State v. Burl Jarrett

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 23, 1997
• Docket: 02C01-9607-CC-00238
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1997 FILED July 23, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9607-CC-00238 ) Cecil Crowson, Jr. Appellee, ) Appellate C ourt Clerk ) ) HARDEMAN COUNTY VS. ) ) HON. JON KERRY BLACKWOOD BURL JARRETT, ) JUDGE ) Appellant. ) (Misdemeanor Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF HARDEMAN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES T. “JIM” SANDERSON JOHN KNOX W ALKUP WILLIAM G. HATTON Attorney General and Reporter P.O. Box 331 Bolivar, TN 38008 GEORGIA BLYTHE FELNER Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

ELIZABETH RICE District Attorney General

JERRY NORWOOD Assistant District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

The Defendant entered a plea of guilty to the Class A misdemeanor of

simple possession of cocaine. Sentencing was left to the discretion of the trial

judge. The trial judge sentenced the Defendant to serve six months in the county

jail. The Defendant appeals from his sentence. W e affirm the judgment of the

trial court.

The Defendant was charged by indictm ent with the Class B felony offense

of possession with the intent to deliver over .5 grams of cocaine. On the morning

of the trial, apparently after the jury was selected, a plea agreement was reached

whereby the Defendant pleaded guilty to simple possession of cocaine, a Class

A misdemeanor. Subsequently, the trial court conducted a sentencing hearing

after which the Defendant was sentenced to six months in the county jail with

seventy-five percent to be served.1 The trial court also levied a fine in the amount

of two hundred fifty dollars. In this appeal, the Defendant argues that this Court

should reduce his sentence.

W hen 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 presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

1 W e observe that the judgment reflects that seventy-five percent shall be served while a “sentencing order” reflects that fifty percent must be served.

-2- principles and all relevant facts and circum stances." State v. Ashby, 823 S.W .2d

166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received 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 treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 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 principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not m odify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Misdemeanor sentencing is controlled by Tennessee Code Annotated

section 40-35-302, which provides in part that the trial court shall impose a

specific sentence consistent with the purposes and principles of the 1989

Criminal Sentencing Reform Act. In misdemeanor sentencing, a separate

sentencing hearing is not mandatory, but the court is required to provide a

defendant with a reasonable opportunity to be heard as to the length and manner

of the sentence. Tenn. Code Ann. § 40-35-302(a). The trial court retains the

-3- authority to place the defendant on probation either immediately or after a time

of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e).

Misdemeanor sentencing is designed to provide the trial court with continuing

jurisdiction and a great deal of flexibility. One convicted of a misdemeanor, unlike

one convicted of a felony, is not entitled to a presumption of a minimum

sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994 ).

The transcript from the guilty plea hearing reflects that these charges

resulted from a search warrant being executed on the Defendant’s residence. A

co-defendant was at the residence and was observed flushing a plastic bag down

the toilet. The officers were apparently able to secure the sewage discharge pipe

at the residence and retrieved from it a plastic bag containing a white powder.

The white powder was determined to be approximately one gram of cocaine. W e

do note that the co-defendant indicated that the cocaine belonged to him rather

than to the Defendant.

The presentence report reflects that the Defendant was twenty-nine years

old and was married. He dropped out of school in the eleventh grade and had

apparently been unable to maintain employment due to a disability. The report

also shows that the Defendant has one prior felony drug conviction involving

cocaine which occurred in 1995. The conviction in the case sub judice was

entered on February 1, 1996, although the offense took place prior to the

previous felony conviction. In addition, the Defendant received a felony forgery

conviction in 1985 and has had several traffic offenses. While on probation for

the previous felony cocaine conviction the Defendant tested positive for cocaine

use on two occasions. The Defendant chose not to make a statement for

-4- purposes of the presentence report and also chose not to testify at his sentencing

hearing.

This Court should not place trial judges in a “judicial straight-jacket”

regarding misdemeanor sentencing or in any other area, and we are reluctant to

interfere with the “traditional discretionary powers” of trial judges. See Moten v.

State, 559 S.W .2d 770, 773 (Tenn. 1977). The sentence imposed by the trial

judge for this Class A misdemeanor offense is in the middle of the range. From

this record, we cannot conclude that the trial judge erred or abused his discretion.

The judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ JOE G. RILEY, JUDGE

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