IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMB ER SESSION, 1996 October 30, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9601-CC-00042 ) Appellee, ) ) ) RUTHERFORD COU NTY VS. ) ) HON. J. S. DANIEL KAREN MCKNIGHT, ) JUDGE ) Appe llant. ) (Sentencing/Sale of Cocaine)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF RUTHERFORD CO UNTY
FOR THE APPELLANT: FOR THE APPELLEE:
NED JACKSON COLEMAN JOHN KNOX WALKUP 108 North Spring Street Attorney General and Reporter Suite 108 Murfreesboro, TN 37130 KAREN M. YACUZZO Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243
WILLIAM W HITESELL District Attorney General Third Floor, Judicial Building Murfreesboro, TN 37130
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
This is an appeal pursuant to R ule 3 Te nness ee Ru les of Ap pellate
Procedure, from the sentence imposed by the Criminal C ourt of Rutherford
County. On appeal, Appellant Karen McKnight argues that the trial court erred
in denying her request for alternative sentencing. For the reasons set forth, the
judgment of the trial court is affirmed.
I. FACTUAL BACKGROUND
On June 10, 19 95, Ap pellan t plead ed gu ilty to four counts of the sale of
cocaine under .5 grams and two counts of possession of cocaine. The plea
included Appellant’s agreement to serve a six year sentence for each of the first
four counts and an 11 month, 29 day sentence for the other two counts.
According to the plea dings, the parties ag reed tha t the App ellant cou ld seek to
have the sentence suspended; they also left the determination of whether the
sentences should be served consecutively to the trial court’s discretion. The
parties further agree d that A ppella nt wou ld be sentenced as a standa rd offender.
A sentencing hearing was held on August 14, 1995. After hearing proof
from several witnesses, including Appellant, the trial court imposed concurrent
sentences. The trial court also partially suspended Appellant’s sentence,
ordering her to serve one year of her sentence in prison and ordering that upon
release she is to be on probation for six years.
-2- II. APPELLANT’S STATUS AS A STANDARD OFFENDER
Appellant contends that the trial court erred in failing to sentence her as an
espe cially mitigated offender. As a part of the plea bargaining process, Appellant
agreed to both the length of her sentences and also to being sentenced as a
standard offende r. Accord ingly, this issu e is withou t merit. See State v. Mahler,
735 S.W .2d 226, 228 (Tenn. 198 7).
III. ALTERNATIVE SENTENCING
Appellant complains that she did not receive full suspension of her
sentence and probation for the entire length of her sentence. Probation is a
matter entrusted to the discretion of the trial judge and Appellant bears the
burden on appeal of showing that the sentence she received is inappropriate.
State v. Bingham, 910 S.W .2d 448, 456 (Tenn. Crim . App. 1995 ).
Tenn. Code A nn. § 40-35-1 02(5) provides in pertinent part that “convicted
felons committing the most severe offenses, possessing criminal histories
evincing a clear disregard for the laws and morals of society, and evincing failure
of past efforts of rehabilitation shall be given first priority regarding sentencing
involving incarceration. “A defendant who does not fall into the category set forth
in Section 40-35-102(5) and who is an especially mitigated or standard offender
of a Class C, D, or E felony is “presumed to be a favorable candidate fo r
alternative sentencing options in the absence of evidence to the contrary.” Id. §
40-35-102 (6); State v. Ashby, 823 S .W .2d 16 6, 169 (Ten n. 199 1). Th is simp ly
means that the trial judge must presume such a d efend ant to b e a favo rable
-3- candid ate for a sentence which does not involve in carcera tion. Byrd, 861 S.W.2d
at 379-80. This presumption is however rebuttable and incarceration may be
ordered if the court is presented with evidence which establishes
(A) Confinement is necessary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct;
(B) Confinement is neces sary to avoid depreciating the seriousness of the offense o r confinement is particularly suited or provide an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently b een ap plied uns uccess fully to the de fendan t.
Tenn . Code Ann. § 4 0-35-10 3(1); Ashby, 823 S.W.2d at 169.
This Court has recognized for some time that one or more of the fac tors
in Section 40-35-103(1) which, if properly established, rebut the presumption of
entitlement to a non-incarce rative sentence and justify the imposition of
confinem ent, may also serve to justify the denial of full proba tion. See, e.g.,
Bingham, 910 S.W.2d at 456, State v. Chrisman, 885 S.W.2d 834, 840 (Tenn.
Crim. App. 19 95); State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991) (recognizing § 40-35-103(1)(B) as codification of principle th at nature and
circumstances of offense and need for deterrence may justify denial of
probation). A fortiori, a discretionary denial of probation may be justified on the
basis that the evid ence s hows th at defen dant falls into the category of felons
described at Section 40-35-102(5) as being the most deserving of a sentence
involving incarceration. See e.g., Chrisman, 885 S.W.2d at 840. Therefore, in
reviewing a denial of proba tion on appe al, when the rec ord demonstrates that the
-4- defendant may not claim the presumption of entitlement to a non-inca rcerative
sentence, or that the presumption has been rebutted, this Court will sustain the
trial court’s discretionary de nial of probation if there is any evidenc e to support
that determination.
Appellant was convicted of four (4) Class C felonie s, and the State
concedes that Appellant is pres ump tively entitled to a sentence which does not
involve incarceration. However, the State argues that the presumption has been
rebutted through the trial cou rt’s findings that som e incarceration w as necess ary
to avoid depreciating the seriousness of the offense.
This Court has held that in order to overcome the presumption of
entitlement to a non-incarcerative sentence based on the need to avoid
depreciating the seriousness of the offense, “the circumstances of the offense as
committed must be especially violent, horrifying, shocking, reprehensible,
offensive or otherwise of an excessive or exaggerated degree, and the nature of
the offense must outweigh all factors fav oring a se ntence other tha t confinem ent.”
Bingham, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S.W.2d 370, 374-75
(Tenn. C rim. App. 199 1).
An isolated sale of cocaine may or may not given the circumstances of a
particu lar case c onstitu te suc h repre hens ible be havior that co nfinem ent is
-5- necessa ry to avoid depreciating the seriou sness o f it.1 However, where the
record shows, as here, that the defendant received a substantial portion of her
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMB ER SESSION, 1996 October 30, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9601-CC-00042 ) Appellee, ) ) ) RUTHERFORD COU NTY VS. ) ) HON. J. S. DANIEL KAREN MCKNIGHT, ) JUDGE ) Appe llant. ) (Sentencing/Sale of Cocaine)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF RUTHERFORD CO UNTY
FOR THE APPELLANT: FOR THE APPELLEE:
NED JACKSON COLEMAN JOHN KNOX WALKUP 108 North Spring Street Attorney General and Reporter Suite 108 Murfreesboro, TN 37130 KAREN M. YACUZZO Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243
WILLIAM W HITESELL District Attorney General Third Floor, Judicial Building Murfreesboro, TN 37130
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
This is an appeal pursuant to R ule 3 Te nness ee Ru les of Ap pellate
Procedure, from the sentence imposed by the Criminal C ourt of Rutherford
County. On appeal, Appellant Karen McKnight argues that the trial court erred
in denying her request for alternative sentencing. For the reasons set forth, the
judgment of the trial court is affirmed.
I. FACTUAL BACKGROUND
On June 10, 19 95, Ap pellan t plead ed gu ilty to four counts of the sale of
cocaine under .5 grams and two counts of possession of cocaine. The plea
included Appellant’s agreement to serve a six year sentence for each of the first
four counts and an 11 month, 29 day sentence for the other two counts.
According to the plea dings, the parties ag reed tha t the App ellant cou ld seek to
have the sentence suspended; they also left the determination of whether the
sentences should be served consecutively to the trial court’s discretion. The
parties further agree d that A ppella nt wou ld be sentenced as a standa rd offender.
A sentencing hearing was held on August 14, 1995. After hearing proof
from several witnesses, including Appellant, the trial court imposed concurrent
sentences. The trial court also partially suspended Appellant’s sentence,
ordering her to serve one year of her sentence in prison and ordering that upon
release she is to be on probation for six years.
-2- II. APPELLANT’S STATUS AS A STANDARD OFFENDER
Appellant contends that the trial court erred in failing to sentence her as an
espe cially mitigated offender. As a part of the plea bargaining process, Appellant
agreed to both the length of her sentences and also to being sentenced as a
standard offende r. Accord ingly, this issu e is withou t merit. See State v. Mahler,
735 S.W .2d 226, 228 (Tenn. 198 7).
III. ALTERNATIVE SENTENCING
Appellant complains that she did not receive full suspension of her
sentence and probation for the entire length of her sentence. Probation is a
matter entrusted to the discretion of the trial judge and Appellant bears the
burden on appeal of showing that the sentence she received is inappropriate.
State v. Bingham, 910 S.W .2d 448, 456 (Tenn. Crim . App. 1995 ).
Tenn. Code A nn. § 40-35-1 02(5) provides in pertinent part that “convicted
felons committing the most severe offenses, possessing criminal histories
evincing a clear disregard for the laws and morals of society, and evincing failure
of past efforts of rehabilitation shall be given first priority regarding sentencing
involving incarceration. “A defendant who does not fall into the category set forth
in Section 40-35-102(5) and who is an especially mitigated or standard offender
of a Class C, D, or E felony is “presumed to be a favorable candidate fo r
alternative sentencing options in the absence of evidence to the contrary.” Id. §
40-35-102 (6); State v. Ashby, 823 S .W .2d 16 6, 169 (Ten n. 199 1). Th is simp ly
means that the trial judge must presume such a d efend ant to b e a favo rable
-3- candid ate for a sentence which does not involve in carcera tion. Byrd, 861 S.W.2d
at 379-80. This presumption is however rebuttable and incarceration may be
ordered if the court is presented with evidence which establishes
(A) Confinement is necessary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct;
(B) Confinement is neces sary to avoid depreciating the seriousness of the offense o r confinement is particularly suited or provide an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently b een ap plied uns uccess fully to the de fendan t.
Tenn . Code Ann. § 4 0-35-10 3(1); Ashby, 823 S.W.2d at 169.
This Court has recognized for some time that one or more of the fac tors
in Section 40-35-103(1) which, if properly established, rebut the presumption of
entitlement to a non-incarce rative sentence and justify the imposition of
confinem ent, may also serve to justify the denial of full proba tion. See, e.g.,
Bingham, 910 S.W.2d at 456, State v. Chrisman, 885 S.W.2d 834, 840 (Tenn.
Crim. App. 19 95); State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991) (recognizing § 40-35-103(1)(B) as codification of principle th at nature and
circumstances of offense and need for deterrence may justify denial of
probation). A fortiori, a discretionary denial of probation may be justified on the
basis that the evid ence s hows th at defen dant falls into the category of felons
described at Section 40-35-102(5) as being the most deserving of a sentence
involving incarceration. See e.g., Chrisman, 885 S.W.2d at 840. Therefore, in
reviewing a denial of proba tion on appe al, when the rec ord demonstrates that the
-4- defendant may not claim the presumption of entitlement to a non-inca rcerative
sentence, or that the presumption has been rebutted, this Court will sustain the
trial court’s discretionary de nial of probation if there is any evidenc e to support
that determination.
Appellant was convicted of four (4) Class C felonie s, and the State
concedes that Appellant is pres ump tively entitled to a sentence which does not
involve incarceration. However, the State argues that the presumption has been
rebutted through the trial cou rt’s findings that som e incarceration w as necess ary
to avoid depreciating the seriousness of the offense.
This Court has held that in order to overcome the presumption of
entitlement to a non-incarcerative sentence based on the need to avoid
depreciating the seriousness of the offense, “the circumstances of the offense as
committed must be especially violent, horrifying, shocking, reprehensible,
offensive or otherwise of an excessive or exaggerated degree, and the nature of
the offense must outweigh all factors fav oring a se ntence other tha t confinem ent.”
Bingham, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S.W.2d 370, 374-75
(Tenn. C rim. App. 199 1).
An isolated sale of cocaine may or may not given the circumstances of a
particu lar case c onstitu te suc h repre hens ible be havior that co nfinem ent is
-5- necessa ry to avoid depreciating the seriou sness o f it.1 However, where the
record shows, as here, that the defendant received a substantial portion of her
income from cocaine sales, that she sold fairly significant amounts of cocaine,
drug dealing activities disrupted her neighborhood, we will not disturb the trial
court’s discretion ary judgm ent that at least som e incarce ration is ne cessar y to
avoid depreciating the seriousness of the offense.2
Accordingly, the judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ JOHN H. PEAY, JUDGE
___________________________________ DAVID H. WELLES, JUDGE
1 In State v. Hartley, 818 S.W .2d 370 ( Tenn . Crim. A pp. 1991 ); this Cou rt found th at a trial court erred in failing to grant probation in a cocaine sale case based on a finding that incarceration was necessary to avoid depreciating the seriousness of the offense. In that case the defendant was a youthful offender who played a relatively minor role in the felonious transaction. The defendant likewise had no financial interest in the sale. In the case sub judice Appellant sold significant amounts of cocaine for money on a number of occasions. Appellant also had a prior criminal record for theft.
2 Appellant testified her drug dealing often prompted neighbors to call police to their neighborhood.
-6-