State of Tennessee v. Michael Anthony Pike

• Court: Court of Appeals of Tennessee
• Decided: December 4, 2001
• Docket: 02C01-9509-CC-00261
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST 1996 SESSION FILED December 4, 2001

Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) NO. 02C01-9509-CC-00261 ) Appellee ) HENRY COUNTY ) V. ) HON. JULIAN P. GUINN, JUDGE ) MICHAEL ANTHONY PIKE ) (Sentencing) ) Appellant ) )

FOR THE APPELLANT FOR THE APPELLEE

Barton F. Robison Charles W. Burson 104 West Washington Street Attorney General and Reporter Paris, Tennessee 38242 450 James Robertson Parkway Nashville, Tennessee 37243-0493

Michelle L. Lehman Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243-0493

Robert Radford District Attorney General

Vicki Snyder Assistant District Attorney General P.O. Box 686 Huntingdon, Tennessee 38344

OPINION FILED:______

AFFIRMED

William M. Barker, Judge Opinion

The Appellant, Michael Anthony Pike, appeals as of right his sentences for

simple possession of marijuana, possession of marijuana with intent to sell, and

possession of drug paraphernalia. He argues on appeal that the trial judge erred by

not placing him in community corrections or, in the alternative, by not giving him the

minimum statutory sentences. After a careful review of the record on appeal, we

affirm the trial court’s judgment.

On November 14, 1994, the Appellant was arrested after attempting to make a

marijuana purchase from undercover police officers. After the arrest, the police

officers obtained a search warrant for the Appellant’s hotel room and found another

quantity of marijuana and rolling papers. On May 22, 1995, the Appellant pled guilty

to all charges. After a sentencing hearing, the trial judge sentenced him to two years

confinement for possession of marijuana with intent to sell, eleven months and twenty-

nine days for both simple possession of marijuana and possession of drug

paraphernalia, all sentences to be served concurrently.

When an Appellant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)

(1990). The burden of showing that the sentence is improper is upon the appealing

party. Id. Sentencing Commission Comments. This presumption, however, 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 Appellant first contends that the trial judge should have ordered alternative

sentencing by placing him in community corrections. This issue is without merit.

The Appellant argues that he should have received alternative sentencing

because as a Class E felon he is presumed a favorable candidate for alternative

sentencing. See Tenn. Code Ann. 40-35-103(b) (1990). He further contends that

alternative sentencing is appropriate because he has testified in front of a federal

2 grand jury trying to crack down on a drug ring and because he is the sole provider for

his children.

The trial judge, however, opined that placing the Appellant in community

corrections would depreciate the seriousness of his offenses. See Tenn. Code Ann.

§ 40-35-103 (1)(B) (1990). Regarding the grand jury testimony, the trial judge found

that the Appellant failed to show that any indictments had been handed down or any

arrests made as a result of his testimony. However, the trial judge stated that if the

Appellant could show that the testimony resulted in any indictments or convictions, the

trial judge would consider suspending the Appellant’s sentences. Moreover, the trial

judge found that an order of alternative sentencing would not be in the best interest of

justice, the public, or the Appellant himself and that the Appellant should have thought

about his children before dealing in drugs. Accordingly, the trial judge declined to find

the Appellant a good candidate for community corrections or any other type alternative

sentencing. We agree.

The Appellant’s second contention is that the trial judge erred when he did not

give the Appellant the minimum sentence for possession of marijuana with intent to

sell. This issue is also without merit.

When determining the length of a sentence, the trial judge shall start at the

minimum sentence, increase it considering appropriate enhancement factors, and

decrease it considering appropriate mitigating factors. Tenn. Code Ann. § 40-35-210

(Supp. 1995).

At the sentencing hearing, the trial judge found that the Appellant has a

substantial previous history of both criminal convictions and criminal behavior. See

Tenn. Code Ann. § 40-35-114(1) (Supp.1995). The record supports the trial judge’s

findings in that regard.

The Appellant then offered two mitigating factors. First, that his “conduct

neither caused nor threatened serious bodily injury” and second, that he has been

assisting the police in uncovering other criminal activity. Tenn. Code Ann. § 40-35-

3 113(1), (9) (1990). The trial judge did not give either mitigating factor much weight.

See State v. Mann, No. 02C01-9504-CC-00101 (Tenn. Crim. App., Jackson, Oct. 18,

1995), permission to appeal denied (April 1, 1996) (stating that the serious bodily

injury mitigating factor has little weight when the sale of drugs to the public is

involved); State v. Keel, 882 S.W.2d 410 (Tenn. Crim. App. 1994) (suggesting that

when an appellant tries to assist the police in uncovering criminal activity and the

assistance bears no fruit, the requirements of mitigating factor number nine are not

fulfilled). Considering both enhancing and mitigating factors, the trial judge ruled that

the enhancement factor far outweighed the mitigating factors and enhanced the

Appellant’s sentence from one year to two years.

We find no abuse of the trial court’s discretion. Accordingly, we affirm the

Appellant’s sentences.

__________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

__________________________ GARY R. WADE, JUDGE

__________________________ JERRY L. SMITH, JUDGE