State v. Michael Boyland ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JUNE 1997 SESSION July 2, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9607-CR-00232
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
) JUDGE
MICHAEL A. BOYLAND, )
) (Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
CRAIG HALL (at trial) JOHN KNOX WALKUP
100 North Main, Ste. 1928 Attorney General & Reporter
Memphis, TN 38103
SARAH M. BRANCH
BRETT B. STEIN (on appeal) Assistant Attorney General
100 North Main, Ste. 3102 450 James Robertson Parkway
Memphis, TN 38103 Nashville, Tennessee 37243-0493
WILLIAM L. GIBBONS
District Attorney General
STEPHEN HALL
Assistant District Attorney General
201 Poplar Ave. Ste. 301
Memphis, Tennessee 38103-1947
OPINION FILED: __________________
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Michael A. Boyland, pled guilty to possession of cocaine over
0.5 grams with intent to sell, a Class B felony. He was sentenced as a Range I
Standard Offender to nine years in the Department of Correction and fined $2,000.
The sole issue for review is whether the trial court erred in denying alternative
sentencing. We AFFIRM the judgment of the trial court.
FACTS
Defendant pled guilty to possession of cocaine over 0.5 grams with intent to
sell and agreed to a nine-year sentence; however, he petitioned for alternative
sentencing. At the sentencing hearing, defendant testified regarding the
circumstances of the offense. In 1992, he returned to Tennessee from Illinois and
did not have a job. In less than three months, he was involved with the “wrong
crowd” and began selling drugs. On or about November 9, 1994, the Shelby County
Police Department raided defendant’s home and found over twenty-six (26) grams of
cocaine and $7,800 in cash. Defendant’s wife and daughter resided with him at the
time of the arrest.
Defendant testified that subsequent to his arrest, he had gained employment
with Brewer Landscaping, gotten married, and had another child. Although his wife
is employed, defendant stated that his income is necessary to sustain his family.
Defendant’s testimony also revealed he had one prior drug-related conviction
for possession of marijuana. He was sentenced to eleven (11) months and twenty-
nine (29) days and received probation.
The state did not offer any proof.
Based on the testimony, the trial court found that defendant did not appreciate
the seriousness of the offense and further stressed the need for deterrence in
denying defendant’s petition for alternative sentencing.
I.
2
The Community Corrections Act establishes a program of community-based
alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann. §
40-36-103. A defendant is eligible for participation in a community corrections
program if the defendant satisfies several minimum eligibility criteria set forth at
Tenn. Code Ann. § 40-36-106(a)(1)-(7). The Act does not provide that all offenders
who meet these requirements are entitled to such relief. State v. Grandberry, 803
S.W.2d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn. Code Ann. § 40-36-
106(d) provides that the eligibility criteria shall be interpreted as minimum standards
to guide the court's determination of eligibility of offenders under the Act.
Under the Criminal Sentencing Reform Act of 1989, trial judges are
encouraged to use alternatives to incarceration. 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 options in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). Obviously, Class A and B felons have
no such presumption.
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A court may also consider the mitigating and enhancing factors set forth in
Tenn. Code Ann. § 40-35-113 and 114 as they are relevant to the § 40-35-103
considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d
435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the
defendant’s potential or lack of potential for rehabilitation when determining if an
alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State
v. Boston, 938 S.W.2d at 438.
3
II.
The defendant in this case was convicted of a Class B felony and is not
afforded a presumption in favor of alternative sentencing. He is also ineligible for
probation under Tenn. Code Ann. § 40-35-303(a) since his sentence was over eight
years. The proof showed that defendant had a prior drug-related offense. His prior
alternative sentence for possession of drugs did not deter him from further illegal
drug activity. The instant drug conviction involved over twenty-six (26) grams of
cocaine, and the police found over $7,800 in cash at the defendant’s home.
Obviously, the defendant was involved in substantial drug sales.
The trial judge expressed concern with defendant’s attitude toward the
seriousness of the offense and the amount of cocaine and cash money involved.
He determined that incarceration was necessary to avoid depreciating the
seriousness of the offense and to serve as a deterrent. See State v. Dykes, 803
S.W.2d 250, 260 (Tenn. Crim. App. 1990). The trial judge properly considered
appropriate sentencing principles, and his findings are entitled to a presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The trial court did
not err in denying alternative sentencing.
The judgment of the trial court is AFFIRMED.
________________________
JOE G. RILEY, JUDGE
CONCUR:
___________________________
PAUL G. SUMMERS, JUDGE
____________________________
DAVID H. WELLES, JUDGE
4