State v. Copeland ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE
May 13, 1997
MARCH 1997 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9605-CC-00196
) BLOUNT COUNTY
Appellee, )
) Hon. D. Kelly Thomas, Judge
VS. )
) (SENTENCING)
LISA GAYE COPELAND, ) No. C-8930 BELOW
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
STACEY D. NORDQUIST JOHN KNOX WALKUP
Assistant District Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37801 MERRILYN FEIRMAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
MICHAEL L. FLYNN
District Attorney General
EDWARD P. BAILEY, JR.
Assistant District Attorney General
363 Court Street
Maryville, TN 37804-5906
OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK,
Special Judge
1
OPINION
Defendant Lisa Copeland appeals as of right from the judgment of the trial
court ordering her to serve the sentenced imposed in this case consecutively to a
previous sentence imposed upon her in Sevier County, and denying her request for
probation. The decision of the trial court is affirmed.
The defendant is a divorced mother of three. She began using cocaine in
1992. Her job as a motel housekeeper did not provide enough income to support
her family and her daily cocaine habit. She lived with her parents but spent time
with a male co-defendant.
On December 15, 1994, defendant committed the offenses of aggravated
burglary and theft over $500 that are at issue in this case. On December 16, 1994
the defendant was arrested in Sevier County after committing a second aggravated
burglary there. She immediately admitted her involvement in both offenses.
On March 27, 1995, defendant pled guilty in Sevier County to aggravated
burglary. She was given credit for four months of time served and was placed on
three years supervised probation.
On July 25, 1995, defendant entered pleas of guilty in this case to
aggravated burglary, a Class C felony, and theft over $500.00, a Class E felony.
Under the terms of the plea agreement, defendant apparently agreed to a three-
year sentence for the aggravated burglary and a one-year sentence for the theft.
The sentences were run concurrent to one another. All other issues concerning
place and manner of service of her sentence were to be addressed at a later
sentencing hearing. She remained free on bond.
On July 31, 1995, defendant reported to the Blount County probation officer
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for a presentence interview. She tested positive for marijuana during that visit. The
officer also noted that she had already committed a prior technical violation of her
Sevier County probation by admitting use of marijuana in June 1995.
On November 5, 1995, defendant was charged with misdemeanor theft in
Knox County. On November 6 she pled guilty and was placed on probation for
eleven months twenty-nine days. On December 5, 1995, defendant was charged
with another misdemeanor theft in Knox County. On December 8 she received
another suspended sentence of eleven months, twenty-nine days. Following these
convictions a probation violation warrant was issued in Sevier County.
The sentencing hearing in this case was conducted on January 2, 1996.
Defendant testified that all the offenses were committed to support her cocaine
addiction. She admitted that she had continued to use cocaine since the entry of
her plea in July 1995.
After hearing all the proof, the trial judge denied defendant’s request for
probation. She was ordered to serve one year in the Blount County Jail followed by
two years in the Community Corrections Program. Her sentences were run
consecutively to the previously-imposed Sevier County sentence for aggravated
burglary.
When a defendant complains of her sentence, we conduct a de novo review
with a presumption of correctness of the findings of the trial court. Tenn. Code Ann.
§40-35-401(d). This presumption is conditioned upon an affirmative showing in the
record that the trial court considered the sentencing principles and all relevant facts
and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However,
the burden of showing that the sentence was improper is upon the appealing party.
Tenn. Code Ann. §40-35-401(d) Sentencing Commission Comments.
In determining an appropriate sentence, the court must consider the
3
following: (1) any evidence from the trial and sentencing hearing; (2) the
presentence report; (3) the principles of sentencing; (4) the nature and
characteristics of the offense; (5) information concerning the enhancing and
mitigating factors as found in Tenn. Code Ann. §§40-35-113 and 114; and (6) the
defendant’s statement in her own behalf concerning sentencing. Tenn. Code Ann.
§40-35-210(b).
I.
The defendant first argues that it was error for the trial court to deny
probation. As a person with no significant criminal history, convicted of a Class C
felony and a Class A misdemeanor, the defendant was “presumed to be a favorable
candidate for alternative sentencing”. Tenn. Code Ann. §40-35-102(6). However,
this presumption may be overcome by “evidence to the contrary”. Id.“Evidence to the contrary” may include a finding that one or more of the
following sentencing considerations apply:
(A) Confinement is necessary to protect society by
restraining a defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited to
provide an effective deterrence to others likely to commit similar
offenses; or
(C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant.
Tenn. Code Ann. §40-35-103(1). Insofar as they are relevant to the -103
considerations, courts may also apply the mitigating or enhancing factors set forth
in Tenn. Code Ann. §§40-35-113 and 114. See Tenn. Code Ann. §40-35-210(b)(5);
State v. Lloyd Mills Matthews, Jr., No. 03C01-9505-CR-00153 (Tenn. Crim. App.,
Knoxville, May 1, 1996). Finally, Tenn. Code Ann. §40-35-103(5) provides that in
4
determining whether an alternative sentence is appropriate, courts should consider
the defendant’s potential or lack of potential for rehabilitation.
In this case, the trial court gave the following reasons for denying alternative
sentencing: (1) the defendant has a history of other convictions and criminal
activities; and (2) the defendant has frequently and recently been unsuccessful in
completing probation, making the potential for rehabilitation poor. These reasons
are supported by the record.
Defendant has acknowledged a lengthy history of illegal drug use. She
testified at her sentencing hearing that during the one-year period before the
commission of this offense she spent at least sixty dollars ($60.00) per day on
cocaine for her personal use. In her presentence report interview she stated that
for a year and a half she “shot up” $300.00 to $400.00 per day of cocaine. She also
acknowledged using marijuana “a couple of times a week” since she was
seventeen. However, she refused to disclose the source of her supply.
Additionally, while this case was pending defendant showed no greater
willingness to follow the law. While on bond for the instant offenses, and on
probation from the Sevier County aggravated burglary, the defendant committed two
additional acts of theft, for which she has now pled guilty. She continued to use
drugs. Thus measures less restrictive than incarceration had recently been
unsuccessful. Defendant did not take full responsibility for her conduct, blaming her
boyfriends for causing her problems. And although she indicated to the court that
she desired drug treatment, she stated in her presentence interview that she did not
need treatment. She had not maintained employment to provide for her children.
Defendant did not show her suitability for probation. The trial court acted
within its discretion in denying probation. This issue is without merit.
5
II.
Defendant next contests the trial court’s judgment that the sentences in this
case should be run consecutively to the sentence in the Sevier County case. We
note that Rule 32(c)(2), Tenn. R. Crim. P. gives discretion to the trial court to impose
consecutive sentences when a defendant has “additional sentences not yet fully
served.” This court has previously held that the exercise of discretion under Rule
32(c)(2) essentially involves the consideration of the consecutive sentencing criteria
provided in T.C.A. §40-35-115(b). See State v. Thomas Edward Capps, No.
01C01-9506-CC-00164 (Tenn. Crim. App., Nashville, February 29, 1996).
The trial court found that the defendant qualified for consecutive sentences
based on the same factors he considered in denying probation: the commission and
conviction of additional offenses while on probation from the Sevier County case
and bond from the Blount County cases, and the defendant’s general criminal
behavior and drug use since she entered the guilty pleas in Sevier County and in
Blount County. The record supports this determination. Whether sentences are to
be served concurrently or consecutively is a matter addressed to the sound
discretion of the trial court. State v. James, 688 S.W.2d 463 (Tenn. Crim. App.
1984). Defendant in this case admits an extensive history of illegal drug use.
Extensive criminal history alone will support consecutive sentencing. See, e.g.,
State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994). This defendant
has now committed several crimes in order to obtain money to support her
extensive drug habit.
Finally, we believe that this history warrants the conclusion that the
consecutive sentences are necessary to protect the public from further misconduct
by the defendant, and reasonably reflect the severity of the offenses. See State v.
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Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). Based on these findings, we hold
that the trial court had an adequate basis for concluding that consecutive sentences
were necessary.
The judgment of the trial court is affirmed in all respects.
__________________________________
CORNELIA A. CLARK
SPECIAL JUDGE
CONCUR:
__________________________________
JOHN H. PEAY
JUDGE
__________________________________
PAUL G. SUMMERS
JUDGE
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IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9605-CC-00196
) BLOUNT COUNTY
Appellee, )
) Hon. D. Kelly Thomas, Judge
VS. )
) (SENTENCING)
LISA GAYE COPELAND, ) No. C-8930 BELOW
)
Appellant. )
JUDGMENT
Came the appellant, Lisa Gaye Copeland, by counsel and also came the
attorney general on behalf of the state, and this case was heard on the record on
appeal from the Criminal Court of Blount County; and upon consideration thereof,
this court is of the opinion that there is no reversible error in the judgment of the trial
court.
Our opinion is hereby incorporated in this judgment as if set out verbatim.
It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of Blount
County for execution of the judgment of that court and for collection of costs
accrued below.
It appears that the appellant is indigent. Costs of this appeal will be paid by
the State of Tennessee.
PER CURIAM
John H. Peay, Judge
Paul G. Summers, Judge
Cornelia A. Clark, Special Judge