State v. Eric Woodard

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 11, 1998
• Docket: 02C01-9707-CR-00253
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED JULY 1998 SESSION September 11, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9707-CR-00253 Appellee, ) ) SHELBY COUNTY vs. ) ) HON. CHRIS CRAFT ERIC D. WOODARD, ) ) (Possession of Marijuana to ) Sell or Deliver) Appellant, ) ) AFFIRMED - RULE 20

FOR THE APPELLANT: FOR THE APPELLEE:

RANDALL P. SALKY JOHN KNOX WALKUP 266 South Front Street Attorney General & Reporter Memphis, TN 38103 PETER M. COUGHLAN Assistant Attorney General 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493

JERRY KITCHEN Assistant Dist. Attorney General 201 Poplar Avenue, Third Floor Memphis, TN 38103

OPINION FILED: _____________

AFFIRMED

CURWOOD WITT, JUDGE OPINION

The defendant, Eric D. Woodard, appeals the decision of the Shelby

County Criminal Court to deny probation of his plea-bargained one-year sentence.

The trial court imposed the sentence, along with a $2,000 fine, in consequence of

the defendant’s guilty plea to the Class E felony of possessing marijuana with intent

to sell or deliver. We have reviewed the record on appeal, including the briefs of the

parties, the transcript of the sentencing hearing, and the presentence report, and

we affirm the denial of probation pursuant to Rule 20 of the rules of this court.

The trial court considered the applicable principles of the Sentencing

Reform Act and articulated its findings of fact. Its decision is presumptively correct.

Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166 (Tenn.

1991).

At the time of sentencing, the twenty-three year-old defendant had a

previous “non-judicially adjusted” juvenile charge of marijuana possession, an

offense he admitted. Also, as an adult, he had been convicted of assault and his

probation for this offense ended only a few weeks before the drug sale that resulted

in the present conviction. The defendant admitted the use of marijuana subsequent

to the adjustment of his juvenile charge and throughout the probation on the assault

charge. He admitted that, during the time when the present offense (selling 115.4

grams for $325) was committed, he was extensively involved in selling marijuana

and was a “dope dealer.” The trial court denied alternative sentencing chiefly

because alternative sentencing had been unsuccessful in the past. The trial court

properly found that the evidence overcame the presumption of favorable candidacy

for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997); Tenn.

Code Ann. § 40-35-103(1)(C)(1997) (providing that a sentence involving

confinement may be based on the fact that “measures less restrictive than

confinement have . . . recently been applied unsuccessfully to the defendant”).

Moreover, the burden rests upon the defendant to demonstrate entitlement to

probation. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995);

2 see Tenn. Code Ann. § 40-35-303(b) (1997).

The trial court’s denial of probation comes to this court presumed to

be correct. The record reflects nothing that overcomes this presumption.

See Ashby, 823 S.W.2d at 169.

The judgment of the trial court is AFFIRMED pursuant to Rule 20.

Tenn. R. Ct. Crim. App. 20.

_________________________ CURWOOD W ITT, Judge

CONCUR:

________________________ JOE G. RILEY, Judge

_________________________ ROBERT W. WEDEMEYER, Special Judge