IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED SEPTEMBER 1998 SESSION October 21, 1998
Cecil W. Crowson STATE OF TENNESSEE, * Appellate Court Clerk C.C.A. # 01C01-9708-CR-00355
Appellee, * WILSON COUNTY
VS. * Hon. J. O. Bond, Judge
LISA DIANE MURPHY, * (Solicitation to Commit First Degree Murder) Appellant. *
For Appellant: For Appellee:
Comer L. Donnell John Knox Walkup District Public Defender Attorney General & Reporter
Howard L. Chambers Janis L. Turner Assistant Public Defender Assistant Attorney General 213 North Cumberland Street 425 Fifth Avenue North P.O. Box 888 Nashville, TN 37243-0493 Lebanon, TN 37087 Robert Hibbett Assistant District Attorney General 111 Cherry Street Lebanon, TN 37087
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Lisa Diane Murphy, pled guilty to solicitation to commit
first degree murder. As part of a plea agreement, the trial court imposed a Range I,
ten-year sentence. The defendant appeals because the trial court denied an
alternative sentence in the Community Corrections program.
We affirm the judgment of the trial court.
On May 4, 1995, the seventeen-year-old defendant gave birth to a
son. She delivered the baby at her boyfriend's parents' trailer without any medical
assistance. After the baby was born, the defendant's boyfriend, William Stockwell,
who was the father, buried the infant near a barn. The defendant, who had
previously agreed to dispose of the child so that no one would discover she had
been pregnant, later claimed that she had changed her mind during labor and asked
to be taken to the hospital. Stockwell was convicted of first-degree murder and
received a life sentence. The defendant testified as a witness for the state.
At the sentencing hearing, Dr. Jeri Lee testified that he had examined
the defendant about two weeks after she had given birth. He found that she
suffered from post traumatic stress disorder (P.T.S.D.), which resulted from the
trauma associated with unattended childbirth and the death of the victim. He
described the symptoms of P.T.S.D. as distress and depression. Dr. Lee also
determined the defendant suffered from dependent personality disorder, the primary
symptom of which is "chronic and severe problem[s] making decisions." Individuals
who suffer from this disorder rely on other people to "make their decisions for them."
Dr. Lee testified that the defendant would be able to abide by the terms of an
alternative sentence and would not be a threat to society. It was his opinion that she
2 could benefit from counseling and would be a good candidate for treatment.
The defendant, who lived with her parents, was sixteen years old at
the time she became pregnant. Stockwell was twenty-two. Since the offense, she
had graduated from high school and had been seeking employment. The defendant
acknowledged that a condition of her pre-trial release was that she disassociate
herself from Stockwell. Despite that promise, however, she had married Stockwell
and had given birth to their second child. At the time of sentencing, a divorce was
pending. Her parents were to get custody of her son in the event of a Department of
Correction sentence.
John Johnson, principal at Watertown High School, described the
defendant as an excellent student and stated that she did not present any discipline
problems. Judy Murphy, the defendant's mother, testified that the defendant could
continue to live with her. She and the defendant's father agreed to help the
defendant meet the terms of an alternative sentence.
The trial court made the following ruling:
I don't believe community corrections applies on anything over eight years, ... The law is very clear in 40-35-303 to this Court when it says probation, the defendant shall be eligible for probation under the provisions of this chapter if the sentence actually imposed upon such defendant is eight years or less. ... [T]he Court doesn't believe it's available. ... I don't have any alternative, I don't believe, under the law as it's written but to let this lady go to prison for ten years.
The defendant argues that the trial court erred by concluding that, as a matter of
law, she could not serve her sentence on Community Corrections.
When a challenge is made to the length, range, or manner of service
3 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 court from which the appeal is
taken are correct." Tenn. Code Ann. § 40-35-401(d). The 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 her own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210.
Among the factors applicable to alternative sentencing consideration
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 (Tenn. 1978). The
purpose of the Community Corrections Act of 1985 was to provide an alternative
means of punishment for "selected, nonviolent felony offenders in front-end
community based alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The
Community Corrections sentence provides a desired degree of flexibility that may be
both beneficial to the defendant and serve legitimate societal aims. State v. Griffith,
787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum
requirements of the Community Corrections Act of 1985, however, does not mean
that she is entitled to be sentenced under the act as a matter of law or right. State
v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are
eligible for Community Corrections:
4 (1) Persons who, without this option, would be incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or drug/alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, chapter 2 [repealed], parts 1-3 and 5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony offenses;
(4) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved;
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED SEPTEMBER 1998 SESSION October 21, 1998
Cecil W. Crowson STATE OF TENNESSEE, * Appellate Court Clerk C.C.A. # 01C01-9708-CR-00355
Appellee, * WILSON COUNTY
VS. * Hon. J. O. Bond, Judge
LISA DIANE MURPHY, * (Solicitation to Commit First Degree Murder) Appellant. *
For Appellant: For Appellee:
Comer L. Donnell John Knox Walkup District Public Defender Attorney General & Reporter
Howard L. Chambers Janis L. Turner Assistant Public Defender Assistant Attorney General 213 North Cumberland Street 425 Fifth Avenue North P.O. Box 888 Nashville, TN 37243-0493 Lebanon, TN 37087 Robert Hibbett Assistant District Attorney General 111 Cherry Street Lebanon, TN 37087
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Lisa Diane Murphy, pled guilty to solicitation to commit
first degree murder. As part of a plea agreement, the trial court imposed a Range I,
ten-year sentence. The defendant appeals because the trial court denied an
alternative sentence in the Community Corrections program.
We affirm the judgment of the trial court.
On May 4, 1995, the seventeen-year-old defendant gave birth to a
son. She delivered the baby at her boyfriend's parents' trailer without any medical
assistance. After the baby was born, the defendant's boyfriend, William Stockwell,
who was the father, buried the infant near a barn. The defendant, who had
previously agreed to dispose of the child so that no one would discover she had
been pregnant, later claimed that she had changed her mind during labor and asked
to be taken to the hospital. Stockwell was convicted of first-degree murder and
received a life sentence. The defendant testified as a witness for the state.
At the sentencing hearing, Dr. Jeri Lee testified that he had examined
the defendant about two weeks after she had given birth. He found that she
suffered from post traumatic stress disorder (P.T.S.D.), which resulted from the
trauma associated with unattended childbirth and the death of the victim. He
described the symptoms of P.T.S.D. as distress and depression. Dr. Lee also
determined the defendant suffered from dependent personality disorder, the primary
symptom of which is "chronic and severe problem[s] making decisions." Individuals
who suffer from this disorder rely on other people to "make their decisions for them."
Dr. Lee testified that the defendant would be able to abide by the terms of an
alternative sentence and would not be a threat to society. It was his opinion that she
2 could benefit from counseling and would be a good candidate for treatment.
The defendant, who lived with her parents, was sixteen years old at
the time she became pregnant. Stockwell was twenty-two. Since the offense, she
had graduated from high school and had been seeking employment. The defendant
acknowledged that a condition of her pre-trial release was that she disassociate
herself from Stockwell. Despite that promise, however, she had married Stockwell
and had given birth to their second child. At the time of sentencing, a divorce was
pending. Her parents were to get custody of her son in the event of a Department of
Correction sentence.
John Johnson, principal at Watertown High School, described the
defendant as an excellent student and stated that she did not present any discipline
problems. Judy Murphy, the defendant's mother, testified that the defendant could
continue to live with her. She and the defendant's father agreed to help the
defendant meet the terms of an alternative sentence.
The trial court made the following ruling:
I don't believe community corrections applies on anything over eight years, ... The law is very clear in 40-35-303 to this Court when it says probation, the defendant shall be eligible for probation under the provisions of this chapter if the sentence actually imposed upon such defendant is eight years or less. ... [T]he Court doesn't believe it's available. ... I don't have any alternative, I don't believe, under the law as it's written but to let this lady go to prison for ten years.
The defendant argues that the trial court erred by concluding that, as a matter of
law, she could not serve her sentence on Community Corrections.
When a challenge is made to the length, range, or manner of service
3 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 court from which the appeal is
taken are correct." Tenn. Code Ann. § 40-35-401(d). The 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 her own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210.
Among the factors applicable to alternative sentencing consideration
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 (Tenn. 1978). The
purpose of the Community Corrections Act of 1985 was to provide an alternative
means of punishment for "selected, nonviolent felony offenders in front-end
community based alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The
Community Corrections sentence provides a desired degree of flexibility that may be
both beneficial to the defendant and serve legitimate societal aims. State v. Griffith,
787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum
requirements of the Community Corrections Act of 1985, however, does not mean
that she is entitled to be sentenced under the act as a matter of law or right. State
v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are
eligible for Community Corrections:
4 (1) Persons who, without this option, would be incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or drug/alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, chapter 2 [repealed], parts 1-3 and 5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony offenses;
(4) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved;
(5) Persons who do not demonstrate a present or past pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of committing violent offenses; and
(7) Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
Although one must receive a sentence of eight years or less to be
eligible for probation, a defendant who is sentenced under subpart (a) of Tenn.
Code Ann. § 40-36-106 is eligible for Community Corrections regardless of the
length of the sentence. "Neither the Act nor any other statute makes the length of
the accused's sentence a criteria for eligibility" under subpart (a). State v. Lanny
Crowe, No. 01C01-9503-CC-00064, slip op. at 2 (Tenn. Crim. App., at Nashville,
July 6, 1995).
The defendant, however, is not eligible for Community Corrections
under subpart (a) because section (a)(3) excludes individuals convicted of crimes
against the person. Tenn. Code Ann. § 40-36-106(a)(3). This court has previously
held that solicitation to commit murder is a crime against the person. State v.
James Kenneth Spry, No. 01C01-9409-CC-00309, slip op. at 7 (Tenn. Crim. App., at
5 Nashville, June 15, 1995). A defendant ineligible for Community Corrections under
subpart (a) may, however, be eligible under subpart (c), which creates a "special
needs" category of eligibility:
Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of chronic alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the community under the provisions of this chapter.
Tenn. Code Ann. § 40-36-106(c) (emphasis added).
Under our law, a defendant convicted of solicitation of first degree
murder could arguably be eligible for Community Corrections, if she can show
eligibility under the "special needs" category. In State v. Staten, 787 S.W.2d 934,
936 (Tenn. Crim. App. 1989), however, this court ruled that to be sentenced under
the "special needs" provision, the defendant must otherwise be eligible for
probation. While subpart (a) does not require eligibility for probation, subpart (c)
does. Id. This defendant is not eligible for probation because she received a ten-
year sentence. Eligibility for probation depends on the sentence being "eight (8)
years or less." Tenn. Code Ann. § 40-35-303(a). The trial court correctly ruled that
a sentence to Community Corrections was proscribed by law.
Accordingly, the judgment of the trial court is affirmed.
__________________________________ Gary R. Wade, Presiding Judge
6 CONCUR:
________________________________ Thomas T. W oodall, Judge
________________________________ Curwood Witt, Judge