
defendant was believed to be storing and selling cocaine. When the police
entered the apartment, the defendant entered the bathroom and attempted to
flush a plastic bag down the toilet. The bag contained 2.96 grams of cocaine.
The defendant pled guilty and agreed to a sentence of four years in the Shelby
County Correctional Center with suspension of his sentence to be determined
after a hearing.
The trial court denied the defendant straight probation, stating:
Now the reason you're not going to get straight probation is because exactly what you did. You endeavored to sell cocaine. You were a known cocaine seller. You had a business going in operation. So, you're not going to walk through those doors and be put on probation because you say you have changed the patterns of your ways. Good.
And what struck me in this report was when they tried to find out where you lived, they contact your aunt, she says, 'No,' you don't live there, you just come by once in a while. That is a little odd.
When a defendant appeals a sentencing issue, this Court shall conduct a
de novo review on the record with the presumption that the determinations made
-2- by the trial court are correct. T.C.A. § 40-35-401(d) (1990); State v. Byrd, 861
S.W.2d 377, 379 (Tenn. Crim. App. 1993). This presumption of correctness is
conditioned upon an affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant is presumed
to be a favorable candidate for alternative sentencing in the absence of evidence
to the contrary. See T.C.A. § 39-17-417(C)(2) (Supp. 1994); T.C.A. § 40-35-
102(5), (6) (1990 & Supp. 1994). With all due respect, the record fails to
affirmatively show that the trial court began his analysis by considering that the
defendant is presumptively subject to alternative sentencing. It appears that the
court imposed incarceration and then explained why a sentence less restrictive
than incarceration would not be appropriate. Accordingly, we review the record
de novo.
The defendant is presumed to be a favorable candidate for alternative
sentencing, absent evidence to the contrary. Evidence to the contrary includes
(1) evidence of a need to protect society by restraining a defendant who has a
long history of criminal conduct, (2) a need to avoid depreciating the seriousness
of the offense, (3) a need to deter others likely to commit similar offenses, and
(4) evidence that measures less restrictive than confinement have frequently or
recently been applied to the defendant. T.C.A. § 40-35-103(1)(A),(B)&(C)
(1990). Other factors applicable to the defendant's petition for suspension of
his sentence include the defendant's past and present mental and physical
condition, State v. Grear, 568 S.W.2d 285, 286-87 (Tenn. 1978), and the
defendant's truthfulness at trial or a sentencing hearing. State v. Jenkins, 733
S.W.2d 528, 535 (Tenn. Crim. App. 1987). The defendant's potential or lack of
potential for rehabilitation should also be considered. T.C.A. § 40-35-103(5).
In denying probation, the trial court emphasized the nature of the offense.
Before a trial court can deny probation based solely on the nature of the offense,
the act must be especially violent, offensive, or otherwise of an excessive or
-3- exaggerated degree; and this factor must outweigh all other factors favoring
probation. State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981). The defendant
testified that he was not a "big-time" drug seller but that he had dealt with
approximately $400.00 worth of cocaine.1 He admitted that the officers
recovered a gun, two walkie-talkies and a beeper watch at the location where the
search warrant was executed. The defendant testified that he had the walkie-
talkies and the beeper to watch out for the police. The defendant's offense,
however, was nonviolent; there was no injury or death involved. The defendant
is a youthful offender, twenty-one years old. He admits to having arrests as a
juvenile for expired tags, violation of curfew and patronizing prostitution. Since
his arrest, he has found employment and enrolled in a program to obtain his
GED. He says that he is remorseful for his crimes. He testified that he does not
take drugs.
In denying probation, the trial court relied upon the defendant's lack of
candor in addition to the nature of the offense. With the exception of the court's
finding that the defendant told investigators that he lived with his aunt when he
apparently did not, the defendant was candid with the court. He admitted his
involvement with cocaine and the degree of his involvement.
This is a close case. Our review leads us to believe that the defendant
was a known drug dealer and the police caught him. He received a good
negotiated plea, but his prior adult record is unblemished. We do believe that
180 days of shock confinement will assist him in rehabilitation. He ought to have
the opportunity to hold a job and progress toward a GED, however. Therefore,
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1995 SESSION FILED September 20, 1995
Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9503-CR-00056 Appellee, ) ) Shelby County V. ) ) Hon. L. T. Lafferty, Judge ) PHILLIP D. BELL, ) (Unlawful Possession of a Controlled ) Substance with Intent to Sell or Deliver) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Howard L. Wagerman Charles W. Burson Howard B. Manis Attorney General & Reporter Attorneys at Law The Wagerman Law Firm Cyril V. Fraser Suite 2003, 100 North Main Counsel for the State Memphis, TN 38103 Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
John W. Pierotti District Attorney General
James A. Wax, Jr. Asst. Dist. Attorney General 201 Poplar, 3rd Floor Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED AS MODIFIED
PAUL G. SUMMERS, Judge OPINION
Phillip D. Bell, the defendant, pled guilty to possession of cocaine, less
than .5 grams, with intent to sell. The Criminal Court at Shelby County
sentenced him to serve 180 days in the Shelby County Correctional Center
followed by five (5) years probation. On appeal, the defendant contends that the
trial court erred in failing to suspend his entire sentence or, alternatively, in failing
to allow service of the sentence on weekends.
We modify and affirm the judgment of the trial court.
The Department of Correction investigation report indicates that members
of the Organized Crime Unit executed a search warrant at a location where the
defendant was believed to be storing and selling cocaine. When the police
entered the apartment, the defendant entered the bathroom and attempted to
flush a plastic bag down the toilet. The bag contained 2.96 grams of cocaine.
The defendant pled guilty and agreed to a sentence of four years in the Shelby
County Correctional Center with suspension of his sentence to be determined
after a hearing.
The trial court denied the defendant straight probation, stating:
Now the reason you're not going to get straight probation is because exactly what you did. You endeavored to sell cocaine. You were a known cocaine seller. You had a business going in operation. So, you're not going to walk through those doors and be put on probation because you say you have changed the patterns of your ways. Good.
And what struck me in this report was when they tried to find out where you lived, they contact your aunt, she says, 'No,' you don't live there, you just come by once in a while. That is a little odd.
When a defendant appeals a sentencing issue, this Court shall conduct a
de novo review on the record with the presumption that the determinations made
-2- by the trial court are correct. T.C.A. § 40-35-401(d) (1990); State v. Byrd, 861
S.W.2d 377, 379 (Tenn. Crim. App. 1993). This presumption of correctness is
conditioned upon an affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant is presumed
to be a favorable candidate for alternative sentencing in the absence of evidence
to the contrary. See T.C.A. § 39-17-417(C)(2) (Supp. 1994); T.C.A. § 40-35-
102(5), (6) (1990 & Supp. 1994). With all due respect, the record fails to
affirmatively show that the trial court began his analysis by considering that the
defendant is presumptively subject to alternative sentencing. It appears that the
court imposed incarceration and then explained why a sentence less restrictive
than incarceration would not be appropriate. Accordingly, we review the record
de novo.
The defendant is presumed to be a favorable candidate for alternative
sentencing, absent evidence to the contrary. Evidence to the contrary includes
(1) evidence of a need to protect society by restraining a defendant who has a
long history of criminal conduct, (2) a need to avoid depreciating the seriousness
of the offense, (3) a need to deter others likely to commit similar offenses, and
(4) evidence that measures less restrictive than confinement have frequently or
recently been applied to the defendant. T.C.A. § 40-35-103(1)(A),(B)&(C)
(1990). Other factors applicable to the defendant's petition for suspension of
his sentence include the defendant's past and present mental and physical
condition, State v. Grear, 568 S.W.2d 285, 286-87 (Tenn. 1978), and the
defendant's truthfulness at trial or a sentencing hearing. State v. Jenkins, 733
S.W.2d 528, 535 (Tenn. Crim. App. 1987). The defendant's potential or lack of
potential for rehabilitation should also be considered. T.C.A. § 40-35-103(5).
In denying probation, the trial court emphasized the nature of the offense.
Before a trial court can deny probation based solely on the nature of the offense,
the act must be especially violent, offensive, or otherwise of an excessive or
-3- exaggerated degree; and this factor must outweigh all other factors favoring
probation. State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981). The defendant
testified that he was not a "big-time" drug seller but that he had dealt with
approximately $400.00 worth of cocaine.1 He admitted that the officers
recovered a gun, two walkie-talkies and a beeper watch at the location where the
search warrant was executed. The defendant testified that he had the walkie-
talkies and the beeper to watch out for the police. The defendant's offense,
however, was nonviolent; there was no injury or death involved. The defendant
is a youthful offender, twenty-one years old. He admits to having arrests as a
juvenile for expired tags, violation of curfew and patronizing prostitution. Since
his arrest, he has found employment and enrolled in a program to obtain his
GED. He says that he is remorseful for his crimes. He testified that he does not
take drugs.
In denying probation, the trial court relied upon the defendant's lack of
candor in addition to the nature of the offense. With the exception of the court's
finding that the defendant told investigators that he lived with his aunt when he
apparently did not, the defendant was candid with the court. He admitted his
involvement with cocaine and the degree of his involvement.
This is a close case. Our review leads us to believe that the defendant
was a known drug dealer and the police caught him. He received a good
negotiated plea, but his prior adult record is unblemished. We do believe that
180 days of shock confinement will assist him in rehabilitation. He ought to have
the opportunity to hold a job and progress toward a GED, however. Therefore,
Although indicted for felonious sale of cocaine possession greater than five gram s, a class B felony, the defendant was allowed to plead to a class C felony in a plea bargain.
-4- we affirm the trial court's sentence but modify it to the extent that the 180 days
incarceration will be served in periodic confinement as designated by the trial
judge to allow the defendant to work and go to GED training. The 180 days will
be served based upon a 24 hour day as the trial judge ordered.
______________________________ PAUL G. SUMMERS, JUDGE
-5- CONCUR:
_____________________________________ WILLIAM M. BARKER, JUDGE
_____________________________________ MARY BETH LEIBOWITZ, SPECIAL JUDGE
-6-