IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL SESSION, 1998 June 12, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9706-CR-00211 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON. THOMAS H. SHRIVER, JUDGE TILLIE RUTH STEEPLES, ) ) Appe llant. ) (DELIVER Y OF S CHED ULE II DR UG)
FOR THE APPELLANT: FOR THE APPELLEE:
PETER J. STRIANSE JOHN KNOX WALKUP TUNE, ENTREKIN & WHITE, P.C. Attorney General & Reporter 2100 First American Center Nashville, TN 37238 ELIZABETH B. MARNEY Assistant Attorney General MARY A. PARKER 2nd Floor, Cordell Hull Building STEPHEN C. CROFFORD 425 Fifth Avenue North Suite 511, Cummins Station Nashville, TN 37243 209 T enth Av enue S outh Nashville, TN 37203 VICTO R S. JO HNS ON, III District Attorney General
TOM THURMAN Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Defen dant, Tillie R uth Steeples, appeals as of right the six-year sentence
imposed by the Davidson County Criminal Court following her sentencing hearing.
After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.
Defendant was indicted on four counts of cocaine-related charges pertaining
to incid ents o ccurrin g on J uly 26, 1994 and August 10, 1994. Count One charged
Defendant with delivery of .5 grams or more of cocaine, and Count Two charged her
with causing a Schedule II drug to be taken o r sent into a deten tion facility where
prisoners are quartered. Count Three charged Defendant with taking or sending a
Sche dule II drug into a detention facility on August 10, 1994, and Count Four
charged Defen dant with th e death of her incarcerated husband, Thomas Steeples,
resulting from the unlawful distribution of cocaine. On November 14, 1996,
Defendant entered a nolo conten dere plea to Coun ts One and T wo. Co nsistent w ith
the plea agreement, Counts Three and Four dealing with the August 10, 1994, event
were dismissed. Nonetheless, Defendant denied guilt as to all four Counts against
her at the sentencing hearing. Following the two-day sentencing hearing, the trial
court sentenced Defendant to serve the agreed -upon s ix-year sen tence re lating to
Coun ts One and Two, and denied Defendant’s request that she be given some type
of alternative senten cing.
It is first necessary to describe the nature of the circumstances surrounding
all four Coun ts aga inst De fenda nt sinc e the fa cts pe rtaining to all four Counts w ere
brought out at the s entenc ing hea ring. Despite the fact that Counts Three and Four
were dismissed, the trial court allowed the State to o ffer eviden ce on tho se cou nts
-2- as that evidence pertained to Defendant’s character. Counts One and Two re late
to the July 26, 1994 incident in which Defendant purchased cocaine from a known
drug dealer, pla ced it in an envelope where it was then taped to business papers,
and had th e pap ers an d coc aine d elivere d to he r husb and in jail by he r husb and’s
lawyer. The State’s theory relating to Counts Three and Four involves Defendant
directing her employee, Donna Esstman, to purchase a sweatsuit and other clothing
items for Defen dant’s hu sband . Defenda nt then placed cocaine inside part of a latex
glove and put that latex piece inside a mended place in the waist band of the
sweatpants. On August 10, 1994, she sent the clothing package to Michael Evans,
an inmate in the same jail where Defendant’s husband was incarcera ted. As a re sult
of this last delivery of cocaine, Defendant’s husband overdosed on the cocaine and
died. The State’s theory involved showing that Defendant had used a sewing
machine to restitch the sweatpants containing the cocaine and conspired to destroy
or cover up tha t and other evide nce of crimina l activity.
On Novem ber 14, 1 996, at a hearing on Defendant’s plea of nolo conten dere
to Counts One and Two, the following facts were established by the State.
Sometime prior to May 19, 1994, Defendant’s husband was arrested and charged
with three co unts of first-degree murder, especially aggravated rape, and various
drug charges. Prior to July 26, 1994, Defendant told employees of her company that
her husb and w ould n ever g o to trial. She to ld Dr. K ellum , her so n’s sch ool prin cipal,
that her husband was going to commit suicide and that she would receive a large
insurance settlement. On July 26, 1994, there was a $580,000 life insurance policy
in effect for Mr. Steeples.
-3- Also prior to July 26, 1994, Defendant asked an employee, Don Vanloon, how
much cocaine it would tak e to kill a person. On July 25, 1994, Defendant cashed a
$1,000 check and met with Fred Ross, a known drug dealer, at a local motel. On
July 26, 19 94, M r. Van loon w as wo rking a t Defe ndan t’s place of b usiness when
Defendant left to meet with her lawyer, Mark McDougal. Defendant’s husband called
the place of bus iness and to ld Mr. Vanlo on to te ll Defen dant n ot to lea ve a ce rtain
package alone with Mark McDou gal. On July 26, 1 994, Defen dant drove M r.
McDougal to the ja il where Defe ndan t’s husband was incarcerated. Defendant gave
Mr. McDougal a package containing some business papers to take to her husband.
Even though Mr. McDougal had taken business papers to the jail by himself before,
on this occa sion De fendan t insisted tha t she acco mpa ny Mr. M cDou gal to th e jail.
Mr. McDougal went in the jail and delivered the package to Mr. Steeples. N ormally,
Mr. Steeples would have had a conversation with Mr. McDo ugal, but this time M r.
Steeples took the package, got a cold drink, and returned to his cell. Upon returning
to his cell, Mr. Steeples was stopped and searched by two guards who discovered
cigarettes taped in an envelope. Mr. Steeples grabbed the envelope from one of the
guards and star ted to eat th e envelo pe that co ntained white powder. After he had
consumed some of the white powder in the envelope, Mr. Steeples was taken to a
hospital for treatment. The white powder in the envelope was coca ine. De fenda nt’s
fingerprints were lifted from inside a piece of tape used to attach the envelope
containin g coca ine to the b usiness papers .
Based on the foregoing facts, Defendant pled no contest to Counts One and
Two in exchange for a senten ce of three years on each count, to be served
consecutively for a total of six years. Counts Three and Four were dismissed.
-4- Defe ndan t’s sentencing hearing was conducte d over two days in January,
1997. Twice during the sentencing hearing, the trial court asked defense counsel
if Defendant would like to withdraw her plea. Both times, defense counsel talked
private ly with Defendant, and both times defense counsel stated that Defendant
wanted to proceed with her plea. The trial court warn ed Defendant that any
untruthfulness at the hearing would affect her sentence. Defendant and eighteen
other witn esses te stified rega rding the July and A ugust 1 994 eve nts.
Evidence at Defendant’s sente ncing hearin g reve aled th at after h er hus band ’s
arrest on the murder, rape and drug charges, Defendant wrote a letter date d Apr il
29, 1994, to Dr. Da nny Ke llum, the p rincipal of a p rivate school that had expelled her
son, stating that “half the time we don’t even know where he [Mr. Steeples] is” but
then praised her husband as “a wonderful man” who “deserves the respect of the
faculty, staff, student body, and community.” She originally included a check for
$75,000 in the le tter for th e sch ool’s n ew library an d wan ted to n ame the libra ry in
honor of her husband. However, she tore up the check when the school expelled
her son.
On May 1 9, 199 4, while Mr. Steeples was incarcerated, Defendant testified
at her husband’s bond hearing, which was held before the same judge who presided
over Defendant’s sentencing hearing. From the record, it appears that Defe ndan t’s
testimony at the bond hearing focused on her unwavering supp ort of he r husb and’s
release on bond to get treatment for cocaine use, that she was not considering
divorce, and that she alleged that he abused her in a prior divorce filing because
“angry wives do a lot of things .” She testified at the bon d hearing that, exc ept for
-5- one occasion, she had always known her husband’s whereabouts when he was not
at hom e.
Defendant testified at the sentencing hearing that sh e did n ot reca ll a meeting
with the drug dealer F red Ro ss. Defendant testified that she knew a “Fred” who
owed her husband a lot of money and that she contacted this “Fred” to raise money
for her husband’s lawyers. Defendant testified that she did n ot recall wh y she wro te
a $1000 check for cash on July 25, 1994, the day before Defendant’s husband
ingested cocain e the firs t time. D efend ant tes tified tha t she d id not re call a
conversation on April 6, 1995 with Donna Esstman in which she st ated s he ha d told
investigating authorities she did not know Fred Ross. The State’s attorney read the
following from a re cording of an April 6, 1995 conversation between Ms. Esstman
and D efenda nt:
(Defenda nt): “When they showed me this picture of Fred, I just flat out told them that I had never seen this person before in my life. I don ’t recogniz e him a t all.”
(Esstman ): “Do they know who he is?”
(Defenda nt): “They know who he is; but, they can’t get any evidenc e on him .”
Defendant testified at her sentencing hearing that she did not recall that
conversation.
When questioned about a recording of a conversation that she had with Ms.
Esstman on April 3, 1995, Defendant denied that the recording revealed that she
was encouraging Ms. Esstman “to deny everything” to the authorities. Defendant
testified that what she was encouraging Ms. Esstman to deny was “a whole lot of
stuff that she’s got built up in her hea d. . . She has a lot o f emotion al problem s.”
-6- Defendant testified that the sewing machine that they discussed on the tape had
belonged to an ex-employee and was taken from the office by Ms. Esstman.
Defendant testified that she did not know anything about sewing done on the sweat
pants that were delivered in August 1994 to her husband in jail. She further denied
using the sewing m achine “for any criminal intent.” Defendant testified that the
sweats uit, socks and underwear she sent Ms. Esstman to purchase were for her son
and not for her husband.
Defendant testified that her fingerprints were on the tape attaching the
envelope containing cocaine to the business papers because she had wrapped the
tape around a pencil so that her husband could repair his broken glasses.
Defendant testified that she did not know who put drugs in that package delivered
to her husband on July 26, 1994. She testified that she d rove Mr. M cDou gal to the
jail because it was raining hard that day. She further testified that the only reason
her husband left her a message not to leave the package with Mr. McDougal was out
of concern tha t he might no t deliver it immediately.
The trial court questioned Defendant about her statement in the pre-sentence
report charging that Detectives Pridemore and Postiglione, who were investigating
the charges against her husband, had threatened her with destruction of her
business. Specifically, she stated in the pre-sentence report as follows:
I pled ‘no contest.’ My greatest crime was being married to Tom Steeple s. When he died before going to trial, the system wanted blood and could find it by pursuing me and the busines s. The 2 detectives vowed they would destroy both me an d my bu siness. They have! They stood in front of my business and swore I would be the next notch on their belt. I was! They said no one would do business with someone accused of murder whether convicted or not. They were right! They bragged about bringing down
-7- a large BP Station and said I would be next. I was! My husband was not searched before he came down. He brought a large 9 x 12 white envelope down w ith him. It contained the drugs I was accused of sending in to him.
At the sentencing hearing, Defendant stated that this was her “scenario” of the
charges against h er. Defen dant testified further tha t the officers h ad, in fact,
threatened to destroy her business.
Detective Postiglione testified that after Defendant’s husband became a
suspe ct, that he and Detective Pridemore went to Defendant’s place of business to
try to speak to her because her husband had disapp eared and officers were unab le
to locate him. When the detectives attempted to speak with Defendant in front of her
place of business, she was hostile and refused to speak to Detective Postiglione.
She eventu ally bec ame verba lly abusive to both office rs. Acco rding to Postiglione,
neither he no r Pridemore threatened Defendant with destroying either her or her
business.
Michael Evans, a fellow inmate of Mr. Steeples, testified that on August 10,
1994, he received a package containing underwear, socks, and a sweatsuit that was
delivered to the jail after h e had s poken to Defen dant on the pho ne. After Mr. Evans
received the packag e, he told Mr. Steeples wh ere the package was and left to take
a shower. About two and a half hours later, Mr. Steeples was found dead from a
cocaine overdos e.
-8- Ms. Esstman testified that Defendant stated repeatedly that her husband
would never go to trial. Prior to Mr. Steeples’ death, Defendant asked Ms. Esstman
to purchase a white two-piece sweatsuit, some white tube socks and some mens
underwe ar. Defendant told Ms. Esstman that these items were to be sent to Mr.
Steeples as a care package.
Before Mr. Stee ples’ dea th, Ms. Es stman went with Defendant to meet an
individual named Fred at the Days Inn on Tr inity Lane. Prior to this meeting,
Defendant and Ms. Esstman had gone to a NationsBank where Defendant cashed
a check. Around the time that these events were taking place, Ms. Esstman
estimated that Defendant received more than a dozen phone calls at work from a
person named Fred.
Ms. Esstm an furthe r testified that o n the da y of Mr. Steeples’ death, Defendant
received a pho ne ca ll from h er hus band that m orning . After th e pho ne ca ll,
Defendant seemed distraught and emotional. After Defendant was notified of her
husb and’s death, she told Ms. Esstman that it was over and that she had done what
her husband had wanted her to do.
Shor tly after he r husb and’s death, D efenda nt delivered a sewing mach ine to
Ms. Esstman and asked her to keep it in the trunk of her car. Eventually Ms.
Esstman called the police and turned the sewing machine over to them. Ms.
Esstman testified that sh e soo n beg an co opera ting with the au thorities in their
attempt to get tapes to corroborate the meetings with Fred, the purchase of the
clothes, and the matter of the sewing machine.
-9- John Lowery, a pressman who had worked for Defendant, testified that on
April 6, 1995, Defe ndan t aske d him and a nothe r emp loyee to go to M s. Ess tman ’s
house to get a sewing machine. At that time Mr. Lowery was aware that the police
already had the sewing machine and that Ms. Esstman was cooperating with the
police. Mr. Lowe ry told the au thorities tha t Defend ant was planning to destroy or
hide evidenc e. Defen dant testified that she did not recall telling Mr. Lowery to get
the sew ing ma chine from Ms. Ess tman.
Detective Postiglion e testified tha t a pair of co tton swe atpants, some mens
underwe ar, and w hite tub e soc ks we re foun d in Mr. Steeples’ jail cell after his death.
He testified that n o cocaine residue was found on the clothes but that the
sweatp ants had a rip in the area where the string would normally be tied and tha t a
piece of la tex glove w as foun d close to Mr. Stee ples’ bod y.
Defendant offered proof that she has no prior arrest record or prior
convictions. She also testified that she has worked her entire adult life. She has
owned her own business for twenty years. Defendant resides with her two children
in Mt. Juliet, Tennessee. Defendant offered proof that she participates in school
activities with her sixte en yea r old son, including football games and fundraisers for
the scho ol and the foo tball tea m. De fenda nt serv ed on com mittee s at he r daug hter’s
school as well. A former teacher of her son testified that Defendant never acted
inapp ropria tely or contrary to the best interest of the children. The teacher also
testified that it w ould be devasta ting if the son lost anoth er paren t.
Defendant testified at length about the physical abuse she suffered from her
husband. She testified that her husband had broken many of her bones in the past
-10- and that many of the beatings occurred in front of her children. She said that her
children had to call the police on several occasions. Defendant testified that her
husband told her if she didn’t s tay with him th at he w ould kill the children in front of
her, and that he would then kill her. After her husband was incarcerated, Defendant
said that he continued to call her and threaten the childre n if she did not ac cept h is
phone calls.
Dr. Scott F airchild , a licen sed c linical ps ycholo gist, testified on behalf of the
defense. After pleading nolo conten dere, Defendant sought counseling from him on
three occasions. D r. Fairchild testified that people who get into abusive relationships
tend to repeat them and that he was not surprised that D efend ant ha d tried to help
her abusive husband get out of jail on bond. He went on to say that he believes that
if the Defendant is not allowed treatment then she could again be involved in criminal
activity.
Her son, Joh n Steep les, testified tha t he had seen h is father ab use De fendan t.
He recalled one incident when he stepped in between his mom and dad to break up
the fight. He said that he had called the police to prevent the abuse on other
occasions.
The pastor of Defendant’s church testified that a strong bond exists between
Defendant and he r children. H e said tha t Defend ant was devoted to her children
and that he ha d seen no evide nce that Defendant would be a threat to other
mem bers of society. The church administrative assistant also testified and said that
Defendant did attend church and that she had never seen Defendant engaged in any
criminal b ehavior.
-11- A longtime friend o f Defendan t, Ellis Green, testified that he had known
Defendant since 1974. He said that he had never seen Defendant try to hurt anyone
either physic ally or em otiona lly. He fu rther sa id that th e pub lic wou ld be s afe if
Defendant was put on probation.
Defe ndan t’s bankruptcy attorney testified that Defendant’s company was
viable as of 1994. However, after her husband was incarcerated in 1994, the
company began to falter. Defen dant p ut in $500,000 to try and save the c ompan y,
but it still failed. Defen dant us ed her h usban d’s life insura nce pro ceeds to try and
save the bus iness, but she e ventually had to file for ban kruptcy.
Because the State and Defendant agreed upo n the length an d consecu tive
nature of the sentenc es, Defend ant’s only issue in this appeal is the manner of
service of the six-year sentence. A defendant who “is an especially mitigated or
standard offender convicte d of a Class C , D or E felony is presumed to be a
favora ble candidate for alternative senten cing optio ns in the a bsenc e of evide nce to
the contrary.” Tenn. C ode Ann . § 40-35-102 (6). Our sentencing law also provides
that “convicted felons committing the most severe offenses, possessing criminal
histories evincin g a cle ar disre gard fo r the law s and mora ls of society, and evincing
failure of past efforts at rehabilitation shall be given first priority regarding sentencing
involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant
sentenced to eight years o r less w ho is n ot an o ffende r for wh om in carce ration 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 crite ria are entitled to such relief; rather, it requires that sentencing issues
-12- be determined by the facts and circu mstan ces pre sented in each c ase. 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 purpose s for wh ich the sente nce is
imposed. Tenn . Cod e Ann . § 40-3 5-103 (3)-(4). The c ourt sh ould also consider the
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative. Tenn . Code An n. § 40-35-10 3(5).
When impo sing a sente nce o f total co nfinem ent, ou r Crim inal Sentencing
Reform Act requires the trial court to base its decision on the considerations set forth
in Tennessee Code Annotated section 40-35-103. These considerations which
militate against alternative sentencing include: the need to protect society by
restraining a defen dant ha ving a long history of criminal conduct, whether
confinement is particularly a ppropria te to effectively deter others like ly to com mit a
similar offense, the need to avoid depreciating the seriousness of the offense, and
the need to order confinement in cases in which less restrictive measures have often
or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-
103(1).
In determining whether to grant probation, the judge mu st consider the n ature
and circumstances of the offense, the defendant’s criminal record, her background
and social history, he r presen t condition , including h er physic al and m ental condition,
the deterrent effect on other crimin al activity, and th e likeliho od tha t proba tion is in
the best interests o f both the p ublic and the defen dant. Stiller v. State, 516 S.W.2d
-13- 617, 620 (19 74). The burden is on the Defendant to show that the sentence she
received is improper and that she is entitled to probatio n. State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). Grants or denials for probation and other types of
alternative sentencing are reviewed de novo with a presumption of correctness.
Tenn. Code Ann. § 4 0-35-40 1(d); State v. Byrd, 861 S.W.2d 377 (Tenn. Crim. App.
1993). This presumption is “conditioned upon the affirmative showing in the record
that the trial cour t conside red the s entenc ing princip les and a ll relevant facts and
circumstan ces.” Ashby, 823 S.W .2d at 169 .
In the in stant c ase, th e trial co urt dete rmine d that re gardle ss of D efend ant’s
persistent denial of guilt, there was a factual basis for finding guilt. Further, the trial
court recited numerous incidences where Defendant’s sworn testimony was not
truthfu l. Finally, the trial co urt obse rved that, in light of the severity of the charges
against her, Defendant was given considerable le nience in the plea agreem ent.
After cons idering all of the forego ing, the trial cou rt conc luded that D efend ant sh ould
spend her six-year sentence incarcerated in order to deter others from smuggling
drugs into prisons, to avoid depreciating the seriousness of the o ffense , and to avoid
inequities in sentencing. After a careful review of the record, we find that the trial
court properly considered the sentencin g princ iples, a nd the refore , our rev iew will
be de novo with a presumption of correctness.
The Defendant’s two convictions are Class C felonie s. See Tenn. Code Ann.
§§ 39-11-403; 39-16-201(b). She was sentenced as a Range I Standard Offender
to three years for each count. There is a statutory presumption that the Defendant
is eligible for pro bation as to these c onvictions . See Tenn . Code Ann. § 40-35-
102(6). However, the trial court denied her request for probation on these counts.
-14- W e agree with the trial cou rt that Defendant should not be granted probation
for her convictions o n Counts O ne and T wo. Defend ant does ha ve an excellent work
history and social history. Sh e has neve r been con victed of another c rime.
Howeve r, we must emphasize the seriousness of this crime. Defendant illegally sent
cocaine to her husband in prison, apparently with the intentions of allowing her
husband to overdose on the drug so he would not have to stand trial. Also, since her
husb and’s insurance policy apparently did not have a “suicide clause,” Defendant
was able to collect m ore tha n a ha lf million dollars as a re sult of h er hus band ’s
death. The circumstances of an offense may be an appropriate factor for the denial
of probatio n. State v. W iseman, 643 S.W.2 d 354 (T enn. C rim. App . 1982). W e
conclude that the circumsta nces of this offens e alone are likely enough to su pport
the den ial of proba tion.
Untruthfulness or lack of cando r may als o be an approp riate cons ideration to
deny probation because it reflects poorly upon a defendant’s potential for
rehabilitation. State v. Bunch, 646 S.W.2d 158 (Tenn. 1993). Defendant did not
accept blame for any of her actions, even in the face of overwhelming evidence that
she did in fact commit the offenses . For example, Defendant’s denial that she knew
her husb and w as pla nning to com mit su icide was not credible based on the
evidence. The re cord sh owed th at Defen dant ha d told seve ral peop le that her
husband would never go to trial and that when she learned of his death, she stated
“I’m free.” Defenda nt’s testimony reg arding her helplessness in the face of her
husb and’s abuse was also uncon vincing to the trial court. As the trial judge pointed
out, Defendant was extrem ely supportive of her husband at his bond hearing and her
demeanor at that hearing was “imperious, be lligerent, defensive and hostile.” The
court determined that the hostility Defendant exhibited at the bond hearing and the
-15- statem ents praising her husband in her letter to Dr. Kellum undermined and belied
her insisten ce at th e sen tencin g hearing that she was a helpless victim of her
husb and’s abuse. Defend ant even wanted to give m oney to her son’s sch ool for a
new library, and wished to name it in honor of her husband.
Defe ndan t’s testimony that she d id not reca ll the mee ting with the drug dea ler,
Fred Ross, was also unconvincing. The testimony of Donna Esstman and the
transcript of the A pril 6, 19 95 co nvers ation c omp letely contradict Defe ndant’s story.
The court con cluded that the evid ence s howed that the m eetin g did in fact take
place, and as a result of that meeting, Defendant purchased cocaine that was later
sent to her husband in prison. Also, Defendant’s explanation of her advice to Ms.
Esstman that “you ca n . . . strictly deny everything if you want to” meant that she was
urging Mrs. Esstman to confront her psychological problems is likewise
unconvincing. Furthe rmor e, De fenda nt’s insistence that she knew nothing about the
sewing machine or any attempt to hide it from authorities is contradicted by the
testimony of Ms. Esstman and John Lowery whose testimony regarding Defe ndan t’s
efforts to hide evidence was absolutely consistent with one another. All of the
foregoing facts point to Defendant’s lack of candor with the trial court as well as her
untruthfulness.
Defendant claims that the State introduced no evidence at her sentencing
hearing regard ing the July 26, 199 4 inciden t. In fact, the testimony focusing on the
cocaine purchase from Fred Ross, the delivery of cocaine to the jail by her lawyer,
the discovery of coca ine in the envelop e, and the disco very of Defe ndan t’s
fingerprints on the tap e all dealt w ith the July 2 6, 1994 incident.
-16- W e disagree also with D efenda nt’s conte ntion that o nly an alte rnative
sentence “with continued treatment and therapy” can benefit her. The record just
does not supp ort Defen dant’s cla im that she is actively or genuinely seeking
treatment or reha bilitation since she did not visit a psychologist until after she had
entered he r nolo contendere plea.
Likewise, we also disagree with Defen dant’s conten tion that the trial court
denied her probation by imposing an extra-statutory requirement for granting
probation. Specifically, Defendant argues that the trial court, in essence, made a
defendant who enters a nolo conten dere plea presum ptively ineligible for alternative
sentencing. However, the record does not support Defendant’s assertion. As
previo usly discussed, Defendant was consistently evasive and untruthful in her
testimony. Defenda nt was also un repentant an d showed contemp t for the
proceeding in which she testified. These are all ample reasons for determining that
Defendant was unsuitable for alternative sentencing. See State v. Dykes, 803
S.W .2d 250 (Te nn. Crim. Ap p. 1990).
Defendant also reque sts tha t her ca se be rema nded to perm it her to withdraw
her nolo conten dere plea and allow her a jury trial. However, the trial court asked
the Defe ndan t two tim es du ring the sente ncing hearin g if she would like to withdraw
her plea. After discussion with her counsel both times, she expressed her decision
to proce ed with the se ntenc ing he aring and with her plea of nolo contende re.
Obviously, Defendant did not seek the relief which she is now a sking at the trial court
and we are prec luded fro m ente rtaining tha t reques t absen t plain error. See State
v. McClintock, 732 S.W.2d 268 (Tenn. 1987). Defendant’s attempt to seek relief
beyond the issue presented in her notice of appeal, the denial of probation or other
-17- form of alternative sentence, canno t now be entertaine d. See id.; see also Tenn. R.
Crim. P . 37(b).
In sum mary , Defe ndan t’s overa ll dem eano r, including her insistence on
blaming other people and her lack o f cando r and truth fulness to the cour t, all militate
agains t any type o f alternative s entenc e.
Accord ingly, we affirm the judgm ent of the tria l court.
____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ GARY R. WA DE, Presiding Judge
___________________________________ L. T. LAFFERTY, Special Judge
-18-