State v. Elbert Marable

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JULY SESSION, 1996

April 3, 1997

Cecil W. Crowson

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9512-CC-00436 Appellate Court Clerk

)

Appellee, )

)

) RUTHERFORD COUNTY VS. )

) HON. J.S. DANIEL

ELBERT MURFREE MARABLE, ) JUDGE SR., )

Appellant. ) (Direct Appeal-Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

GUY R. DOTSON CHARLES W. BURSON 102 South Maple Street Attorney General and Reporter Murfreesboro, TN 37130 JANIS L. TURNER

Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

BILL WHITESELL

District Attorney General Third Floor Judicial Building Murfreesboro, TN 37130

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

Appellant Elbert Murfree Marable, Sr. entered a plea of guilty in the Rutherford County Circuit Court to possession of a Schedule II controlled substance with intent to sell or deliver. As a R ange I stand ard offender, Appellant received a sentence of six years in the county workhouse. The trial judge ordered that Appellant serve one year of incarceration before re- applying for probation. In this direct appeal, Appellant complains that he should have rec eived full pro bation from the outse t.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL BACKGROUND

The proof shows that, on November 18, 1994, officers of the Murfreesboro Police Department executed a search warrant on 539 East Sevier Street, a residence operated by Appellant as a “good time” house. The police recovered three grams of cocaine from behind a bathtub and found a large qu antity of bee r, liquor, and soda in a refrigerato r with a m aster lock . Appellant stated that he sold the beer for $1.50 each.

On May 1, 1995, a Rutherford County Grand Jury indicted Appellant for possession of over 0.5 grams of a Schedule II controlled substance with intent to sell or de liver in violation o f Tenn essee Code Annota ted Sec tion 39-1 7-417. He was also indicted for storage of intoxicating liquors for the purpose of resale, a violation of Tennessee Code Annotated Section 39-17-713. On June

3

9, 1995, Appellant pled guilty to the reduced charge of possession of less than 0.5 gram s of a Sc hedule II controlled s ubstan ce with inte nt to sell or de liver. The second count of the indictment was dismissed. As part of the plea agreem ent, App ellant rece ived a six-ye ar sente nce in the county w orkhou se. As sta ted pre viously , the trial c ourt de nied A ppella nt’s pe tition for a fully suspended sentence and ordered one year of incarceration.

II. SENTENCING

Wh en an app eal challenges the length, range , or manne r of service of a sentence, this Court conducts a de novo review with a presumption that the determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d) (1990). However, this presumption of correctness is “conditioned upon the affirmative showing that the trial court in the record considered the sentencing principles and a ll relevant facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91). In the e vent that the record fa ils to demon strate such co nsideration, review o f the sentence is purely de novo . Id. If appellate review reflects that the trial court properly considered all relevant factors and its finding s of fac t are ad equa tely sup ported by the re cord, th is Court must affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). In conducting a review, this Court must consider the evidence, the presentence report, the sentencing principles, the arguments of counsel, the nature and charac ter of the offe nse, m itigating an d enha ncem ent factors , any statem ents made by the de fendan t, and the p otential for re habilitation o r treatme nt. State v. Holland, 860 S.W .2d 53, 60 (T enn. Crim. A pp. 1993). T he defend ant bears

4

the burd en of sho wing the improp riety of the se ntence impos ed. State v. Gregory, 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).

We note initially that the trial judge did not ad dress on the record Appellant’s en titlement to the presu mption favoring a non-incarce rative sentence. See, Tenn. Code Ann. Sec. 40-35-102(6). For this reason, our review of Appe llant’s sentence w ill be purely de novo.

A. MANNER OF SERVICE

Appellant first argues that the trial court erred in denying his petition for a suspended sentence. The Tennessee Criminal Sentencing Reform Act of 1989 recognizes the limited capacity of state prisons and mandates that “convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing fa ilure of pas t efforts of reh abilitation sh all be given first priority regarding sentencing involving incarceration.” Tenn. Code Ann. § 40-35- 102(5 ). A defe ndan t who d oes n ot qua lify as su ch an d who is an es pecia lly mitigated or standard offender of a Class C, D, or E felony is “presumed to be a favorable candidate for sentencing options in the absence of evidence to the contrary.” Id. § 40-35-102(6). A sentencing court may then only deny alternative sentencing when presented with sufficient evidence to overcome the pres umptio n. State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91). A denia l of altern ative se ntenc ing in th e face of the s tatutor y presu mptio n sho uld be based on the following considerations:

5

(A) Con fineme nt is nece ssary to p rotect soc iety by restraining a defendant who has a long history of criminal c onduc t;

(B) Co nfinem ent is n eces sary to avoid depreciating the seriousness of the offense or confineme nt is particularly suited to provide an effective deterrence to o thers likely to comm it similar offenses; or (C) Measures less restrictive than confinement have fr eque ntly or re cently b een a pplied unsu cces sfully to the defe ndant.

Tenn. C ode Ann . § 40-35-103 (1).

As a Range I standard offender convicted of a Class C felony, Appellant is entitled to th e statutorily-m andate d presu mption of alternative senten cing. While failing to make specific reference to this presumption during the suspe nded s entenc e hearin g, the trial cou rt did point o ut that its dec ision to deny A ppella nt’s pe tition wa s bas ed up on his prior re cord a nd the fact tha t this offense occurred during a probationary period. As stated previously, when measures less restrictive than confinement have been recently applied without success, a sentencing court may order incarceration in the face of an alternative s entenc e presu mption . See id. (C). Here , we believe that, because Appellant committed this cocaine possession offense while on probation from another cocaine possession offense, a sentence involving confinem ent is warra nted. See, e.g., State v. Bowman, No. 01C01-9412-CC- 00436 , 1995 W L 5947 18, at *4 (T enn. C rim. App . Oct. 6, 19 95), perm. app. denied, (Tenn . Mar. 4, 19 96). In light of A ppellant’s failure to res pond to

6

proba tion in th e pas t, a pun ishm ent les s restric tive than confin eme nt wou ld only serve to give him the opportunity to continue his pattern of unlawful behavio r. See State v. Windham, No. 03C01-9503-CR-00103, 1996 WL 134955 , at *2 (Tenn. C rim. App. Ma r. 27, 1996).

B. REAPPLICATION FOR PROBATION Appellant also a rgues that the trial cou rt erred in ordering tha t he serve one year of his sentence before re-applying for probation. Appellant maintains that the trial court ordered a sentence of split confinement, a one year sentence of confinement followed by a period of probation, and that, under Tennessee Code Annotated Section 40-35-306(c), he should have the opportu nity to re-ap ply for a sus pende d sente nce eve ry two mo nths. W e disagree. The record clearly reflects that the trial court rejected any form of alternative sentence and, pursuant to the plea agreement, sentenced Appellant to a six-year period of confinement in the county workhouse.1 The trial cou rt in no w ay ass ured A ppella nt that th e bala nce o f his sen tence would be suspended following successful completion of his first year of incarceration -- only that he was required to serve one year before he would again have the opportunity to apply for probation.2 Because Appellant wa s ordered to se rve his sentence in the county workhouse, the trial court retained full jurisdiction over the m anner o f service of h is senten ce. See Tenn. Code Ann. § 40-35- 212(c ). Given this sta tutory p rovision , we be lieve tha t the trial c ourt wa s within

1 While the judgment form indicates that Appellant is to serve his sentence in the Tennessee Department of Correction, the transcript of the suspended sentence hearing as well as the plea agreement show that Appellant is to serve his sentence in the county workhouse.

2 Section 4 0-35-30 6(c) app lies only to sen tences involving sp lit confinem ent. Bec ause A ppellant did not receive a sentence involving split confinement, Section 40-35-306(c) is inapplicable, and Appellan t’s claim is w ithout m erit.

7

its discretion in requiring A ppellant to serve o ne year of his sen tence before re-applyin g for prob ation. See, e.g., State v. Steward , No. 02C01-9307-CC- 00161 , 1995 W L 2760 03, at *1 n .1 (Ten n. Crim. A pp. May 10, 199 5), perm. app. denied, (Tenn. Oc t. 14, 1996).

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

WILLIAM M. BARKER, JUDGE