IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED DECEMB ER SESSION, 1997 February 4, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00204 ) Appellee, ) ) BLOUNT COUNTY ) V. ) ) HON . D. KEL LY TH OM AS, JR., JUD Y R. B AILEY, ) JUDGE ) Appe llant. ) (FRAUD )
FOR THE APPELLANT: FOR THE APPELLEE:
LAURA RULE HENDRICKS JOHN KNOX WALKUP Eldridge, Irvine & Hendricks Attorney General & Reporter 606 West Main Street, Ste. 350 P.O. Box 84 MICH AEL J. F AHEY , II Knoxville, TN 37901-0084 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243
RAYMOND MACK GARNER MICHAEL L. FLYNN District Public Defender District Attorney General
SHAW N T. GR AHAM KIRK ANDREWS Assistant Public Defender Assistant District Attorney General 415 High Street 363 Court Street Maryville, TN 37804 Maryville, TN 37804
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Defen dant, Jud y R. Bailey, pled guilty to the offense of obtaining
a controlled substance by fraud in violation of Tennessee Code Annotated section
53-11-402. Pursua nt to the negotiated plea agreement, she received a Range I
three (3) year sentence and $500.00 fine, with the manner of service of senten ce to
be determ ined by th e trial court follo wing a h earing. T he Circu it Court of B lount
Coun ty ordered a sentence of split confinement consisting of ten (10) months in the
Blount Coun ty Jail followed by two (2) ye ars and two (2) m onths o f intens ive
probation. The sentence was ordered to be served concurrently with a sentence for
convictions in Knox Co unty. In her sole issue on appeal, Defendant argues that the
trial court erred by not ord ering a senten ce alternative that doe s not involve
incarcer ation. W e affirm the judgm ent of the tria l court.
Defendant was thirty-three (33) years old at the time of the sentencing
hearing. The offense for which Defendant was convicted occurred on April 18, 1996.
The record reflects that she obtained a controlled substance from a dentist by fraud
and misrep resenta tion by pro viding the d entist with a false name, date of birth, social
security numbe r, address and employment information. The Defendant testified at
the sentencing hearing that she became addicted to pain medication aft er she
received back inju ries in an a utomo bile wreck in 1992.
Defe ndan t’s prior record include d convictions o n Mar ch 5, 1 996 in
Blount County Circuit Court for one count of burglary of a building other than a
habitation, one count of theft less than $500.00, and one count of attempt to possess
-2- controlled substances. Apparen tly, the sentences were run concurrently with each
other an d she w as place d on pro bation.
On August 23, 1996, Defendant was convicted in Knox County Criminal
Court for the offen ses of the ft of property over $1,000.00, and three counts of
obtaining controlled substances by forged prescriptions. She had originally been
placed on pre-trial diversion for these offenses, but it was terminated upon her
commission of other crimes . She was p laced in the Co mmu nity Alternati ves to
Prison Program (CAPP) for the Knox County Convictions. However, due to her
failure of drug screen tests which were positive for morphine and other technical
violations, Defendant was incarcerated in the K noxville Detention Center. There she
was placed in an intensive rehabilitation program with the understanding that she
could be returned to the CAPP program upon successful completion of the
rehabilitation program during the incarceration. Defendant entered into her
negotiated plea agreement in the case sub judice on No vemb er 26, 19 96.
The record shows that when Defendant was arrested for the offense
which is the subject of this app eal, there were approximately forty (40) pills in her
purse, including four (4) different types of controlled substances. She claimed that
she had prescriptions for each of these, but never provided them to the arresting
officer despite his request. She had six (6) unexcused absences from required
meetings while participating in the CAPP program in Knox County. On December
2, 1996, sh e tested p ositive for m orphine following a drug scr een. She claimed that
she had rec ently taken the last pill from a prescription given to her in September
1996 by a dentist. She also failed to pay on her court costs as scheduled.
-3- On December 13, 1996, Defendant was requested to submit to a drug
screen from h er prob ation o fficer on th e prior Blount County convictions. She
provided a sam ple wh ich wa s coo ler than body tempe rature, an d due to its
coloration, the probation officer felt that the cup contained to ilet water. A second
sam ple was imme diately requ ested. The first sample was negative, and the second
samp le was po sitive for mo rphine.
Defendant admitted during her testimony at the sentencing hearing that
she had obtained the first sample from toilet water. She also claimed on December
13 that she had taken pain medication a day or two before from the same
September 1996 prescription which she had earlier claimed was depleted around
December 2, 1996. Defendant also provided a drug screen which was positive for
morphine on January 7, 1997. Defendant admitted during her tes timon y that the pills
which led to the positive drug screens on December 2 and December 13 did not
come from the prescriptio n provide d to her in S eptem ber. Defendant testified that
she obtained the prescription on September 18, 1996 fo r fifteen (15) L orcet pills with
one refill. She took all of the first fifteen (15) on September 18 and obtained a refill
the next day. S he had not taken any pain medication from May 3 through
September 18, 1996. She was not suffering from withdrawal symptoms when she
next obtained the p rescription drug s, and co uld not rea lly provide an answe r as to
why she had suddenly decided to again obtain the controlled substance. Defendant
acknowledged during her testimony that she h ad adm itted herse lf into rehabilitation
at the time of her convic tions in Bloun t Cou nty in March 1996 simply to stay out of
jail and that she had continued taking the pain medication during her outpatient
treatme nt.
-4- In determining the appropriate manner of service of the sentence, the
trial court de clined to o rder a se ntence which invo lved relea se into the comm unity
during the entire sentence on the basis that she had recen tly “chea ted” an d not to ld
the truth while serving a sentence on release status, had continued to use controlled
substance s, and has a lengthy criminal history.
When an accused challenges the length, range, or the manner of
service of a sentence, this court has a duty to conduct a de novo review of the
sentence with a pres umptio n that the d etermin ations m ade by th e trial court a re
correct. T enn. C ode An n. § 40-35-4 01(d). This presumption is "conditioned upon
the affirmative showing in the record that the trial court considered the sentencing
principles and all rele vant facts a nd circum stance s." State v. Ashby, 823 S.W .2d
166, 169 (T enn. 1991 ).
In conducting a de novo review of a sen tence , this court must co nsider:
(a) the evidence, if any, re ceived at the trial and the sentencing hearing; (b) the
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED DECEMB ER SESSION, 1997 February 4, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00204 ) Appellee, ) ) BLOUNT COUNTY ) V. ) ) HON . D. KEL LY TH OM AS, JR., JUD Y R. B AILEY, ) JUDGE ) Appe llant. ) (FRAUD )
FOR THE APPELLANT: FOR THE APPELLEE:
LAURA RULE HENDRICKS JOHN KNOX WALKUP Eldridge, Irvine & Hendricks Attorney General & Reporter 606 West Main Street, Ste. 350 P.O. Box 84 MICH AEL J. F AHEY , II Knoxville, TN 37901-0084 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243
RAYMOND MACK GARNER MICHAEL L. FLYNN District Public Defender District Attorney General
SHAW N T. GR AHAM KIRK ANDREWS Assistant Public Defender Assistant District Attorney General 415 High Street 363 Court Street Maryville, TN 37804 Maryville, TN 37804
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Defen dant, Jud y R. Bailey, pled guilty to the offense of obtaining
a controlled substance by fraud in violation of Tennessee Code Annotated section
53-11-402. Pursua nt to the negotiated plea agreement, she received a Range I
three (3) year sentence and $500.00 fine, with the manner of service of senten ce to
be determ ined by th e trial court follo wing a h earing. T he Circu it Court of B lount
Coun ty ordered a sentence of split confinement consisting of ten (10) months in the
Blount Coun ty Jail followed by two (2) ye ars and two (2) m onths o f intens ive
probation. The sentence was ordered to be served concurrently with a sentence for
convictions in Knox Co unty. In her sole issue on appeal, Defendant argues that the
trial court erred by not ord ering a senten ce alternative that doe s not involve
incarcer ation. W e affirm the judgm ent of the tria l court.
Defendant was thirty-three (33) years old at the time of the sentencing
hearing. The offense for which Defendant was convicted occurred on April 18, 1996.
The record reflects that she obtained a controlled substance from a dentist by fraud
and misrep resenta tion by pro viding the d entist with a false name, date of birth, social
security numbe r, address and employment information. The Defendant testified at
the sentencing hearing that she became addicted to pain medication aft er she
received back inju ries in an a utomo bile wreck in 1992.
Defe ndan t’s prior record include d convictions o n Mar ch 5, 1 996 in
Blount County Circuit Court for one count of burglary of a building other than a
habitation, one count of theft less than $500.00, and one count of attempt to possess
-2- controlled substances. Apparen tly, the sentences were run concurrently with each
other an d she w as place d on pro bation.
On August 23, 1996, Defendant was convicted in Knox County Criminal
Court for the offen ses of the ft of property over $1,000.00, and three counts of
obtaining controlled substances by forged prescriptions. She had originally been
placed on pre-trial diversion for these offenses, but it was terminated upon her
commission of other crimes . She was p laced in the Co mmu nity Alternati ves to
Prison Program (CAPP) for the Knox County Convictions. However, due to her
failure of drug screen tests which were positive for morphine and other technical
violations, Defendant was incarcerated in the K noxville Detention Center. There she
was placed in an intensive rehabilitation program with the understanding that she
could be returned to the CAPP program upon successful completion of the
rehabilitation program during the incarceration. Defendant entered into her
negotiated plea agreement in the case sub judice on No vemb er 26, 19 96.
The record shows that when Defendant was arrested for the offense
which is the subject of this app eal, there were approximately forty (40) pills in her
purse, including four (4) different types of controlled substances. She claimed that
she had prescriptions for each of these, but never provided them to the arresting
officer despite his request. She had six (6) unexcused absences from required
meetings while participating in the CAPP program in Knox County. On December
2, 1996, sh e tested p ositive for m orphine following a drug scr een. She claimed that
she had rec ently taken the last pill from a prescription given to her in September
1996 by a dentist. She also failed to pay on her court costs as scheduled.
-3- On December 13, 1996, Defendant was requested to submit to a drug
screen from h er prob ation o fficer on th e prior Blount County convictions. She
provided a sam ple wh ich wa s coo ler than body tempe rature, an d due to its
coloration, the probation officer felt that the cup contained to ilet water. A second
sam ple was imme diately requ ested. The first sample was negative, and the second
samp le was po sitive for mo rphine.
Defendant admitted during her testimony at the sentencing hearing that
she had obtained the first sample from toilet water. She also claimed on December
13 that she had taken pain medication a day or two before from the same
September 1996 prescription which she had earlier claimed was depleted around
December 2, 1996. Defendant also provided a drug screen which was positive for
morphine on January 7, 1997. Defendant admitted during her tes timon y that the pills
which led to the positive drug screens on December 2 and December 13 did not
come from the prescriptio n provide d to her in S eptem ber. Defendant testified that
she obtained the prescription on September 18, 1996 fo r fifteen (15) L orcet pills with
one refill. She took all of the first fifteen (15) on September 18 and obtained a refill
the next day. S he had not taken any pain medication from May 3 through
September 18, 1996. She was not suffering from withdrawal symptoms when she
next obtained the p rescription drug s, and co uld not rea lly provide an answe r as to
why she had suddenly decided to again obtain the controlled substance. Defendant
acknowledged during her testimony that she h ad adm itted herse lf into rehabilitation
at the time of her convic tions in Bloun t Cou nty in March 1996 simply to stay out of
jail and that she had continued taking the pain medication during her outpatient
treatme nt.
-4- In determining the appropriate manner of service of the sentence, the
trial court de clined to o rder a se ntence which invo lved relea se into the comm unity
during the entire sentence on the basis that she had recen tly “chea ted” an d not to ld
the truth while serving a sentence on release status, had continued to use controlled
substance s, and has a lengthy criminal history.
When an accused challenges the length, range, or the manner of
service of a sentence, this court has a duty to conduct a de novo review of the
sentence with a pres umptio n that the d etermin ations m ade by th e trial court a re
correct. T enn. C ode An n. § 40-35-4 01(d). This presumption is "conditioned upon
the affirmative showing in the record that the trial court considered the sentencing
principles and all rele vant facts a nd circum stance s." State v. Ashby, 823 S.W .2d
166, 169 (T enn. 1991 ).
In conducting a de novo review of a sen tence , this court must co nsider:
(a) the evidence, if any, re ceived at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to sentencing
alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
any statutory mitigating or enhancement factors; (f) any statement that the defendant
made on his own behalf; and (g) the potential or lack of potential for rehabilitation or
treatme nt. Tenn . Code Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735
S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principles set out under the sentencing law, and that
-5- the trial court's findings of fact are adequately supported by the record, then we may
not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v.
Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
At the ou tset, we note th at we h ave de termin ed the trial court’s
judgment should be reviewed de novo with a pres umptio n of corre ctness. A
defendant convicted of a Class C, D, or E felony who is an especially mitigated or
standard offende r is presum ed to be a favorab le candid ate for alternative sentencing
options if the defendant does not fall within the parameters of Tennessee Code
Anno tated sec tion 40-3 5-102(5 ). See Tenn . Code Ann. § 4 0-35-10 2(6).
Allowing the Defendant the benefit of the presu mptio n, we in itially note
that the trial court sentenced her to an a lternative se ntence of split confin emen t.
See Tenn. Code Ann. § 40-35-104(c)(3). There is no presumption that Defendant
is entitled to a specific type of alternative sentence. Statutory law provides that a
sentence involving confinement should be based in part upon the consideration that
measures “less restrictive than con finement have frequently or recently been applied
unsu cces sfully to the defenda nt.” Tenn . Code Ann. § 40-35-103(1)(C). Therefore,
the se ntenc e of sp lit confin eme nt in this case is in accord with the purposes of the
Criminal Sentencing Reform Act of 1989.
We affirm the ju dgme nt of the trial co urt.
-6- ____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ DAVID H. WELLES , Judge
___________________________________ DAVID G. HAYES, Judge
-7-