State v. Tina Earls

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9901-CC-00025
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED December 2, 1999 NOVEMBER 1999 SESSION Cecil CROWS ON, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9901-CC-00025 ) ) Blount County v. ) ) Honorable D. Kelly Thomas, Jr., Judge ) TINA EARLS, ) (Theft of property valued under five-hundred ) dollars) Appellant. )

For the Appellant: For the Appellee: Shawn Graham Paul G. Summers Office of the Public Defender Attorney General of Tennessee 419 High Street and Maryville, Tennessee 37804 Clinton J. Morgan (AT TRIAL) Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Gerald L. Gulley, Jr. Post Office Box 1708 Michael L. Flynn Knoxville, TN 37901-1708 District Attorney General (ON APPEAL) and Kirk E. Andrews Assistant District Attorney General 363 Court Street Maryville, TN 37804

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge

OPINION The defendant, Tina Earls, 1 appeals as of right from her conviction following a guilty plea in the Blount County Criminal Court for theft of property valued

under five-hundred dollars, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and twenty-nine days in the Blount County Jail, with

probation eligibility after serving fifty percent of the sentence. The defendant contends

that the trial court should have been sentenced her to full probation or to community corrections. We affirm the judgment of the trial court.

At the sentencing hearing, the twenty-nine-year-old defendant testified that she had been addicted to cocaine for nine years and that she routinely shoplifted

merchandise to sell for cocaine money. She testified that she did not work but received

disability benefits because of her nerves. She stated that she has two children, ages eight and ten, and that she did not use drugs in front of her children. She testified that

she attended various drug treatment programs but was unable to complete them

because of problems with her insurance and lack of transportation. She testified that

she wanted to complete a treatment program but admitted that the temptation of drugs

remained strong.

A presentence report was admitted into evidence. The report reflects that

the defendant has five previous theft convictions dating from 1995, two petit larceny convictions from 1989, and one shoplifting conviction from 1989. The defendant

reported using alcohol beginning at age fourteen but reported that she had stopped

drinking alcohol after attending treatment in September 1998.

Appellate review of misdemeanor sentencing is de novo on the record

with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d), -402(d). As the Sentencing Commission Comments to Tenn. Code Ann.

§ 40-35-401(d) note, the burden is now on the appealing party to show that the

sentence is improper. We note that the law provides no presumptive minimum for

misdemeanor sentencing. See, e.g., State v. Creasy, 885 S.W.2d 829, 832 (Tenn.

1 The record also refers to the defendant as “Tina Brown” and “Tina Earls Brown”. We refer to the defendant as Tina Earls in this opinion because that is the name on the indictment, and nothing indicates that the indictment was amended.

2 Crim. App. 1994). However, in misdemeanor sentencing, the trial court must consider

the purposes and principles of the Criminal Sentencing Reform Act of 1989. Tenn.

Code Ann. § 40-35-302(d).

Upon a review of the record, we believe that the trial court complied with

the sentencing statutes. See State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998)

(stating that “while the better practice is to make findings on the record when fixing a

percentage of a defendant’s sentence to be served in incarceration, a trial court need

only consider the principles of sentencing and enhancement and mitigating factors in order to comply with the legislative mandates of the misdemeanor sentencing statute”).

The defendant’s lengthy criminal history more than justifies the defendant’s sentence

and the manner in which it is served. See Tenn. Code Ann. § 40-35-103(1)(A).

Moreover, although the defendant claims a desire for rehabilitation, she has been

unable to attend any treatment programs successfully. The trial court told the

defendant that she should use her time in jail to formulate a plan for rehabilitation and

treatment upon release, stating that “I don’t want you back out roaming around on the

roads and falling back into that.” The trial court considered six months of confinement

appropriate for the defendant’s rehabilitation. See Tenn. Code Ann. § 40-35-104(5).

The defendant has failed to overcome the presumption of correctness attached to the

trial court’s sentence.

In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.

________________________________ Joseph M. Tipton, Judge

CONCUR:

___________________________ Jerry L. Smith, Judge

___________________________ Thomas T. W oodall, Judge