State v. Bailey ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED DECEMB ER SESSION, 1997 February 4, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00204 ) Appellee, ) ) BLOUNT COUNTY ) V. ) ) HON . D. KEL LY TH OM AS, JR., JUD Y R. B AILEY, ) JUDGE ) Appe llant. ) (FRAUD ) FOR THE APPELLANT: FOR THE APPELLEE: LAURA RULE HENDRICKS JOHN KNOX WALKUP Eldridge, Irvine & Hendricks Attorney General & Reporter 606 West Main Street, Ste. 350 P.O. Box 84 MICH AEL J. F AHEY , II Knoxville, TN 37901-0084 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 RAYMOND MACK GARNER MICHAEL L. FLYNN District Public Defender District Attorney General SHAW N T. GR AHAM KIRK ANDREWS Assistant Public Defender Assistant District Attorney General 415 High Street 363 Court Street Maryville, TN 37804 Maryville, TN 37804 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Defen dant, Jud y R. Bailey, pled guilty to the offense of obtaining a controlled substance by fraud in violation of Tennessee Code Annotated section 53-11-402. Pursua nt to the negotiated plea agreement, she received a Range I three (3) year sentence and $500.00 fine, with the manner of service of senten ce to be determ ined by th e trial court follo wing a h earing. T he Circu it Court of B lount Coun ty ordered a sentence of split confinement consisting of ten (10) months in the Blount Coun ty Jail followed by two (2) ye ars and two (2) m onths o f intens ive probation. The sentence was ordered to be served concurrently with a sentence for convictions in Knox Co unty. In her sole issue on appeal, Defendant argues that the trial court erred by not ord ering a senten ce alternative that doe s not involve incarcer ation. W e affirm the judgm ent of the tria l court. Defendant was thirty-three (33) years old at the time of the sentencing hearing. The offense for which Defendant was convicted occurred on April 18, 1996. The record reflects that she obtained a controlled substance from a dentist by fraud and misrep resenta tion by pro viding the d entist with a false name, date of birth, social security numbe r, address and employment information. The Defendant testified at the sentencing hearing that she became addicted to pain medication aft er she received back inju ries in an a utomo bile wreck in 1992. Defe ndan t’s prior record include d convictions o n Mar ch 5, 1 996 in Blount County Circuit Court for one count of burglary of a building other than a habitation, one count of theft less than $500.00, and one count of attempt to possess -2- controlled substances. Apparen tly, the sentences were run concurrently with each other an d she w as place d on pro bation. On August 23, 1996, Defendant was convicted in Knox County Criminal Court for the offen ses of the ft of property over $1,000.00, and three counts of obtaining controlled substances by forged prescriptions. She had originally been placed on pre-trial diversion for these offenses, but it was terminated upon her commission of other crimes . She was p laced in the Co mmu nity Alternati ves to Prison Program (CAPP) for the Knox County Convictions. However, due to her failure of drug screen tests which were positive for morphine and other technical violations, Defendant was incarcerated in the K noxville Detention Center. There she was placed in an intensive rehabilitation program with the understanding that she could be returned to the CAPP program upon successful completion of the rehabilitation program during the incarceration. Defendant entered into her negotiated plea agreement in the case sub judice on No vemb er 26, 19 96. The record shows that when Defendant was arrested for the offense which is the subject of this app eal, there were approximately forty (40) pills in her purse, including four (4) different types of controlled substances. She claimed that she had prescriptions for each of these, but never provided them to the arresting officer despite his request. She had six (6) unexcused absences from required meetings while participating in the CAPP program in Knox County. On December 2, 1996, sh e tested p ositive for m orphine following a drug scr een. She claimed that she had rec ently taken the last pill from a prescription given to her in September 1996 by a dentist. She also failed to pay on her court costs as scheduled. -3- On December 13, 1996, Defendant was requested to submit to a drug screen from h er prob ation o fficer on th e prior Blount County convictions. She provided a sam ple wh ich wa s coo ler than body tempe rature, an d due to its coloration, the probation officer felt that the cup contained to ilet water. A second sam ple was imme diately requ ested. The first sample was negative, and the second samp le was po sitive for mo rphine. Defendant admitted during her testimony at the sentencing hearing that she had obtained the first sample from toilet water. She also claimed on December 13 that she had taken pain medication a day or two before from the same September 1996 prescription which she had earlier claimed was depleted around December 2, 1996. Defendant also provided a drug screen which was positive for morphine on January 7, 1997. Defendant admitted during her tes timon y that the pills which led to the positive drug screens on December 2 and December 13 did not come from the prescriptio n provide d to her in S eptem ber. Defendant testified that she obtained the prescription on September 18, 1996 fo r fifteen (15) L orcet pills with one refill. She took all of the first fifteen (15) on September 18 and obtained a refill the next day. S he had not taken any pain medication from May 3 through September 18, 1996. She was not suffering from withdrawal symptoms when she next obtained the p rescription drug s, and co uld not rea lly provide an answe r as to why she had suddenly decided to again obtain the controlled substance. Defendant acknowledged during her testimony that she h ad adm itted herse lf into rehabilitation at the time of her convic tions in Bloun t Cou nty in March 1996 simply to stay out of jail and that she had continued taking the pain medication during her outpatient treatme nt. -4- In determining the appropriate manner of service of the sentence, the trial court de clined to o rder a se ntence which invo lved relea se into the comm unity during the entire sentence on the basis that she had recen tly “chea ted” an d not to ld the truth while serving a sentence on release status, had continued to use controlled substance s, and has a lengthy criminal history. When 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 pres umptio n that the d etermin ations m ade by th e trial court a re correct. T enn. C ode An n. § 40-35-4 01(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all rele vant facts a nd circum stance s." State v. Ashby, 823 S.W .2d 166, 169 (T enn. 1991 ). In conducting a de novo review of a sen tence , this court must co nsider: (a) the evidence, if any, re ceived at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatme nt. Tenn . Code Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 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 principles set out under the sentencing law, and that -5- the trial court's findings of fact are adequately supported by the record, then we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). At the ou tset, we note th at we h ave de termin ed the trial court’s judgment should be reviewed de novo with a pres umptio n of corre ctness. A defendant convicted of a Class C, D, or E felony who is an especially mitigated or standard offende r is presum ed to be a favorab le candid ate for alternative sentencing options if the defendant does not fall within the parameters of Tennessee Code Anno tated sec tion 40-3 5-102(5 ). See Tenn . Code Ann. § 4 0-35-10 2(6). Allowing the Defendant the benefit of the presu mptio n, we in itially note that the trial court sentenced her to an a lternative se ntence of split confin emen t. See Tenn. Code Ann. § 40-35-104(c)(3). There is no presumption that Defendant is entitled to a specific type of alternative sentence. Statutory law provides that a sentence involving confinement should be based in part upon the consideration that measures “less restrictive than con finement have frequently or recently been applied unsu cces sfully to the defenda nt.” Tenn . Code Ann. § 40-35-103(1)(C). Therefore, the se ntenc e of sp lit confin eme nt in this case is in accord with the purposes of the Criminal Sentencing Reform Act of 1989. We affirm the ju dgme nt of the trial co urt. -6- ____________________________________ THOMAS T. W OODALL, Judge CONCUR: ___________________________________ DAVID H. WELLES , Judge ___________________________________ DAVID G. HAYES, Judge -7-