State v. Elbert Marable ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY SESSION, 1996
April 3, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9512-CC-00436
Appellate Court Clerk
)
Appellee, )
)
) RUTHERFORD COUNTY
VS. )
) HON. J.S. DANIEL
ELBERT MURFREE MARABLE, ) JUDGE
SR., )
Appellant. ) (Direct Appeal-Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY R. DOTSON CHARLES W. BURSON
102 South Maple Street Attorney General and Reporter
Murfreesboro, TN 37130
JANIS L. TURNER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
BILL WHITESELL
District Attorney General
Third Floor Judicial Building
Murfreesboro, TN 37130
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appellant Elbert Murfree Marable, Sr. entered a plea of guilty in the
Rutherford County Circuit Court to possession of a Schedule II controlled
substance with intent to sell or deliver. As a R ange I stand ard offender,
Appellant received a sentence of six years in the county workhouse. The trial
judge ordered that Appellant serve one year of incarceration before re-
applying for probation. In this direct appeal, Appellant complains that he
should have rec eived full pro bation from the outse t.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
The proof shows that, on November 18, 1994, officers of the
Murfreesboro Police Department executed a search warrant on 539 East
Sevier Street, a residence operated by Appellant as a “good time” house. The
police recovered three grams of cocaine from behind a bathtub and found a
large qu antity of bee r, liquor, and soda in a refrigerato r with a m aster lock .
Appellant stated that he sold the beer for $1.50 each.
On May 1, 1995, a Rutherford County Grand Jury indicted Appellant for
possession of over 0.5 grams of a Schedule II controlled substance with intent
to sell or de liver in violation o f Tenn essee Code Annota ted Sec tion 39-1 7-417.
He was also indicted for storage of intoxicating liquors for the purpose of
resale, a violation of Tennessee Code Annotated Section 39-17-713. On June
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9, 1995, Appellant pled guilty to the reduced charge of possession of less than
0.5 gram s of a Sc hedule II controlled s ubstan ce with inte nt to sell or de liver.
The second count of the indictment was dismissed. As part of the plea
agreem ent, App ellant rece ived a six-ye ar sente nce in the county w orkhou se.
As sta ted pre viously , the trial c ourt de nied A ppella nt’s pe tition for a fully
suspended sentence and ordered one year of incarceration.
II. SENTENCING
Wh en an app eal challenges the length, range , or manne r of service of a
sentence, this Court conducts a de novo review with a presumption that the
determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d)
(1990). However, this presumption of correctness is “conditioned upon the
affirmative showing that the trial court in the record considered the sentencing
principles and a ll relevant facts and circum stances.” State v. Ashby, 823
S.W .2d 166 , 169 (T enn. 19 91). In the e vent that the record fa ils to
demon strate such co nsideration, review o f the sentence is purely de novo . Id.If appellate review reflects that the trial court properly considered all relevant
factors and its finding s of fac t are ad equa tely sup ported by the re cord, th is
Court must affirm the sentence, “even if we would have preferred a different
result.” State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). In
conducting a review, this Court must consider the evidence, the presentence
report, the sentencing principles, the arguments of counsel, the nature and
charac ter of the offe nse, m itigating an d enha ncem ent factors , any statem ents
made by the de fendan t, and the p otential for re habilitation o r treatme nt. State
v. Holland, 860 S.W .2d 53, 60 (T enn. Crim. A pp. 1993). T he defend ant bears
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the burd en of sho wing the improp riety of the se ntence impos ed. State v.
Gregory, 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).
We note initially that the trial judge did not ad dress on the record
Appellant’s en titlement to the presu mption favoring a non-incarce rative
sentence. See, Tenn. Code Ann. Sec. 40-35-102(6). For this reason, our
review of Appe llant’s sentence w ill be purely de novo.
A. MANNER OF SERVICE
Appellant first argues that the trial court erred in denying his petition for
a suspended sentence. The Tennessee Criminal Sentencing Reform Act of
1989 recognizes the limited capacity of state prisons and mandates that
“convicted felons committing the most severe offenses, possessing criminal
histories evincing a clear disregard for the laws and morals of society, and
evincing fa ilure of pas t efforts of reh abilitation sh all be given first priority
regarding sentencing involving incarceration.” Tenn. Code Ann. § 40-35-
102(5 ). A defe ndan t who d oes n ot qua lify as su ch an d who is an es pecia lly
mitigated or standard offender of a Class C, D, or E felony is “presumed to be
a favorable candidate for sentencing options in the absence of evidence to the
contrary.” Id. § 40-35-102(6). A sentencing court may then only deny
alternative sentencing when presented with sufficient evidence to overcome
the pres umptio n. State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91). A
denia l of altern ative se ntenc ing in th e face of the s tatutor y presu mptio n sho uld
be based on the following considerations:
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(A) Con fineme nt is nece ssary to p rotect soc iety
by restraining a defendant who has a long history of
criminal c onduc t;
(B) Co nfinem ent is n eces sary to avoid
depreciating the seriousness of the offense or
confineme nt is particularly suited to provide an effective
deterrence to o thers likely to comm it similar offenses; or
(C) Measures less restrictive than confinement
have fr eque ntly or re cently b een a pplied unsu cces sfully
to the defe ndant.
Tenn. C ode Ann . § 40-35-103 (1).
As a Range I standard offender convicted of a Class C felony, Appellant
is entitled to th e statutorily-m andate d presu mption of alternative senten cing.
While failing to make specific reference to this presumption during the
suspe nded s entenc e hearin g, the trial cou rt did point o ut that its dec ision to
deny A ppella nt’s pe tition wa s bas ed up on his prior re cord a nd the fact tha t this
offense occurred during a probationary period. As stated previously, when
measures less restrictive than confinement have been recently applied without
success, a sentencing court may order incarceration in the face of an
alternative s entenc e presu mption . See id. (C). Here , we believe that,
because Appellant committed this cocaine possession offense while on
probation from another cocaine possession offense, a sentence involving
confinem ent is warra nted. See, e.g., State v. Bowman, No. 01C01-9412-CC-
00436 , 1995 W L 5947 18, at *4 (T enn. C rim. App . Oct. 6, 19 95), perm. app.
denied, (Tenn . Mar. 4, 19 96). In light of A ppellant’s failure to res pond to
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proba tion in th e pas t, a pun ishm ent les s restric tive than confin eme nt wou ld
only serve to give him the opportunity to continue his pattern of unlawful
behavio r. See State v. Windham, No. 03C01-9503-CR-00103, 1996 WL
134955 , at *2 (Tenn. C rim. App. Ma r. 27, 1996).
B. REAPPLICATION FOR PROBATION
Appellant also a rgues that the trial cou rt erred in ordering tha t he serve
one year of his sentence before re-applying for probation. Appellant maintains
that the trial court ordered a sentence of split confinement, a one year
sentence of confinement followed by a period of probation, and that, under
Tennessee Code Annotated Section 40-35-306(c), he should have the
opportu nity to re-ap ply for a sus pende d sente nce eve ry two mo nths. W e
disagree. The record clearly reflects that the trial court rejected any form of
alternative sentence and, pursuant to the plea agreement, sentenced
Appellant to a six-year period of confinement in the county workhouse.1 The
trial cou rt in no w ay ass ured A ppella nt that th e bala nce o f his sen tence would
be suspended following successful completion of his first year of incarceration
-- only that he was required to serve one year before he would again have the
opportunity to apply for probation.2 Because Appellant wa s ordered to se rve
his sentence in the county workhouse, the trial court retained full jurisdiction
over the m anner o f service of h is senten ce. See Tenn. Code Ann. § 40-35-
212(c ). Given this sta tutory p rovision , we be lieve tha t the trial c ourt wa s within
1
While the judgment form indicates that Appellant is to serve his sentence in the Tennessee
Department of Correction, the transcript of the suspended sentence hearing as well as the plea
agreement show that Appellant is to serve his sentence in the county workhouse.
2
Section 4 0-35-30 6(c) app lies only to sen tences involving sp lit confinem ent. Bec ause A ppellant
did not receive a sentence involving split confinement, Section 40-35-306(c) is inapplicable, and
Appellan t’s claim is w ithout m erit.
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its discretion in requiring A ppellant to serve o ne year of his sen tence before
re-applyin g for prob ation. See, e.g., State v. Steward , No. 02C01-9307-CC-
00161 , 1995 W L 2760 03, at *1 n .1 (Ten n. Crim. A pp. May 10, 199 5), perm.
app. denied, (Tenn. Oc t. 14, 1996).
Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
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DAVID H. WELLES, JUDGE
___________________________________
WILLIAM M. BARKER, JUDGE
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