State v. Copeland

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 13, 1997
• Docket: 03C01-9605-CC-00196
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE May 13, 1997 MARCH 1997 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. No. 03C01-9605-CC-00196 ) BLOUNT COUNTY Appellee, ) ) Hon. D. Kelly Thomas, Judge VS. ) ) (SENTENCING) LISA GAYE COPELAND, ) No. C-8930 BELOW ) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

STACEY D. NORDQUIST JOHN KNOX WALKUP Assistant District Public Defender Attorney General and Reporter 419 High Street Maryville, TN 37801 MERRILYN FEIRMAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

MICHAEL L. FLYNN District Attorney General

EDWARD P. BAILEY, JR. Assistant District Attorney General 363 Court Street Maryville, TN 37804-5906

OPINION FILED:__________________

AFFIRMED

CORNELIA A. CLARK, Special Judge

1 OPINION

Defendant Lisa Copeland appeals as of right from the judgment of the trial

court ordering her to serve the sentenced imposed in this case consecutively to a

previous sentence imposed upon her in Sevier County, and denying her request for

probation. The decision of the trial court is affirmed.

The defendant is a divorced mother of three. She began using cocaine in

1992. Her job as a motel housekeeper did not provide enough income to support

her family and her daily cocaine habit. She lived with her parents but spent time

with a male co-defendant.

On December 15, 1994, defendant committed the offenses of aggravated

burglary and theft over $500 that are at issue in this case. On December 16, 1994

the defendant was arrested in Sevier County after committing a second aggravated

burglary there. She immediately admitted her involvement in both offenses.

On March 27, 1995, defendant pled guilty in Sevier County to aggravated

burglary. She was given credit for four months of time served and was placed on

three years supervised probation.

On July 25, 1995, defendant entered pleas of guilty in this case to

aggravated burglary, a Class C felony, and theft over $500.00, a Class E felony.

Under the terms of the plea agreement, defendant apparently agreed to a three-

year sentence for the aggravated burglary and a one-year sentence for the theft.

The sentences were run concurrent to one another. All other issues concerning

place and manner of service of her sentence were to be addressed at a later

sentencing hearing. She remained free on bond.

On July 31, 1995, defendant reported to the Blount County probation officer

2 for a presentence interview. She tested positive for marijuana during that visit. The

officer also noted that she had already committed a prior technical violation of her

Sevier County probation by admitting use of marijuana in June 1995.

On November 5, 1995, defendant was charged with misdemeanor theft in

Knox County. On November 6 she pled guilty and was placed on probation for

eleven months twenty-nine days. On December 5, 1995, defendant was charged

with another misdemeanor theft in Knox County. On December 8 she received

another suspended sentence of eleven months, twenty-nine days. Following these

convictions a probation violation warrant was issued in Sevier County.

The sentencing hearing in this case was conducted on January 2, 1996.

Defendant testified that all the offenses were committed to support her cocaine

addiction. She admitted that she had continued to use cocaine since the entry of

her plea in July 1995.

After hearing all the proof, the trial judge denied defendant’s request for

probation. She was ordered to serve one year in the Blount County Jail followed by

two years in the Community Corrections Program. Her sentences were run

consecutively to the previously-imposed Sevier County sentence for aggravated

burglary.

When a defendant complains of her sentence, we conduct a de novo review

with a presumption of correctness of the findings of the trial court. Tenn. Code Ann.

§40-35-401(d). This presumption 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). However,

the burden of showing that the sentence was improper is upon the appealing party.

Tenn. Code Ann. §40-35-401(d) Sentencing Commission Comments.

In determining an appropriate sentence, the court must consider the

3 following: (1) any evidence from the trial and sentencing hearing; (2) the

presentence report; (3) the principles of sentencing; (4) the nature and

characteristics of the offense; (5) information concerning the enhancing and

mitigating factors as found in Tenn. Code Ann. §§40-35-113 and 114; and (6) the

defendant’s statement in her own behalf concerning sentencing. Tenn. Code Ann.

§40-35-210(b).

I.

The defendant first argues that it was error for the trial court to deny

probation. As a person with no significant criminal history, convicted of a Class C

felony and a Class A misdemeanor, the defendant was “presumed to be a favorable

candidate for alternative sentencing”. Tenn. Code Ann. §40-35-102(6). However,

this presumption may be overcome by “evidence to the contrary”. Id.

“Evidence to the contrary” may include a finding that one or more of the

following sentencing considerations apply:

(A) Confinement is necessary to protect society by

restraining a defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the

seriousness of the offense or confinement is particularly suited to

provide an effective deterrence to others likely to commit similar

offenses; or

(C) Measures less restrictive than confinement have

frequently or recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. §40-35-103(1). Insofar as they are relevant to the -103

considerations, courts may also apply the mitigating or enhancing factors set forth

in Tenn. Code Ann. §§40-35-113 and 114. See Tenn. Code Ann. §40-35-210(b)(5);

State v. Lloyd Mills Matthews, Jr., No. 03C01-9505-CR-00153 (Tenn. Crim. App.,

Knoxville, May 1, 1996). Finally, Tenn. Code Ann. §40-35-103(5) provides that in

4 determining whether an alternative sentence is appropriate, courts should consider

the defendant’s potential or lack of potential for rehabilitation.

In this case, the trial court gave the following reasons for denying alternative

sentencing: (1) the defendant has a history of other convictions and criminal

activities; and (2) the defendant has frequently and recently been unsuccessful in

completing probation, making the potential for rehabilitation poor. These reasons

are supported by the record.

Defendant has acknowledged a lengthy history of illegal drug use. She

testified at her sentencing hearing that during the one-year period before the

commission of this offense she spent at least sixty dollars ($60.00) per day on

cocaine for her personal use. In her presentence report interview she stated that

for a year and a half she “shot up” $300.00 to $400.00 per day of cocaine. She also

acknowledged using marijuana “a couple of times a week” since she was

seventeen. However, she refused to disclose the source of her supply.

Additionally, while this case was pending defendant showed no greater

willingness to follow the law. While on bond for the instant offenses, and on

probation from the Sevier County aggravated burglary, the defendant committed two

additional acts of theft, for which she has now pled guilty. She continued to use

drugs. Thus measures less restrictive than incarceration had recently been

unsuccessful. Defendant did not take full responsibility for her conduct, blaming her

boyfriends for causing her problems. And although she indicated to the court that

she desired drug treatment, she stated in her presentence interview that she did not

need treatment. She had not maintained employment to provide for her children.

Defendant did not show her suitability for probation. The trial court acted

within its discretion in denying probation. This issue is without merit.

5 II.

Defendant next contests the trial court’s judgment that the sentences in this

case should be run consecutively to the sentence in the Sevier County case. We

note that Rule 32(c)(2), Tenn. R. Crim. P. gives discretion to the trial court to impose

consecutive sentences when a defendant has “additional sentences not yet fully

served.” This court has previously held that the exercise of discretion under Rule

32(c)(2) essentially involves the consideration of the consecutive sentencing criteria

provided in T.C.A. §40-35-115(b). See State v. Thomas Edward Capps, No.

01C01-9506-CC-00164 (Tenn. Crim. App., Nashville, February 29, 1996).

The trial court found that the defendant qualified for consecutive sentences

based on the same factors he considered in denying probation: the commission and

conviction of additional offenses while on probation from the Sevier County case

and bond from the Blount County cases, and the defendant’s general criminal

behavior and drug use since she entered the guilty pleas in Sevier County and in

Blount County. The record supports this determination. Whether sentences are to

be served concurrently or consecutively is a matter addressed to the sound

discretion of the trial court. State v. James, 688 S.W.2d 463 (Tenn. Crim. App.

1984). Defendant in this case admits an extensive history of illegal drug use.

Extensive criminal history alone will support consecutive sentencing. See, e.g.,

State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994). This defendant

has now committed several crimes in order to obtain money to support her

extensive drug habit.

Finally, we believe that this history warrants the conclusion that the

consecutive sentences are necessary to protect the public from further misconduct

by the defendant, and reasonably reflect the severity of the offenses. See State v.

6 Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). Based on these findings, we hold

that the trial court had an adequate basis for concluding that consecutive sentences

were necessary.

The judgment of the trial court is affirmed in all respects.

__________________________________ CORNELIA A. CLARK SPECIAL JUDGE

CONCUR:

__________________________________ JOHN H. PEAY JUDGE

__________________________________ PAUL G. SUMMERS JUDGE

7 IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE

STATE OF TENNESSEE, ) C.C.A. No. 03C01-9605-CC-00196 ) BLOUNT COUNTY Appellee, ) ) Hon. D. Kelly Thomas, Judge VS. ) ) (SENTENCING) LISA GAYE COPELAND, ) No. C-8930 BELOW ) Appellant. )

JUDGMENT

Came the appellant, Lisa Gaye Copeland, by counsel and also came the attorney general on behalf of the state, and this case was heard on the record on appeal from the Criminal Court of Blount County; and upon consideration thereof, this court is of the opinion that there is no reversible error in the judgment of the trial court.

Our opinion is hereby incorporated in this judgment as if set out verbatim.

It is, therefore, ordered and adjudged by this court that the judgment of the trial court is AFFIRMED, and the case is remanded to the Criminal Court of Blount County for execution of the judgment of that court and for collection of costs accrued below.

It appears that the appellant is indigent. Costs of this appeal will be paid by the State of Tennessee.

PER CURIAM

John H. Peay, Judge Paul G. Summers, Judge Cornelia A. Clark, Special Judge