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State v. Gina Merrell ( 1997 )


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  •            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON             FILED
    MARCH 1997 SESSION
    STATE OF TENNESSEE,           *      C.C.A. # 02C01-9604-CC-00131
    April 17, 1997
    Appellee,        *      HENRY COUNTY
    VS.                           *      Hon. Julian P. Guinn, Judge
    Cecil Crowson, Jr.
    GINA RAE MERRELL,             *      (Possession Controlled Substance with
    Appellate C ourt Clerk
    Intent to Deliver (2 counts); Possession
    Appellant.       *      Controlled Substance (1 count))
    For Appellant:                       For Appellee:
    W. Jeffrey Fagan                     Charles W. Burson
    Assistant Public Defender            Attorney General & Reporter
    117 Forrest Avenue North
    P.O. Box 663                         Georgia Blythe Felner
    Camden, TN 38320                     Counsel for the State
    450 James Robertson Parkway
    Nashville, TN 37243-0493
    Robert Gus Radford
    District Attorney General
    24th Judicial District
    P.O. Box 686
    Huntingdon, TN 38344
    Vicky Snyder
    Assistant District Attorney General
    P.O. Box 94
    Savannah, TN 38372
    OPINION FILED: __________________
    AFFIRMED
    GARY R. WADE, JUDGE
    OPINION
    The defendant, Gina Rae Merrell, was indicted in five counts for the
    following offenses: counts (1) and (2), possession of a Schedule IV drug with intent
    to deliver or sell; count (3), possession of a Schedule III drug with intent to deliver
    or sell; count (4), simple possession of a Schedule VI drug (marijuana) less than
    one-half ounce; and count (5), possession of over .5 grams Schedule II drug
    (cocaine) with intent to deliver or sell. She pled guilty to counts two, three, and four;
    the remaining counts were dismissed by the state. On counts two and three, the
    trial court imposed a sentence of two years; the defendant is to be placed on
    supervised probation after the service of six months. On count four, the trial court
    imposed a sentence of eleven months, twenty-nine days, with supervised probation
    after six months. All three sentences are to be served concurrently.
    In this direct appeal, the sole issue is whether the trial court erred by
    denying full probation. We find no error and affirm the judgment of the trial court.
    On April 14, 1995, police executed a search warrant at the home of
    Jerry Tharpe. The defendant was present. A pill bottle containing seven darvon
    tablets and twenty cylert tablets was inside her purse. The conviction in count three
    is based on the sixty-seven lortab tablets found inside a small black bag owned by
    the defendant. The conviction in count four is based on a marijuana cigarette in the
    same bag. 1
    At the sentencing hearing, the defense attorney informed the trial
    judge that the defendant had recently been released from the hospital where she
    1
    This information is based on the affidavits of complaint as set forth in the
    presentencing report. The guilty plea hearing transcript is not included in the record.
    2
    had been diagnosed as having depression. Defense counsel also informed the
    court that the defendant is required to undergo physical therapy three days a week
    for treatment for bone spurs. The trial judge questioned the defendant about
    whether she had a drug problem, noting the defendant had committed these
    offenses after going through drug rehabilitation. The defendant claimed that she
    was drug-free at the time of sentencing.
    The presentence report shows that the defendant has ten prior
    convictions in 1995 for violating the "bad check law." She has two driving on
    revoked license convictions, one which occurred in 1992 and one from 1995. She
    also has a 1992 conviction for unlawful use of a license and she has a 1991
    conviction for simple possession of marijuana.
    Twenty-six years of age at the time of sentencing, the defendant
    testified that she suffered from depression, asthma, arthritis, recurring cervical
    cancer, bursitis, and bone spurs in her feet. She admitted having a drug problem
    dating back to when she was eleven years old and had been through drug
    rehabilitation twice. The defendant has her GED and a limited work history, having
    primarily worked as a waitress at various places.
    When there is a challenge to the length, range, or manner of service of
    a sentence, it is the duty of this court to conduct a de novo review with a
    presumption that the determinations made by the trial court are correct. 
    Tenn. Code Ann. § 40-35-401
    (d). This presumption is "conditioned upon the 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). The
    3
    Sentencing Commission Comments provide that the burden is on the defendant to
    show the impropriety of the sentence.
    Our review requires an analysis of (1) the evidence, if any, received at
    the trial and sentencing hearing; (2) the presentence report; (3) the principles of
    sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
    nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
    any statements made by the defendant in his own behalf; and (7) the defendant's
    potential for rehabilitation or treatment. 
    Tenn. Code Ann. §§ 40-35-102
    , -103, and -
    210; State v. Smith, 
    735 S.W.2d 859
    , 863 (Tenn. Crim. App. 1987).
    Among the factors applicable to the defendant's application for
    probation are the circumstances of the offense, the defendant's criminal record,
    social history, and present condition, and the deterrent effect upon and best interest
    of the defendant and the public. State v. Grear, 
    568 S.W.2d 285
    , 286 (Tenn. 1978).
    Especially mitigated or standard offenders convicted of Class C, D, or
    E felonies are presumed to be favorable candidates "for alternative sentencing
    options in the absence of evidence to the contrary." 
    Tenn. Code Ann. § 40-35
    -
    102(6). With certain statutory exceptions, none of which apply here, probation must
    be automatically considered by the trial court if the sentence imposed is eight years
    or less. 
    Tenn. Code Ann. § 40-35-303
    (a), (b).
    Alternative sentencing issues must be determined by the facts and
    circumstances of the individual case. State v. Moss, 
    727 S.W.2d 229
    , 235 (Tenn.
    1986). “[E]ach case must be bottomed upon its own facts.” State v. Taylor, 
    744 S.W.2d 919
    , 922 (Tenn. Crim. App. 1987).
    4
    Here, the trial court did not state on the record the specific reasons for
    denying immediate probation; however, the defendant's lengthy prior record,
    although all for misdemeanors, clearly warranted a jail sentence. See 
    Tenn. Code Ann. § 40-35-103
    (1)(A). Despite her various prior convictions, the defendant has
    never been ordered to serve more than ten days in confinement, having always
    received sentences that were almost all entirely suspended. Two of the arrests for
    violating the bad check law and one arrest for driving on a revoked license occurred
    after the defendant was arrested and released on bond for the crimes in this case.
    These drug offenses occurred after the defendant had just completed a drug
    rehabilitation program. A period of "shock" confinement may be necessary to
    protect society from the defendant's propensity to repeatedly violate the law. 
    Tenn. Code Ann. § 40-35-103
    (1)(A).
    Significantly, in the presentence report, the defendant gave her version
    of events as follows:
    I [pled] guilty to [one] marijuana cig., the medication
    belonging to Baker child [sic] and the same pills my
    mother is serving time in prison for right now. She gave
    me the pills to keep for her appeal. I'm guilty of having
    [one] marijuana cig, and being in the wrong place at the
    wrong time.
    Lack of candor has traditionally been a valid reason for the denial of probation.
    State v. Poe, 
    614 S.W.2d 403
     (Tenn. Crim. App. 1981). "The opportunity for
    probation is always enhanced by the acceptance of responsibility in the honest
    recitation of both the facts underlying the offense and the circumstances under
    which the crime was committed." State v. Michelle Westfield, No. 03C01-9604-CC-
    00159, slip op. at 5 (Tenn. Crim. App., at Knoxville, March 4, 1997). Under these
    circumstances, we cannot conclude the trial court erred by ordering a period of
    confinement.
    5
    Accordingly, the judgment is affirmed.
    ________________________________________
    Gary R. Wade, Judge
    CONCUR:
    ___________________________
    Joe B. Jones, Presiding Judge
    ___________________________
    Curwood Witt, Judge
    6