IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED MARCH 1997 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9604-CC-00131 April 17, 1997 Appellee, * HENRY COUNTY
VS. * Hon. Julian P. Guinn, Judge Cecil Crowson, Jr. GINA RAE MERRELL, * (Possession Controlled Substance with Appellate C ourt Clerk Intent to Deliver (2 counts); Possession Appellant. * Controlled Substance (1 count))
For Appellant: For Appellee:
W. Jeffrey Fagan Charles W. Burson Assistant Public Defender Attorney General & Reporter 117 Forrest Avenue North P.O. Box 663 Georgia Blythe Felner Camden, TN 38320 Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493
Robert Gus Radford District Attorney General 24th Judicial District P.O. Box 686 Huntingdon, TN 38344
Vicky Snyder Assistant District Attorney General P.O. Box 94 Savannah, TN 38372
OPINION FILED: __________________
AFFIRMED
GARY R. WADE, JUDGE OPINION
The defendant, Gina Rae Merrell, was indicted in five counts for the
following offenses: counts (1) and (2), possession of a Schedule IV drug with intent
to deliver or sell; count (3), possession of a Schedule III drug with intent to deliver
or sell; count (4), simple possession of a Schedule VI drug (marijuana) less than
one-half ounce; and count (5), possession of over .5 grams Schedule II drug
(cocaine) with intent to deliver or sell. She pled guilty to counts two, three, and four;
the remaining counts were dismissed by the state. On counts two and three, the
trial court imposed a sentence of two years; the defendant is to be placed on
supervised probation after the service of six months. On count four, the trial court
imposed a sentence of eleven months, twenty-nine days, with supervised probation
after six months. All three sentences are to be served concurrently.
In this direct appeal, the sole issue is whether the trial court erred by
denying full probation. We find no error and affirm the judgment of the trial court.
On April 14, 1995, police executed a search warrant at the home of
Jerry Tharpe. The defendant was present. A pill bottle containing seven darvon
tablets and twenty cylert tablets was inside her purse. The conviction in count three
is based on the sixty-seven lortab tablets found inside a small black bag owned by
the defendant. The conviction in count four is based on a marijuana cigarette in the
same bag. 1
At the sentencing hearing, the defense attorney informed the trial
judge that the defendant had recently been released from the hospital where she
1 This information is based on the affidavits of complaint as set forth in the presentencing report. The guilty plea hearing transcript is not included in the record.
2 had been diagnosed as having depression. Defense counsel also informed the
court that the defendant is required to undergo physical therapy three days a week
for treatment for bone spurs. The trial judge questioned the defendant about
whether she had a drug problem, noting the defendant had committed these
offenses after going through drug rehabilitation. The defendant claimed that she
was drug-free at the time of sentencing.
The presentence report shows that the defendant has ten prior
convictions in 1995 for violating the "bad check law." She has two driving on
revoked license convictions, one which occurred in 1992 and one from 1995. She
also has a 1992 conviction for unlawful use of a license and she has a 1991
conviction for simple possession of marijuana.
Twenty-six years of age at the time of sentencing, the defendant
testified that she suffered from depression, asthma, arthritis, recurring cervical
cancer, bursitis, and bone spurs in her feet. She admitted having a drug problem
dating back to when she was eleven years old and had been through drug
rehabilitation twice. The defendant has her GED and a limited work history, having
primarily worked as a waitress at various places.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review 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 principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
3 Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). “[E]ach case must be bottomed upon its own facts.” State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987).
4 Here, the trial court did not state on the record the specific reasons for
denying immediate probation; however, the defendant's lengthy prior record,
although all for misdemeanors, clearly warranted a jail sentence. See Tenn. Code
Ann. § 40-35-103(1)(A). Despite her various prior convictions, the defendant has
never been ordered to serve more than ten days in confinement, having always
received sentences that were almost all entirely suspended. Two of the arrests for
violating the bad check law and one arrest for driving on a revoked license occurred
after the defendant was arrested and released on bond for the crimes in this case.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED MARCH 1997 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9604-CC-00131 April 17, 1997 Appellee, * HENRY COUNTY
VS. * Hon. Julian P. Guinn, Judge Cecil Crowson, Jr. GINA RAE MERRELL, * (Possession Controlled Substance with Appellate C ourt Clerk Intent to Deliver (2 counts); Possession Appellant. * Controlled Substance (1 count))
For Appellant: For Appellee:
W. Jeffrey Fagan Charles W. Burson Assistant Public Defender Attorney General & Reporter 117 Forrest Avenue North P.O. Box 663 Georgia Blythe Felner Camden, TN 38320 Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493
Robert Gus Radford District Attorney General 24th Judicial District P.O. Box 686 Huntingdon, TN 38344
Vicky Snyder Assistant District Attorney General P.O. Box 94 Savannah, TN 38372
OPINION FILED: __________________
AFFIRMED
GARY R. WADE, JUDGE OPINION
The defendant, Gina Rae Merrell, was indicted in five counts for the
following offenses: counts (1) and (2), possession of a Schedule IV drug with intent
to deliver or sell; count (3), possession of a Schedule III drug with intent to deliver
or sell; count (4), simple possession of a Schedule VI drug (marijuana) less than
one-half ounce; and count (5), possession of over .5 grams Schedule II drug
(cocaine) with intent to deliver or sell. She pled guilty to counts two, three, and four;
the remaining counts were dismissed by the state. On counts two and three, the
trial court imposed a sentence of two years; the defendant is to be placed on
supervised probation after the service of six months. On count four, the trial court
imposed a sentence of eleven months, twenty-nine days, with supervised probation
after six months. All three sentences are to be served concurrently.
In this direct appeal, the sole issue is whether the trial court erred by
denying full probation. We find no error and affirm the judgment of the trial court.
On April 14, 1995, police executed a search warrant at the home of
Jerry Tharpe. The defendant was present. A pill bottle containing seven darvon
tablets and twenty cylert tablets was inside her purse. The conviction in count three
is based on the sixty-seven lortab tablets found inside a small black bag owned by
the defendant. The conviction in count four is based on a marijuana cigarette in the
same bag. 1
At the sentencing hearing, the defense attorney informed the trial
judge that the defendant had recently been released from the hospital where she
1 This information is based on the affidavits of complaint as set forth in the presentencing report. The guilty plea hearing transcript is not included in the record.
2 had been diagnosed as having depression. Defense counsel also informed the
court that the defendant is required to undergo physical therapy three days a week
for treatment for bone spurs. The trial judge questioned the defendant about
whether she had a drug problem, noting the defendant had committed these
offenses after going through drug rehabilitation. The defendant claimed that she
was drug-free at the time of sentencing.
The presentence report shows that the defendant has ten prior
convictions in 1995 for violating the "bad check law." She has two driving on
revoked license convictions, one which occurred in 1992 and one from 1995. She
also has a 1992 conviction for unlawful use of a license and she has a 1991
conviction for simple possession of marijuana.
Twenty-six years of age at the time of sentencing, the defendant
testified that she suffered from depression, asthma, arthritis, recurring cervical
cancer, bursitis, and bone spurs in her feet. She admitted having a drug problem
dating back to when she was eleven years old and had been through drug
rehabilitation twice. The defendant has her GED and a limited work history, having
primarily worked as a waitress at various places.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review 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 principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
3 Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). “[E]ach case must be bottomed upon its own facts.” State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987).
4 Here, the trial court did not state on the record the specific reasons for
denying immediate probation; however, the defendant's lengthy prior record,
although all for misdemeanors, clearly warranted a jail sentence. See Tenn. Code
Ann. § 40-35-103(1)(A). Despite her various prior convictions, the defendant has
never been ordered to serve more than ten days in confinement, having always
received sentences that were almost all entirely suspended. Two of the arrests for
violating the bad check law and one arrest for driving on a revoked license occurred
after the defendant was arrested and released on bond for the crimes in this case.
These drug offenses occurred after the defendant had just completed a drug
rehabilitation program. A period of "shock" confinement may be necessary to
protect society from the defendant's propensity to repeatedly violate the law. Tenn.
Code Ann. § 40-35-103(1)(A).
Significantly, in the presentence report, the defendant gave her version
of events as follows:
I [pled] guilty to [one] marijuana cig., the medication belonging to Baker child [sic] and the same pills my mother is serving time in prison for right now. She gave me the pills to keep for her appeal. I'm guilty of having [one] marijuana cig, and being in the wrong place at the wrong time.
Lack of candor has traditionally been a valid reason for the denial of probation.
State v. Poe, 614 S.W.2d 403 (Tenn. Crim. App. 1981). "The opportunity for
probation is always enhanced by the acceptance of responsibility in the honest
recitation of both the facts underlying the offense and the circumstances under
which the crime was committed." State v. Michelle Westfield, No. 03C01-9604-CC-
00159, slip op. at 5 (Tenn. Crim. App., at Knoxville, March 4, 1997). Under these
circumstances, we cannot conclude the trial court erred by ordering a period of
confinement.
5 Accordingly, the judgment is affirmed.
________________________________________ Gary R. Wade, Judge
CONCUR:
___________________________ Joe B. Jones, Presiding Judge
___________________________ Curwood Witt, Judge