State of Tennessee v. Cherie Mae Phillips ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 24, 2004
STATE OF TENNESSEE v. CHERIE MAE PHILLIPS1
Direct Appeal from the Criminal Court for Knox County
No. 75036 Richard R. Baumgartner, Judge
No. E2003-01897-CCA-R3-CD
April 8, 2004
The appellant, Cherie Mae Phillips, pled guilty in the Knox County Criminal Court to aggravated
assault. Pursuant to the plea agreement, she received a sentence of three years incarceration in the
Tennessee Department of Correction. On appeal, the appellant argues that the trial court erred in
denying alternative sentencing. Upon our review of the record and the parties’ briefs, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN
E. GLENN , JJ., joined.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Cherie Mae Phillips.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The record reflects that on November 11, 2001, the appellant assaulted a woman outside a
bar in Knoxville and stabbed her six or seven times. She was indicted by the Knox County Grand
Jury on charges of aggravated assault and ultimately pled guilty to that offense. The plea agreement
provided that the appellant would receive a three-year sentence, with the trial court to determine the
manner of service of the sentence. In May 2002, while on bond for the aggravated assault
1
The indictment also reflects the alias “Cherie Mae Bell.”
conviction, the appellant was arrested on drug charges which resulted in her pleading guilty to
possession of cocaine with the intent to sell.2
On July 18, 2003, a sentencing hearing was held on the aggravated assault conviction. At
the hearing, the appellant asked for “enhanced probation.” The appellant informed the court that she
had made arrangements to join an “inpatient rehab” program should she receive “enhanced
probation.”
After examining the appellant’s presentence report, the trial court noted that the appellant had
three prior misdemeanor convictions. Additionally, the court was concerned about the circumstances
of the offense and the appellant’s reoffending while on bond. Specifically, the trial court stated:
I think you are a dangerous offender, ma’am. Anybody who would,
regardless of the circumstances, stab someone seven times with a
knife is considered, in my judgment, to be a dangerous person. . . .
I’m just saying that kind of conduct concerns me greatly.
It also concerns me that obviously you have a serious drug problem.
Because of the nature of your offenses, we cannot take you on the
only program that I think would provide you with any reasonable
degree of success from a treatment program because you’re a violent
offender, and the fact that you picked up this additional charge, your
history of drug use, and – the three convictions and the fact that you
picked up this last charge while you were on, in fact, bond for the
previous charge convinces me that you’ve earned your right in the
penitentiary. Your application for probation is denied.
On appeal, the appellant contests the trial court’s ruling.
II. Analysis
Appellate review of the manner of service of a sentence is de novo. See Tenn. Code Ann.
§ 40-35-401(d) (1997). In conducting its de novo review, this court considers the following factors:
(1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the parties
on enhancement and mitigating factors; (6) any statement by the defendant in her own behalf; and
(7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210
(1997 and 2003); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the
appellant to demonstrate the impropriety of her sentence. See Tenn. Code Ann. § 40-35-401,
2
For the possession conviction, the appellant received an eight-year sentence which was to be served
consecutively to the sentence for aggravated assault.
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Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately
considered sentencing principles and all relevant facts and circumstances, this court will accord the
trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169. As
there is no indication from the record that the trial court considered the sentencing principles, we will
review the court’s determinations purely de novo.
We note that an appellant is eligible for alternative sentencing if the sentence actually
imposed is eight years or less. See Tenn. Code Ann. § 40-35-303(a) (1997). Moreover, an appellant
who is an especially mitigated or standard offender convicted of a Class C, D, or E felony is
presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-
102(6).
In the instant case, the record reflects that appellant is a standard Range I offender convicted
of a Class C felony; therefore, she is presumed to be a favorable candidate for alternative sentencing.
However, this presumption may be rebutted by “evidence to the contrary.” State v. Zeolia, 928
S.W.2d 457, 461 (Tenn. Crim. App. 1996). The following sentencing considerations, set forth in
Tennessee Code Annotated section 40-35-103(1), may constitute “evidence to the contrary”:
(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.
Zeolia, 928 S.W.2d at 461.
As we earlier noted, one of the considerations in our de novo review is the nature and
characteristics of the criminal conduct involved. However, the appellant has failed to include the
transcript of the guilty plea hearing in the record for our review. This court has previously noted,
“A guilty plea hearing often provides an important occasion for the state to present its proof, and
thus, it is the equivalent of a trial and should be made part of the record on appeal in order to comply
with [Tennessee Code Annotated section] 40-35-210.” State v. Bobby Blair, No. M2002-02376-
CCA-R3-CD, 2003 WL 22888924, at *2 (Tenn. Crim. App. at Nashville, Dec. 5, 2003), application
for perm. to appeal filed, (Feb. 2, 2004); see also State v. Shatha Lissiter Jones, No. W2002-02697-
CCA-R3-CD, 2003 WL 21644345, at *3 (Tenn. Crim. App. at Jackson, July 14, 2003). Accordingly,
the appellant’s “failure to include the transcript of the guilty plea hearing in the record prohibits the
court’s conducting a full de novo review of the sentence under [Tennessee Code Annotated section]
40-35-210(b).” Jones, No. W2002-02697-CCA-R3-CD, 2003 WL 21644345, at *3. Regardless,
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from the testimony at the sentencing hearing, we conclude that the trial court did not err in denying
the appellant any form of alternative sentencing.
First, the trial court noted the appellant’s history of three misdemeanor offenses and her
history of drug problems. While this history is not overwhelming, it has spanned a number of years.
We conclude that this is sufficient criminal history to overcome the presumption in favor of
alternative sentencing. See State v. Jesse Tuggle, No. M2002-02426-CCA-R3-CD, 2003 WL
23099750, at *8 (Tenn. Crim. App. at Nashville, Dec. 30, 2003), application for perm. to appeal
filed, (Feb. 27, 2004).
Additionally, we note that the trial court refused to grant an alternative sentence because the
appellant stabbed the victim seven times. We interpret this ruling as a determination that
confinement was necessary to avoid depreciating the seriousness of the offense. This court has
previously stated that the nature and circumstances underlying the criminal conduct may alone give
rise to the denial of probation. See Tenn. Code Ann. § 40-35-210(b)(4); State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). When imposing confinement based upon the seriousness
of the offense, the trial court must first determine if “‘the circumstances of the offense as committed
[are] especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive
or exaggerated degree.’” Zeolia, 928 S.W.2d at 462 (quoting State v. Bingham, 910 S.W.2d 448,
454 (Tenn. Crim. App. 1995)). We conclude that given the multiple infliction of wounds, the trial
court was arguably justified in finding that the offense was especially violent.
Moreover, the trial court remarked that it was troubled by the appellant’s commission of a
felony while on bond for the instant offense. Implicitly, the trial court determined that the appellant
had poor potential for rehabilitation, a valid concern in determining whether to grant alternative
sentencing. See Tenn. Code Ann. § 40-35-103(5). Further, our review of the record reveals that the
appellant had received a suspended sentence for each of her prior misdemeanor convictions.
Notably, for her first misdemeanor conviction, she received diversion, which was later revoked.
Regardless of the previous largesse of the court, she has continued to engage in criminal conduct,
evidencing that measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the appellant. Based upon the foregoing, we conclude that the appellant’s
continued offending demonstrates that her chances for rehabilitation are poor. See State v. Cindy
L. Holder, No. E2000-01191-CCA-R3-CD, 2003 WL 367244, at *5 (Tenn. Crim. App. at Knoxville,
Feb. 21, 2003).
III. Conclusion
Finding no error, the judgment of the trial court is affirmed.
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NORMA McGEE OGLE, JUDGE
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