State v. Wembley ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMB ER SESSION, 1998 January 15, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9803-CC-00088
)
Appellee, )
)
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.
RUSSELL WEMBLEY, ) JUDGE
)
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF BLOUNT COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
GERALD L. GULLEY, JR. JOHN KNOX WALKUP
P.O. Box 1708 Attorney General and Reporter
Knoxville, TN 37901-1708
CLINTON J. MORGAN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
MIKE FLYNN
District Attorney General
PHILIP MORTON
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defenda nt, Russell W embley, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate P roced ure. H e was convic ted, up on his
plea of guilty, of one count of delivery of cocaine, a Class B felony. The agreed
sentence was eight years as a Range I standard offender. The manner of
service of the sentence was left to the discretion of the trial judge. After
conducting a sentencing hearing, the trial judge ordered tha t the Defenda nt serve
one year in the county jail, with the ba lance to b e served in the com munity
corrections program. The Defendant appeals from the trial judge’s order that one
year of his sentence be served in confinement. We affirm the judgment of the
trial court.
When an accused challenges the length, ran ge, or m anner o f service of a
sentence, this Court has a duty to conduct a de novo review of th e sente nce with
a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 4 0-35-40 1(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 circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and sentencing hearing; (b) the
presentence report; (c) the principles of s entenc ing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
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involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement
that the defendant made regarding sentencing; and (g) the potential or lack of
potential for reha bilitation or trea tment. State v. S mith, 735 S.W.2d 859, 863
(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
This charge resulted from the Defendant’s sale of cocaine to a confidential
informant for the s um o f eighty d ollars. A lthoug h a tran script o f the gu ilty plea
proceeding is not included in the record, the drug transaction was recorded, and
the State introduced a transcript of the conversation between the Defendant and
the confidential informant at the sentencing hearing.
The presen tence re port reflects that at the time of sentencing, the
Defendant was twenty-six years old, single, and a high school graduate. He
reported that he had completed some college work and had attended a business
scho ol. He lives with his girlfriend, and they have two daughters. He reported
that he has four children with two previous girlfriends and that he regularly
contributes to their support. The presentence report further reflected that the
Defendant worked a construction job during the day and also worked an evening
shift at a Ha rdee’s re stauran t.
The Defe ndan t’s record includes convictions for misdemeanor assault and
vandalism in Bloun t Coun ty, Tenn essee in 1992, fo r which th e Defe ndant
received suspended sentences and probation. In 1995 the Defendant received
three felony convictions in Ohio. According to the judgment of conviction, these
offenses were carrying a loaded, concealed weapon; aggravated trafficking
(appare ntly in drugs); and trafficking in food stamps. It appears that the
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Defendant received three co ncurren t eighteen -month sente nces for thes e Oh io
felonies. The pr esente nce rep ort further reflects that the Defendant
acknowledged he has an alcohol problem. He also acknowledged that he had
used marijuana regularly in the past, although he reported that he had not used
marijuana for about two months. He denied the use of any other drugs. A drug
screen performed as a part of the presentence investigation was negative. The
Defendant declined to testify at his sentencing hearing, and the only evidence
submitted was a letter from a poten tial em ployer stating that the Defe ndan t could
become employed with a janitorial and carpet-cleaning service five nights a week.
On a ppea l, the Defendant argues that the trial judge erred o r abus ed his
discretion by requiring him to serve one year of his sentence in the coun ty jail.
He argues that he s hould have re ceived proba tion or comm unity corrections
without an y confinem ent in the c ounty jail.
W hen determining whether to grant probation, the trial judge must consider
the nature and circumstances of the offense; the defendant’s criminal record,
background, social history, and present condition, including physical and mental
condition; the deter rent effect on other criminal activity; and the likelihood that
probation is in the bes t interests o f both the p ublic and the defen dant. See Stiller
v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The burden is on the defend ant to
show that the sentenc e is imprope r and that proba tion is appropriate. State v.
Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).
The State suggests that the offense of selling drugs is “deterrable per se,
and therefo re dete rrence is a facto r that m ay be c onsid ered on the question of
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probatio n.” To ad vance this argument, the State relies upon State v. Dykes, 803
S.W.2d 250, 260 (Tenn. Crim. App. 1990), and other cases which refer to drug
crimes as being “deterrable per se.” While we agree that deterren ce is always
a factor that can be considered on the question of probation, we do not read
Dykes or any other case as holding that deterrence alone is sufficient to sup port
a denial of probation for any crime involving the sale or delivery of cocaine or
other drugs. Probation must be automatically considered by the trial court as a
sentencing alterna tive for e ligible defendants. Tenn. Code Ann. § 40-3 5-303(b).
“A defendant shall be eligible for probation under the provis ions of this chapter
if the sentence actually imposed upon such defendant is eight (8) years or less
. . . .” Id. § 40-35-303(a). It cannot be said that deterrence “per se” will always
support denial of probation in sen tencing for a crim e involving the sale or d elivery
of drugs . State v. Ashby, 823 S.W .2d 166, 169 -70 (Tenn . 1991).
Because the Defendant was convicted of a Class B felony, there is no
presumption that he is a suitable candidate for alternative sentencing options as
afforded those convicted of a C lass C, D , or E felon y. See Tenn . Code Ann. §
40-35-102(6). Furthermore, as we have stated, the burden of establishing
suitability for probation rests with the Defendant. Tenn. Code Ann. § 40-35-
303(b). Because the Defendant chose not to testify at his sentencing hearing
and presented no evidence other than a letter from a prospective employer, the
trial judge was left primarily to consider information contained in the presentence
report. Although the Defendant appeared to have a somewhat favorable
employm ent record, h is history of crim inal cond uct is not ins ignificant. We
believe the trial judge properly acted within his discretionary authority by
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determining that the Defendant was not entitled to full probation and by ordering
that a por tion of his se ntence be serve d in confin emen t.
The judgment of the trial court is accordingly affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
___________________________________
L.T. LAFFERTY, SENIOR JUDGE
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