IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION FILED STATE OF TENNESSEE, * C.C.A. # 02C01-9809-CC-00273
Appellee, * DYER COUNTY June 18, 1999 VS. * Hon. R. Lee Moore, Jr., Judge
MILDRED MICHELLE MAUPIN, * (Aggravated Criminal Trespass) Cecil Crowson, Jr. Appellant. * Appellate Court Clerk
For Appellant: For Appellee:
C. Michael Robbins, Attorney John Knox Walkup 46 North Third Street Attorney General and Reporter Suite 719 Memphis, TN 38103 Patricia C. Kussmann (on appeal) Assistant Attorney General Criminal Justice Division G. Steven Davis 425 Fifth Avenue North District Public Defender Nashville, TN 37243 208 North Mill Avenue P.O. Box 742 C. Phillip Bivens Dyersburg, TN 38025-0742 District Attorney General (at trial) 115 East Market Street, P.O. Box 2005 Dyersburg, TN 38025-2005
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Mildred Michelle Maupin, entered a plea of guilt to
aggravated criminal trespass. Tenn. Code Ann. § 39-14-406. The trial court
imposed a sentence of eleven months and twenty-nine days and suspended all but
one hundred twenty days. In this appeal of right, the defendant complains that the
sentence was excessive.
We find no error and affirm the judgment of the trial court.
In 1997, Earl Gatlin and wife, Ruby Gatlin, resided at 1501
Countryman Street in Dyersburg. At that time, Ms. Gatlin was an invalid, confined to
a wheelchair, and required constant care. She had been prescribed medication for
her pain and kept her prescription bottle at the residence. The defendant, who was
not acquainted with the Gatlins, had nonetheless stopped at their residence on at
least one occasion and asked to use their restroom. Before her departure, the
defendant talked briefly with Mr. Gatlin in the kitchen, where the prescribed
medication was stored. Afterwards, the Gatlins discovered that the bottle containing
pain medication for Ms. Gatlin was empty and all of the pills were missing. Because
the defendant had been their only visitor during the course of the day, the Gatlins
suspected that she had stolen the pills.
On November 6, 1997, Lee Crytes, a drug dealer from whom the
defendant had obtained drugs on prior occasions, drove her to the Gatlins'
residence. When she arrived, she met the Gatlins' daughter, Beverly Fowlkes, who
apparently recognized her because of the earlier incident. Ms. Fowlkes ordered her
to leave and threatened to swear a warrant for her arrest. Later, after her arrest and
indictment, the defendant entered a plea to aggravated criminal trespassing for
2 entering the habitation of the Gatlins on November 6, 1997, without their consent,
and recklessly causing them to fear for their safety.
At the sentencing hearing, the defendant maintained that she had
returned to the residence only because she had heard that the Gatlins had a car for
sale. Mr. Gatlin, who owned a van and pickup truck, did not own a car at that time.
The defendant admitted that she had been convicted in March of 1988 for
attempting to obtain a controlled substance by fraud and grand theft. She also
acknowledged that she had resumed the use of drugs for some four years prior to
her arrest in November of 1997.
The record establishes that the defendant has a history of drug abuse
and had participated in a drug rehabilitation program several years ago. In
November 1997, shortly after this offense, the defendant entered another treatment
program for an addiction to drugs.
The trial court found as a single mitigating circumstance that the
defendant did not cause or threaten bodily harm. See Tenn. Code Ann. § 40-35-
113(1). The trial court also found three enhancement factors: prior history of
criminal conduct on the part of the defendant, particularly vulnerable victims due to
their age and disability, and the defendant's desire for gratification by her abuse of
drugs. See Tenn. Code Ann. § 40-35-114(1), (4), and (7). Because the trial court
concluded that the two suspended three-year sentences in 1988 had not been
successful, it ordered service of one hundred twenty days of the eleven month,
twenty-nine day sentence.
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).
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 or her 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).
In misdemeanor sentencing, a separate sentencing hearing is not
mandatory but the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. Tenn. Code
Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance
with the principles, purposes, and goals of the Criminal Sentencing Reform Act of
1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902
S.W.2d 391, 393 (Tenn. 1995). See State v. Troutman, 979 S.W.2d 271, 274
(Tenn. 1998). The misdemeanor offender must be sentenced to an authorized
determinant sentence with a percentage of that sentence designated for eligibility for
rehabilitative programs. Generally, a percentage of not greater than 75% of the
sentence should be fixed for a misdemeanor offender; however, a DUI offender may
be required to serve the full 100% of his sentence. Palmer, 902 S.W.2d at 393-94.
In determining the percentage of the sentence, the court must consider
enhancement and mitigating factors as well as the legislative purposes and
principles related to sentencing. Id.
4 Upon service of that percentage, the administrative agency governing
the rehabilitative programs determines which among the lawful programs available is
appropriate. The trial court retains the authority to place the defendant on probation
either immediately or after a term of periodic or continuous confinement. Tenn.
Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION FILED STATE OF TENNESSEE, * C.C.A. # 02C01-9809-CC-00273
Appellee, * DYER COUNTY June 18, 1999 VS. * Hon. R. Lee Moore, Jr., Judge
MILDRED MICHELLE MAUPIN, * (Aggravated Criminal Trespass) Cecil Crowson, Jr. Appellant. * Appellate Court Clerk
For Appellant: For Appellee:
C. Michael Robbins, Attorney John Knox Walkup 46 North Third Street Attorney General and Reporter Suite 719 Memphis, TN 38103 Patricia C. Kussmann (on appeal) Assistant Attorney General Criminal Justice Division G. Steven Davis 425 Fifth Avenue North District Public Defender Nashville, TN 37243 208 North Mill Avenue P.O. Box 742 C. Phillip Bivens Dyersburg, TN 38025-0742 District Attorney General (at trial) 115 East Market Street, P.O. Box 2005 Dyersburg, TN 38025-2005
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Mildred Michelle Maupin, entered a plea of guilt to
aggravated criminal trespass. Tenn. Code Ann. § 39-14-406. The trial court
imposed a sentence of eleven months and twenty-nine days and suspended all but
one hundred twenty days. In this appeal of right, the defendant complains that the
sentence was excessive.
We find no error and affirm the judgment of the trial court.
In 1997, Earl Gatlin and wife, Ruby Gatlin, resided at 1501
Countryman Street in Dyersburg. At that time, Ms. Gatlin was an invalid, confined to
a wheelchair, and required constant care. She had been prescribed medication for
her pain and kept her prescription bottle at the residence. The defendant, who was
not acquainted with the Gatlins, had nonetheless stopped at their residence on at
least one occasion and asked to use their restroom. Before her departure, the
defendant talked briefly with Mr. Gatlin in the kitchen, where the prescribed
medication was stored. Afterwards, the Gatlins discovered that the bottle containing
pain medication for Ms. Gatlin was empty and all of the pills were missing. Because
the defendant had been their only visitor during the course of the day, the Gatlins
suspected that she had stolen the pills.
On November 6, 1997, Lee Crytes, a drug dealer from whom the
defendant had obtained drugs on prior occasions, drove her to the Gatlins'
residence. When she arrived, she met the Gatlins' daughter, Beverly Fowlkes, who
apparently recognized her because of the earlier incident. Ms. Fowlkes ordered her
to leave and threatened to swear a warrant for her arrest. Later, after her arrest and
indictment, the defendant entered a plea to aggravated criminal trespassing for
2 entering the habitation of the Gatlins on November 6, 1997, without their consent,
and recklessly causing them to fear for their safety.
At the sentencing hearing, the defendant maintained that she had
returned to the residence only because she had heard that the Gatlins had a car for
sale. Mr. Gatlin, who owned a van and pickup truck, did not own a car at that time.
The defendant admitted that she had been convicted in March of 1988 for
attempting to obtain a controlled substance by fraud and grand theft. She also
acknowledged that she had resumed the use of drugs for some four years prior to
her arrest in November of 1997.
The record establishes that the defendant has a history of drug abuse
and had participated in a drug rehabilitation program several years ago. In
November 1997, shortly after this offense, the defendant entered another treatment
program for an addiction to drugs.
The trial court found as a single mitigating circumstance that the
defendant did not cause or threaten bodily harm. See Tenn. Code Ann. § 40-35-
113(1). The trial court also found three enhancement factors: prior history of
criminal conduct on the part of the defendant, particularly vulnerable victims due to
their age and disability, and the defendant's desire for gratification by her abuse of
drugs. See Tenn. Code Ann. § 40-35-114(1), (4), and (7). Because the trial court
concluded that the two suspended three-year sentences in 1988 had not been
successful, it ordered service of one hundred twenty days of the eleven month,
twenty-nine day sentence.
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).
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 or her 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).
In misdemeanor sentencing, a separate sentencing hearing is not
mandatory but the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. Tenn. Code
Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance
with the principles, purposes, and goals of the Criminal Sentencing Reform Act of
1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902
S.W.2d 391, 393 (Tenn. 1995). See State v. Troutman, 979 S.W.2d 271, 274
(Tenn. 1998). The misdemeanor offender must be sentenced to an authorized
determinant sentence with a percentage of that sentence designated for eligibility for
rehabilitative programs. Generally, a percentage of not greater than 75% of the
sentence should be fixed for a misdemeanor offender; however, a DUI offender may
be required to serve the full 100% of his sentence. Palmer, 902 S.W.2d at 393-94.
In determining the percentage of the sentence, the court must consider
enhancement and mitigating factors as well as the legislative purposes and
principles related to sentencing. Id.
4 Upon service of that percentage, the administrative agency governing
the rehabilitative programs determines which among the lawful programs available is
appropriate. The trial court retains the authority to place the defendant on probation
either immediately or after a term of periodic or continuous confinement. Tenn.
Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider
public or private agencies for probation supervision prior to directing supervision by
the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing
statute is designed to provide the trial court with continuing jurisdiction in
misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the
felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,
885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).
The defendant argues that because there was no proof that she had
actually stolen the prescription in the first instance, the trial court should not have
concluded that the offense was committed to gratify the defendant's desire for
pleasure or excitement. Tenn. Code Ann. § 40-35-114(7). The defendant
complains that the state has failed to meet its burden of proof under State v. Adams,
864 S.W.2d 31 (Tenn. 1993).
Even if the application of that single enhancement factor constituted
error, however, it is our view that the prior criminal conduct of the defendant would,
standing alone, warrant the imposition of the maximum term. Moreover, there was
ample proof that the Gatlins were particularly vulnerable due to their age and
physical condition. Because of the defendant's history of drug abuse and the failure
of less restrictive measures to achieve rehabilitation, the sentence of incarceration is
not, in our view, excessive.
5 Accordingly, the judgment is affirmed.
________________________________ Gary R. Wade, Presiding Judge
CONCUR:
_____________________________ Joseph M. Tipton, Judge
_____________________________ Thomas T. Woodall, Judge