State v. Marsha Arnold ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1999 SESSION
May 18, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9809-CC-00382
Appellee, )
) COFFEE COUNTY
VS. )
) HON. GERALD L. EWELL, SR.,
MARSHA ARNOLD, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT S. PETERS PAUL G. SUMMERS
100 First Ave., Southwest Attorney General & Reporter
Winchester, TN 37398
CLINTON J. MORGAN
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
CHARLES M. LAYNE
District Attorney General
KENNETH SHELTON, JR.
Asst. District Attorney General
P.O. Box 147
Manchester, TN 37349
OPINION FILED:____________________
AFFIRMED AND REMANDED FOR CORRECTION OF THE RECORD
JOHN H. PEAY,
Judge
OPINION
The defendant pled guilty to possession of marijuana with intent to sell or
deliver and was sentenced to one month in county jail and one year, eleven months in
the community corrections program. She now appeals, arguing that the trial court
imposed an excessive sentence and erred in denying a full alternative sentence. We
affirm the trial court’s sentencing order on this count.
The defendant was charged with possession of over 14.175 grams of
marijuana with intent to sell or deliver, a Class E felony. See T.C.A. § 39-17-
417(g)(1)(Supp. 1998).1 After plea negotiations, the State recommended a sentence of
deferred judgment for one year and 100 hours of public service work in exchange for a
guilty plea. The trial court declined to accept this plea agreement. After further
negotiations, the State recommended a one year sentence of probation, 200 hours of
public service work, and the mandatory minimum fine in exchange for a guilty plea.
Again, the trial court rejected the plea agreement. The defendant then pled guilty and
submitted the case to the trial court for sentencing.
At the sentencing hearing, the defendant maintained that the marijuana
found at her house was for her personal use. She also testified that she bought a rather
large quantity of marijuana so she could share some with her friends because it was
cheaper to buy in bulk. To that end, she testified that she used the baggies and scales
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The defe nda nt wa s also char ged with p oss ess ing dr ug pa raph erna lia, bu t the d ispo sition of this
count is unclear. The document reflecting the defendant’s guilty plea indicates that on May 19, 1998,
the defendant pled guilty only to possession of marijuana with intent to sell or deliver, and the record
contains an order dated May 26, 1998, dismissing the possession of drug paraphernalia count because
of the defendant’s guilty plea to the drug possession charge. The presentence report, however, states
that the de fendan t pled guilty to both counts , and the trial c ourt sen tenced the defe ndant on both cou nts.
The record does not explain this discrepancy, but because the defendant does not question her
conviction or sentence for possession of drug paraphernalia, neither shall we.
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that were found in her house in order to distribute the proper amount of marijuana to her
friends and ensure she was not “being cheated.” Moreover, she testified that she bought
the drugs from a college student named Edward Johnson, but she could not remember
his phone number. In her statement contained in the presentence report, she stated, “I
would consider helping get the person I bought the marijuana from, [i]f the D.A.’s office
will help me.”
At the conclusion of the evidence, the trial court told the defendant, “It’s
apparent to the Court that you are a drug seller and distributor. Although you claim that
the marijuana was for your own personal use, the presence of scales and plastic bags
convinces the Court that you lie in this regard.” The trial court also found that the
defendant did not cooperate with the presentence officer in making a forthright statement
or truthfully disclosing the name of the person from whom she bought the marijuana. The
trial court found no enhancing factors, but stated that this type of offense was “rampant”
in Coffee County and needed to be discouraged and that the defendant has a “823 S.W.2d 166,
169 (Tenn. 1991).
In determining the length of a sentence, T.C.A. § 40-35-210(c) provides that
for Class E felonies, such as the one in the instant case, the minimum sentence within
the range is the presumptive sentence. If there are enhancing and mitigating factors, the
court must start at the minimum sentence in the range and enhance the sentence as
appropriate for the enhancement factors and then reduce the sentence within the range
as appropriate for the mitigating factors. If there are no mitigating factors, the court may
set the sentence above the minimum in that range but still within the range. The weight
to be given each factor is left to the discretion of the trial judge. State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992).
Here, because the defendant was sentenced to a Class E felony as a
Range I standard offender, her possible sentence ranged from one to two years.
Although the trial court found no statutory enhancing factors, the presentence report
reflects that the defendant admits to “casual use” of marijuana since 1970. The
defendant also testified that at least some of the marijuana found in her house was for
her own use. Because the defendant admits to prior criminal activity, her sentence
should be enhanced under T.C.A. § 40-35-114(1). We agree with the trial court that one
mitigating factor is applicable, that is, that the defendant’s behavior neither caused nor
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threatened serious bodily injury. See T.C.A. § 40-35-113(1). Even so, it is obvious that
the trial court gave this mitigating factor little weight, as do we. Thus, balancing the
enhancing factor against the mitigating factor, a sentence of two years seems appropriate
under the circumstances of this case.
In determining whether the defendant should be incarcerated, the guidelines
enumerated in T.C.A. § 40-35-103 should be considered. These guidelines include the
need “to protect society by restraining a defendant who has a long history of criminal
conduct,” the need “to avoid depreciating the seriousness of the offense,” the
determination that “confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses,” or the determination that “measures less
restrictive than confinement have frequently or recently been applied unsuccessfully to
the defendant.” T.C.A. § 40-35-103(1).
Here, the trial court judge specifically stated, “I find that a sentence to
confinement, partial confinement, is necessary to avoid depreciating the seriousness of
this offense . . . .” The defendant correctly observes that the State failed to prove the
need for deterrence, but she fails to recognize that the trial court judge specifically found
that she was untruthful when she insisted that the drugs found in her home were for her
personal use and that she lied about the identity of her drug supplier. Because
untruthfulness reflects upon a defendant’s potential for rehabilitation and is itself a valid
reason for denying probation, the trial court was justified in imposing short term
incarceration in combination with a community corrections sentence. See State v.
Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994).
Finding no merit to the defendant’s arguments, the sentence imposed by
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the trial court is affirmed. However, we remand to the trial court to correct the record
regarding the disposition of Count II.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID H. WELLES, Judge
______________________________
J. CURWOOD WITT, JR., Judge
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