IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION FILED April 1, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9705-CR-00193 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, KEITH A. JACKSON, ) JUDGE ) Appellee. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES E. WALDMAN JOHN KNOX WALKUP 147 Jefferson Ave. Attorney General & Reporter Suite 1102 Memphis, TN 38103 GEORGIA BLYTHE FELNER Counsel for the State John Sevier Building 425 Fifth Ave. North Nashville, TN 37243-0493
JOHN W. PIEROTTI District Attorney General
LEE COFFEE Asst. District Attorney General 201 Poplar, Suite 301 Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY, Judge OPINION
The defendant was indicted in January 1996 on charges of possession with
intent to sell an amount of marijuana in excess of ten pounds and possession with intent
to deliver marijuana in the same amount. On November 18, 1996, he pled guilty to
possession with intent to sell an amount of marijuana under ten pounds, a Class E felony.
After a hearing, he was sentenced to one year in the county workhouse and was fined
twenty-five hundred ($2,500) dollars.
In this appeal as of right, the defendant argues that the trial court erred in
denying his request for full probation. After a review of the record and applicable law, we
find no error and affirm the judgment of the court below.
In August 1995, the defendant was arrested in Memphis after he was
found transporting more than ten pounds of marijuana. At the sentencing hearing, he
testified that a friend had asked him to take the marijuana by bus from Dallas, Texas, to
Cincinnati, Ohio, and he had agreed. He explained to the court that at the time he had
been at a “very weak point in [his] life” and had made a bad decision. He testified that
this incident was the first and last time he had ever agreed to participate in such a
transaction.
The defendant, who lives in Dallas, was twenty-seven years old at the time
of his sentencing hearing. He had spent five years in the army, had served in Operation
Desert Shield, and had received the Army Achievement Medal. He testified that after
leaving the army, he had a difficult time both personally and financially. He explained that
he had been very upset when his wife left him and took his children. His financial
problems grew when he had to support his ailing mother and his younger brother who
2 was still in high school. On cross-examination, he admitted that his wife had left in
November of 1993, nearly two years before his arrest. However, he did not obtain a
divorce until April 1996.
The defendant testified that after leaving the army, he enrolled at the Art
Institute of Dallas and financed his schooling though the G.I. Bill. It was at the school
where he met Allen Banberry, the man who asked him to transport the marijuana. He
testified that Banberry offered to pay him eighteen hundred dollars ($1,800) for making
the trip. Because he was in school and had little money, the defendant agreed to
Banberry’s offer.
Since his arrest, the defendant has earned an associate’s degree in music
and video business and is employed by PDF Productions doing free-lance videography
work. He also hosts and directs a television show in Dallas. Prior to this arrest, the
defendant had no history of a previous criminal record or criminal behavior.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A.
§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “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).
In determining the specific sentence and the possible combination of
sentencing alternatives, the court shall consider the following: (1) any evidence from the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
3 and the arguments concerning sentencing alternatives, (4) the nature and characteristics
of the offense, (5) information offered by the State or the defendant concerning
enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the
defendant’s statements in his or her own behalf concerning sentencing. T.C.A.
§ 40-35-210(b). In addition, the legislature established certain sentencing principles
which include the following:
(5) In recognition that state prison capacities and the funds to build and maintain them are limited, 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 at rehabilitation shall be given first priority regarding sentencing involving incarceration; and
(6) A defendant who does not fall within the parameters of subdivision (5) and is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.
T.C.A. § 40-35-102.
After reviewing the statutes set out above, it is obvious that the intent of the
legislature is to encourage alternatives to incarceration in cases where defendants are
sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,
it is also clear that there is an intent to incarcerate those defendants whose criminal
histories indicate a clear disregard for the laws and morals of society and a failure of past
efforts to rehabilitate.
The defendant now appeals and argues that he should have been granted
full probation. The State argues that the defendant has no grounds for appeal because
the defendant asked that his petition be denied. Apparently, the trial judge originally
planned to sentence the defendant to 120 days with the remainder of the sentence to be
served on probation. When defense counsel heard 120 days, he told the court that he
4 thought the defendant would actually serve less time if the trial court denied the defendant
any probation and sentenced him to a full year. The trial judge said he was not convinced
that the defendant would serve less time but that he would follow the defendant’s request.
As a result, the petition for probation was denied and the defendant was ordered to serve
his sentence in the county workhouse.
The State argues that the defendant cannot appeal when it was his request
that the petition be denied. We do not agree. The defendant took the “all or nothing”
approach to the probation question. The trial judge felt that some period of incarceration
was necessary, thus, the “nothing” option was inappropriate. Since the defendant was
opposed to being given some incarceration, some probation, he requested the “all” option,
which meant a complete denial of probation. W e feel it is appropriate for this court to
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION FILED April 1, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9705-CR-00193 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, KEITH A. JACKSON, ) JUDGE ) Appellee. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES E. WALDMAN JOHN KNOX WALKUP 147 Jefferson Ave. Attorney General & Reporter Suite 1102 Memphis, TN 38103 GEORGIA BLYTHE FELNER Counsel for the State John Sevier Building 425 Fifth Ave. North Nashville, TN 37243-0493
JOHN W. PIEROTTI District Attorney General
LEE COFFEE Asst. District Attorney General 201 Poplar, Suite 301 Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY, Judge OPINION
The defendant was indicted in January 1996 on charges of possession with
intent to sell an amount of marijuana in excess of ten pounds and possession with intent
to deliver marijuana in the same amount. On November 18, 1996, he pled guilty to
possession with intent to sell an amount of marijuana under ten pounds, a Class E felony.
After a hearing, he was sentenced to one year in the county workhouse and was fined
twenty-five hundred ($2,500) dollars.
In this appeal as of right, the defendant argues that the trial court erred in
denying his request for full probation. After a review of the record and applicable law, we
find no error and affirm the judgment of the court below.
In August 1995, the defendant was arrested in Memphis after he was
found transporting more than ten pounds of marijuana. At the sentencing hearing, he
testified that a friend had asked him to take the marijuana by bus from Dallas, Texas, to
Cincinnati, Ohio, and he had agreed. He explained to the court that at the time he had
been at a “very weak point in [his] life” and had made a bad decision. He testified that
this incident was the first and last time he had ever agreed to participate in such a
transaction.
The defendant, who lives in Dallas, was twenty-seven years old at the time
of his sentencing hearing. He had spent five years in the army, had served in Operation
Desert Shield, and had received the Army Achievement Medal. He testified that after
leaving the army, he had a difficult time both personally and financially. He explained that
he had been very upset when his wife left him and took his children. His financial
problems grew when he had to support his ailing mother and his younger brother who
2 was still in high school. On cross-examination, he admitted that his wife had left in
November of 1993, nearly two years before his arrest. However, he did not obtain a
divorce until April 1996.
The defendant testified that after leaving the army, he enrolled at the Art
Institute of Dallas and financed his schooling though the G.I. Bill. It was at the school
where he met Allen Banberry, the man who asked him to transport the marijuana. He
testified that Banberry offered to pay him eighteen hundred dollars ($1,800) for making
the trip. Because he was in school and had little money, the defendant agreed to
Banberry’s offer.
Since his arrest, the defendant has earned an associate’s degree in music
and video business and is employed by PDF Productions doing free-lance videography
work. He also hosts and directs a television show in Dallas. Prior to this arrest, the
defendant had no history of a previous criminal record or criminal behavior.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A.
§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “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).
In determining the specific sentence and the possible combination of
sentencing alternatives, the court shall consider the following: (1) any evidence from the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
3 and the arguments concerning sentencing alternatives, (4) the nature and characteristics
of the offense, (5) information offered by the State or the defendant concerning
enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the
defendant’s statements in his or her own behalf concerning sentencing. T.C.A.
§ 40-35-210(b). In addition, the legislature established certain sentencing principles
which include the following:
(5) In recognition that state prison capacities and the funds to build and maintain them are limited, 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 at rehabilitation shall be given first priority regarding sentencing involving incarceration; and
(6) A defendant who does not fall within the parameters of subdivision (5) and is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.
T.C.A. § 40-35-102.
After reviewing the statutes set out above, it is obvious that the intent of the
legislature is to encourage alternatives to incarceration in cases where defendants are
sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,
it is also clear that there is an intent to incarcerate those defendants whose criminal
histories indicate a clear disregard for the laws and morals of society and a failure of past
efforts to rehabilitate.
The defendant now appeals and argues that he should have been granted
full probation. The State argues that the defendant has no grounds for appeal because
the defendant asked that his petition be denied. Apparently, the trial judge originally
planned to sentence the defendant to 120 days with the remainder of the sentence to be
served on probation. When defense counsel heard 120 days, he told the court that he
4 thought the defendant would actually serve less time if the trial court denied the defendant
any probation and sentenced him to a full year. The trial judge said he was not convinced
that the defendant would serve less time but that he would follow the defendant’s request.
As a result, the petition for probation was denied and the defendant was ordered to serve
his sentence in the county workhouse.
The State argues that the defendant cannot appeal when it was his request
that the petition be denied. We do not agree. The defendant took the “all or nothing”
approach to the probation question. The trial judge felt that some period of incarceration
was necessary, thus, the “nothing” option was inappropriate. Since the defendant was
opposed to being given some incarceration, some probation, he requested the “all” option,
which meant a complete denial of probation. W e feel it is appropriate for this court to
review the trial court’s determination that this defendant was not a suitable candidate for
full probation.
In sentencing the defendant, the trial judge stated that he felt the defendant
had attempted to “pull the wool over the Court’s eyes in that . . . it was your wife, grief for
your wife leaving you and all of that that caused you to do this. That’s not so truthful.”
The court based this statement on the fact that the offense occurred in August of 1995,
and the defendant’s wife had left him in November of 1993. The court was also reluctant
to believe the defendant’s story that the trip on which he had been arrested was his first.
In fact, the trial judge stated, “[t]he Court doesn’t believe this is your first time.” The trial
judge related that nearly every defendant came into his courtroom with the same story.
The trial judge also expressed concern that if he were to allow the defendant
to serve his entire sentence on probation, the court would be sending a signal that
Tennessee is “light” on those who commit this type of drug offense. He further told the
5 defendant, “I don’t think you would benefit by [probation] because you need to know that
there’s going to be punishment. Because see, money will make you do a lot of things and
money blinds you. And if you think you’re getting away with this without any punishment
then you may continue doing this.”
The trial judge also noted that to grant the defendant’s request would
depreciate the seriousness of the offense. Thus, the judge announced a 120 days
sentence with the remainder suspended. However, as noted above, the judgment was
modified to reflect a denial of any probation.
Probation is a privilege that may be granted to a defendant deemed “eligible
and worthy of this largesse of the law.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990). The defendant must carry the burden of establishing that he is entitled to this
privilege. Dykes, 803 S.W.2d at 259. In that case, a panel of this Court determined that
a denial of probation was proper based on the fact that the trial court found the defendant
untruthful and on the need for deterrence. Dykes, 803 S.W .2d at 259-60. Generally,
when deterrence is used to deny alternative sentencing, evidence in the record must
illustrate the need to deter others from committing the offense. See State v. Bonestel,
871 S.W.2d 163, 168-69 (Tenn. Crim. App. 1993). However, in Dykes, this Court held
that the sale or use of narcotics is "deterrable per se," even absent a record
demonstrating a need for deterrence. 803 S.W.2d at 260. Following the Dykes rationale,
we find that the trial court correctly denied the defendant’s request for full probation based
on the defendant’s untruthfulness and the need for deterrence.
Therefore, we affirm the judgment of the court below.
_______________________________ JOHN H. PEAY, Judge
6 CONCUR:
_______________________________ JOSEPH B. JONES, Judge
_______________________________ THOMAS T. WOODALL, Judge