IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL SESSION, 1997 July 11, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9604-CC-00169 ) Appellee, ) ) ) CHEATHAM COUNTY VS. ) ) HON. ROBERT E. BURCH LUTCHER O. MILES and ) JUDGE AMBER DAWN MILES, ) ) Appellants. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF CHEATHAM COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL R. BARRETT, JR. JOHN KNOX W ALKUP W ashington Square Two-Suite 417 Attorney General and Reporter 222 Second Avenue, North Nashville, TN 37201 GEORGIA BLYTHE FELNER Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
DAN ALSOBROOKS District Attorney General
JAMES W. KIRBY Assistant District Attorney General 105 Sycamore Street Ashland City, TN 37015
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure. Pursuant to a plea agreement, each Defendant entered pleas of
guilty to six counts of selling various drugs. The plea agreement for each
Defendant called for an effective sentence of eight years in the Department of
Correction, with the manner of service of the sentence left to the discretion of the
trial court. The trial court ordered that each Defendant would serve one year in
the county workhouse, with the balance of the sentence to be served in the
com munity corrections program. On appeal, each Defendant argues that the trial
court erred in ordering that one year of the sentence be served in confinement.
W e affirm the judgment of the trial court.
The Defendants were jointly indicted for six counts of conspiring to sell and
selling cocaine, LSD and marijuana. Each Defendant was convicted on a plea
of guilty of one count of Class B felony sale of cocaine, two counts of Class B
felony sale of LSD, one count of Class C felony sale of cocaine, and two counts
of Class E felony sale of marijuana. Each Defendant received concurrent
sentences of eight years for each Class B felony conviction, four years for each
Class C felony conviction and one year for each Class E felony conviction. Also,
each Defendant was fined a total of $9,500. After conducting a sentencing
hearing, the trial judge ordered each Defendant to serve one year in the county
workhouse with the balance of the sentence to be served in community
corrections. Both Defendants were determined to be immediately eligible for
work release. On appeal, each Defendant argues that the trial court erred or
-2- abused his discretion in ordering one year of the sentence to be served in
confinement.
W hen an accused challenges the length, range, or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
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 circum stances." State v. Ashby, 823 S.W .2d
166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancem ent factors; (f) any statement
that the Defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
-3- A Defendant who “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.” Tenn.
Code Ann. § 40-35-102(6); see State v. Davis, 940 S.W .2d 558, 560 (Tenn.
1997). Our sentencing law also provides 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 at
rehabilitation, shall be given first priority regarding sentences involving
incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a Defendant sentenced
to eight years or less who is not an offender for whom incarceration is a priority
is presumed eligible for alternative sentencing unless sufficient evidence rebuts
the presumption. However, the act does not provide that all offenders who meet
the criteria are entitled to such relief; rather, it requires that sentencing issues be
determined by the facts and circumstances presented in each case. See State
v. Taylor, 744 S.W .2d 919, 922 (Tenn. Crim. App. 1987).
Additionally, the principles of sentencing reflect that the sentence should
be no greater than that deserved for the offense committed and should be the
least severe measure necessary to achieve the purposes for which the sentence
is imposed. Tenn. Code Ann. § 40-35-103(3)-(4). The Court should also
consider the potential for rehabilitation or treatment of the Defendant in
determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5).
The basic facts as gleaned from the sentencing hearing are that the
Defendant Amber Dawn Miles was employed at a pet store. Each of her drug
convictions and each conviction of her husband, Lutcher O. Miles, were the result
-4- of controlled sales of drugs made by the Defendants to Ms. Miles’ supervisor at
the pet store, who was serving as an undercover informant for local law
enforcement authorities. Amber Dawn Miles testified that her supervisor, the
informant, pressured her into obtaining the drugs for him and in exchange,
promised her additional working hours at the store. She and her husband
testified that these were the only drug sales they had ever made and that neither
of them profited from the sales but rather were doing them as a favor for Ms.
Miles’ supervisor at the pet store. The various sales took place during an
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL SESSION, 1997 July 11, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9604-CC-00169 ) Appellee, ) ) ) CHEATHAM COUNTY VS. ) ) HON. ROBERT E. BURCH LUTCHER O. MILES and ) JUDGE AMBER DAWN MILES, ) ) Appellants. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF CHEATHAM COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL R. BARRETT, JR. JOHN KNOX W ALKUP W ashington Square Two-Suite 417 Attorney General and Reporter 222 Second Avenue, North Nashville, TN 37201 GEORGIA BLYTHE FELNER Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
DAN ALSOBROOKS District Attorney General
JAMES W. KIRBY Assistant District Attorney General 105 Sycamore Street Ashland City, TN 37015
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure. Pursuant to a plea agreement, each Defendant entered pleas of
guilty to six counts of selling various drugs. The plea agreement for each
Defendant called for an effective sentence of eight years in the Department of
Correction, with the manner of service of the sentence left to the discretion of the
trial court. The trial court ordered that each Defendant would serve one year in
the county workhouse, with the balance of the sentence to be served in the
com munity corrections program. On appeal, each Defendant argues that the trial
court erred in ordering that one year of the sentence be served in confinement.
W e affirm the judgment of the trial court.
The Defendants were jointly indicted for six counts of conspiring to sell and
selling cocaine, LSD and marijuana. Each Defendant was convicted on a plea
of guilty of one count of Class B felony sale of cocaine, two counts of Class B
felony sale of LSD, one count of Class C felony sale of cocaine, and two counts
of Class E felony sale of marijuana. Each Defendant received concurrent
sentences of eight years for each Class B felony conviction, four years for each
Class C felony conviction and one year for each Class E felony conviction. Also,
each Defendant was fined a total of $9,500. After conducting a sentencing
hearing, the trial judge ordered each Defendant to serve one year in the county
workhouse with the balance of the sentence to be served in community
corrections. Both Defendants were determined to be immediately eligible for
work release. On appeal, each Defendant argues that the trial court erred or
-2- abused his discretion in ordering one year of the sentence to be served in
confinement.
W hen an accused challenges the length, range, or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
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 circum stances." State v. Ashby, 823 S.W .2d
166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancem ent factors; (f) any statement
that the Defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
-3- A Defendant who “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.” Tenn.
Code Ann. § 40-35-102(6); see State v. Davis, 940 S.W .2d 558, 560 (Tenn.
1997). Our sentencing law also provides 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 at
rehabilitation, shall be given first priority regarding sentences involving
incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a Defendant sentenced
to eight years or less who is not an offender for whom incarceration is a priority
is presumed eligible for alternative sentencing unless sufficient evidence rebuts
the presumption. However, the act does not provide that all offenders who meet
the criteria are entitled to such relief; rather, it requires that sentencing issues be
determined by the facts and circumstances presented in each case. See State
v. Taylor, 744 S.W .2d 919, 922 (Tenn. Crim. App. 1987).
Additionally, the principles of sentencing reflect that the sentence should
be no greater than that deserved for the offense committed and should be the
least severe measure necessary to achieve the purposes for which the sentence
is imposed. Tenn. Code Ann. § 40-35-103(3)-(4). The Court should also
consider the potential for rehabilitation or treatment of the Defendant in
determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5).
The basic facts as gleaned from the sentencing hearing are that the
Defendant Amber Dawn Miles was employed at a pet store. Each of her drug
convictions and each conviction of her husband, Lutcher O. Miles, were the result
-4- of controlled sales of drugs made by the Defendants to Ms. Miles’ supervisor at
the pet store, who was serving as an undercover informant for local law
enforcement authorities. Amber Dawn Miles testified that her supervisor, the
informant, pressured her into obtaining the drugs for him and in exchange,
promised her additional working hours at the store. She and her husband
testified that these were the only drug sales they had ever made and that neither
of them profited from the sales but rather were doing them as a favor for Ms.
Miles’ supervisor at the pet store. The various sales took place during an
approximate six week period of time.
The presentence report reflects that Lutcher Miles was twenty-two years
old, dropped out of school in the ninth grade, and later earned his GED. His
employment history was apparently good and he had no prior criminal record of
convictions, although he reported that he had been a user of marijuana.
The presentence reports reflects that Amber Dawn Miles was twenty-one
years old, dropped out of school in the eleventh grade, and later earned her
GED. Her employment record was apparently good. She had been arrested on
more than one occasion for shoplifting and had one conviction which resulted in
com munity service work and six months probation. She was serving this
sentence on probation when the drug offenses occurred.
Both Defendants expressed remorse for what they had done, had good
family support and employment opportunities in a family drywall business. The
trial judge noted that he was not sure that the Defendants understood the “deadly
seriousness of their actions.”
-5- Because each Defendant was convicted of a Class B felony, neither
Defendant enjoyed the presumption of being a favorable candidate for alternative
sentencing options. See Tenn. Code Ann. § 40-35-102(6). Nevertheless, the
trial judge determined that confinement in the penitentiary was not warranted. In
ordering a period of confinement in the county jail, the trial judge considered the
number of offenses committed, the time frame during which they were committed,
the variety and type of drugs sold, the need for deterrence and the need to avoid
depreciating the seriousness of the offenses.
W e note that this record affirmatively shows that the trial court considered
the sentencing principles and all relevant facts and circumstances. As we have
previously noted, it is our duty to presume that the sentencing determinations
made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). W e
are unable to conclude that the trial judge erred or abused his discretion.
The judgment of the trial court is affirmed.
___________________________________ DAVID H. WELLES, JUDGE
-6- CONCUR:
___________________________________ GARY R. WADE, JUDGE
___________________________________ CURWOOD W ITT, JUDGE
-7-