IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MARCH 1999 SESSION July 19, 1999
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, * C.C.A. # 01C01-9804-CR-00183
Appellee, * DAVIDSON COUNTY
VS. * Honorable Seth Norman, Judge
TOMMY EDWARD SMITH, * (Delivery of Controlled Substance)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
SAM WALLACE, SR. JOHN KNOX WALKUP 227 Second Avenue N. Attorney General & Reporter Nashville, TN 37201 GEORGIA BLYTHE FELNER Counsel for the State 425 Fifth Avenue North Nashville, TN 37243-0493
VICTOR S. (TORRY) JOHNSON III District Attorney General
JOHN C. ZIMMERMAN Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue N. Nashville, TN 37201-1649
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS, Judge OPINION
The defendant, Tommy Edward Smith, pleaded guilty to three deliveries of
cocaine, a Schedule II substance. He twice delivered .5 or more grams of
cocaine, and the remaining delivery involved twenty-six or more grams of
cocaine. Each violation constituted a separate Class B felony. The Davidson
County Criminal Court sentenced the defendant as a Range I offender to three
concurrent eight-year sentences in the Tennessee Department of Correction
(TDOC). The defendant appeals, asserting that the trial court erroneously
denied him Community Corrections. We AFFIRM the trial court’s judgment.
BACKGROUND
The submitted record includes a transcript, which comprises testimony of
the defendant and two witnesses, testimony of a codefendant sentenced at the
same hearing, and the trial court’s findings.
The first witness, Latonya Flenoy, testified that she was the defendant’s
girlfriend. According to Flenoy, the defendant had no regular employer.
However, various persons would call him for “handyman” jobs, and she claimed
that he worked approximately thirty hours per week on these jobs.
The defendant’s mother, Christine Denise Williams, essentially testified
that she would help her son succeed in Community Corrections. Williams is a
Director of Operations with Shoney’s Inc. and promised to help her son obtain a
job. She candidly stated that she would not support him if he continued pursuing
criminal activities. She would, however, devote herself to helping the defendant
with the consequences of his current convictions.
The defendant guaranteed his compliance with any restrictions imposed
under a Community Corrections sentence. On cross-examination, when asked
-2- the name of his cocaine source, the defendant replied, “Well, see, I didn’t know
his name.” His counsel obtained a brief recess, conferred with his defendant,
and cross-examination resumed.
The state pursued the source’s identity, and the defendant asserted that
his source, Gary Douglas, had died. The defendant’s further testimony on this
point was not enlightening. The defendant had only known Douglas “a couple of
months,” yet Douglas would advance him at least one and one-half ounces of
cocaine. The defendant first testified that he did not know Douglas’s
accomplices and never saw him with other people. However, the defendant
subsequently described a busy nightclub scene where he apparently met and
assumedly cultivated some relationship with Douglas. The defendant vaguely
described the mechanics of the interaction: They were “all in the club . . .
mingling and talking.”
In short, the defendant claimed a paucity of knowledge regarding
Douglas’s business, stating that he “didn’t know much about it” and “didn’t know
much about [Douglas].” Ignorant as to Douglas’s residence, the defendant had
contacted him through a pager number.
Regarding the defendant’s relationship with codefendant Beverly D. Ray,
the defendant testified that he provided drugs “[m]aybe two - maybe two or three
times” to Ray before the three transactions leading to his convictions.
During the final and largest transaction, two male subjects in a vehicle
followed the defendant from one location to another, apparently conducting
countersurveillance. The defendant noticed the subjects “riding around in the
area” but denied any further knowledge of them.
-3- After the defendant testified, the trial court commented that the defendant
was covering for accomplices and protecting involved parties, including the
apparent countersurveillance. The trial court could not anticipate a “straight
answer” from the defendant.
The record comprises codefendant Beverly D. Ray’s sentencing hearing
testimony. She testified that she not only obtained the drugs for the three sales
from the defendant but also had obtained drugs for her personal use prior to the
transactions. Before these transactions, she had seen the defendant with drugs
and knew he was a dealer. According to Ray, the defendant could have
provided the two ounces of cocaine she originally anticipated delivering in the
third transaction.
At the conclusion of the hearings, the trial court assessed the defendant
as a Range I offender and found neither enhancing nor mitigating factors. At a
subsequent proceeding, the trial court denied Community Corrections.
ANALYSIS
The defendant asserts only that the trial court abused its discretion by
denying Community Corrections. When an accused challenges the length or
manner of service of a sentence, this Court reviews the record de novo “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 presumption of
correctness is contingent on the record indicating both the lower court’s reasons
for arriving at a sentencing decision and compliance with the statutory
sentencing guidelines and principles. See State v. Wilkerson, 905 S.W.2d 933,
934 (Tenn. 1995). The appellant bears the burden of showing that the
sentencing was improper. See Tenn. Code Ann. § 40-35-401(d) sentencing
comm’n cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
-4- The following considerations apply: (1) the evidence received at trial and at the
sentencing hearing; (2) the presentence report; (3) the principles of sentencing
and arguments as to sentencing alternatives; (4) the nature and characteristics
of the criminal conduct involved; (5) any statutory mitigating or enhancement
factors; (6) any statement made by the accused on his own behalf; and (7) the
potential or lack of potential for rehabilitation or treatment. See Tenn. Code
Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn.
Crim. App. 1987).
The established criteria for sentencing to Community Corrections are as
follows:
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MARCH 1999 SESSION July 19, 1999
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, * C.C.A. # 01C01-9804-CR-00183
Appellee, * DAVIDSON COUNTY
VS. * Honorable Seth Norman, Judge
TOMMY EDWARD SMITH, * (Delivery of Controlled Substance)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
SAM WALLACE, SR. JOHN KNOX WALKUP 227 Second Avenue N. Attorney General & Reporter Nashville, TN 37201 GEORGIA BLYTHE FELNER Counsel for the State 425 Fifth Avenue North Nashville, TN 37243-0493
VICTOR S. (TORRY) JOHNSON III District Attorney General
JOHN C. ZIMMERMAN Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue N. Nashville, TN 37201-1649
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS, Judge OPINION
The defendant, Tommy Edward Smith, pleaded guilty to three deliveries of
cocaine, a Schedule II substance. He twice delivered .5 or more grams of
cocaine, and the remaining delivery involved twenty-six or more grams of
cocaine. Each violation constituted a separate Class B felony. The Davidson
County Criminal Court sentenced the defendant as a Range I offender to three
concurrent eight-year sentences in the Tennessee Department of Correction
(TDOC). The defendant appeals, asserting that the trial court erroneously
denied him Community Corrections. We AFFIRM the trial court’s judgment.
BACKGROUND
The submitted record includes a transcript, which comprises testimony of
the defendant and two witnesses, testimony of a codefendant sentenced at the
same hearing, and the trial court’s findings.
The first witness, Latonya Flenoy, testified that she was the defendant’s
girlfriend. According to Flenoy, the defendant had no regular employer.
However, various persons would call him for “handyman” jobs, and she claimed
that he worked approximately thirty hours per week on these jobs.
The defendant’s mother, Christine Denise Williams, essentially testified
that she would help her son succeed in Community Corrections. Williams is a
Director of Operations with Shoney’s Inc. and promised to help her son obtain a
job. She candidly stated that she would not support him if he continued pursuing
criminal activities. She would, however, devote herself to helping the defendant
with the consequences of his current convictions.
The defendant guaranteed his compliance with any restrictions imposed
under a Community Corrections sentence. On cross-examination, when asked
-2- the name of his cocaine source, the defendant replied, “Well, see, I didn’t know
his name.” His counsel obtained a brief recess, conferred with his defendant,
and cross-examination resumed.
The state pursued the source’s identity, and the defendant asserted that
his source, Gary Douglas, had died. The defendant’s further testimony on this
point was not enlightening. The defendant had only known Douglas “a couple of
months,” yet Douglas would advance him at least one and one-half ounces of
cocaine. The defendant first testified that he did not know Douglas’s
accomplices and never saw him with other people. However, the defendant
subsequently described a busy nightclub scene where he apparently met and
assumedly cultivated some relationship with Douglas. The defendant vaguely
described the mechanics of the interaction: They were “all in the club . . .
mingling and talking.”
In short, the defendant claimed a paucity of knowledge regarding
Douglas’s business, stating that he “didn’t know much about it” and “didn’t know
much about [Douglas].” Ignorant as to Douglas’s residence, the defendant had
contacted him through a pager number.
Regarding the defendant’s relationship with codefendant Beverly D. Ray,
the defendant testified that he provided drugs “[m]aybe two - maybe two or three
times” to Ray before the three transactions leading to his convictions.
During the final and largest transaction, two male subjects in a vehicle
followed the defendant from one location to another, apparently conducting
countersurveillance. The defendant noticed the subjects “riding around in the
area” but denied any further knowledge of them.
-3- After the defendant testified, the trial court commented that the defendant
was covering for accomplices and protecting involved parties, including the
apparent countersurveillance. The trial court could not anticipate a “straight
answer” from the defendant.
The record comprises codefendant Beverly D. Ray’s sentencing hearing
testimony. She testified that she not only obtained the drugs for the three sales
from the defendant but also had obtained drugs for her personal use prior to the
transactions. Before these transactions, she had seen the defendant with drugs
and knew he was a dealer. According to Ray, the defendant could have
provided the two ounces of cocaine she originally anticipated delivering in the
third transaction.
At the conclusion of the hearings, the trial court assessed the defendant
as a Range I offender and found neither enhancing nor mitigating factors. At a
subsequent proceeding, the trial court denied Community Corrections.
ANALYSIS
The defendant asserts only that the trial court abused its discretion by
denying Community Corrections. When an accused challenges the length or
manner of service of a sentence, this Court reviews the record de novo “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 presumption of
correctness is contingent on the record indicating both the lower court’s reasons
for arriving at a sentencing decision and compliance with the statutory
sentencing guidelines and principles. See State v. Wilkerson, 905 S.W.2d 933,
934 (Tenn. 1995). The appellant bears the burden of showing that the
sentencing was improper. See Tenn. Code Ann. § 40-35-401(d) sentencing
comm’n cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
-4- The following considerations apply: (1) the evidence received at trial and at the
sentencing hearing; (2) the presentence report; (3) the principles of sentencing
and arguments as to sentencing alternatives; (4) the nature and characteristics
of the criminal conduct involved; (5) any statutory mitigating or enhancement
factors; (6) any statement made by the accused on his own behalf; and (7) the
potential or lack of potential for rehabilitation or treatment. See Tenn. Code
Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn.
Crim. App. 1987).
The established criteria for sentencing to Community Corrections are as
follows:
(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 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
Tenn. Code Ann. § 40-36-106(a).
Even if the defendant met these criteria, eligibility for Community
Corrections does not mandate that alternative sentencing. Community
Corrections is a “community based alternative[ ] to incarceration.” Tenn. Code
Ann. § 40-36-103(1) (emphasis provided). Relevant provisions of the Criminal
Sentencing Reform Act govern application of alternative sentencing, including
Community Corrections. See State v. Ashby, 823 S.W.2d 166 (Tenn. 1991) (On
reviewing an appeal from denied Community Corrections, the Tennessee
Supreme Court applied the statute for that time period regarding probation.).
-5- Therefore, “[i]n reviewing a trial court’s denial of an alternative sentence,
we must first determine whether the appellant is entitled to the statutory
presumption that he is a favorable candidate for alternative sentencing.” State v.
Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). The defendant, convicted
of three Class B felonies, is not “presumed to be a favorable candidate for
alternative sentencing options.” Tenn. Code Ann. § 40-35-102(b).
Further, the trial court found that the defendant’s testimony lacked candor
and truthfulness. “Generally, this [C]ourt will not set aside findings of fact made
by the trial court after an evidentiary hearing unless the evidence contained in
the record preponderates against the trial court’s findings.” Zeolia, 928 S.W.2d
at 462. We conclude that the evidence does not preponderate against the trial
court’s findings.
Untruthful testimony reflects adversely on a defendant’s rehabilitative
potential and is thus relevant in determining appropriate sentence alternatives.
See Tenn. Code Ann. § 40-35-103(5). Such testimony may constitute the sole
bar to alternative sentencing. See State v. Dowdy, 894 S.W.2d 301 (Tenn. Crim.
App. 1994).
By statute, the trial court could not presume that the defendant merited
alternative sentencing. The defendant’s own testimony dissuaded the trial court
from otherwise considering Community Corrections. The trial court committed
no error by denying Community Corrections.
-6- CONCLUSION
The judgment of the trial court is AFFIRMED.
_____________________________ JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_____________________________ DAVID H. WELLES, Judge
_____________________________ JOE G. RILEY, Judge
-7-