State v. Sweat ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
SEPTEMBER SESSION, 1998 FILED
October 12, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) No. 03C01-9708-CC-00348
Appellee )
) BLOUNT COUNTY
vs. )
) Hon. D. Kelly Thomas, Jr., Judge
MELISSA ANN SWEAT, )
) (Sentencing)
Appellant )
For the Appellant: For the Appellee:
Shawn G. Graham John Knox Walkup
Asst. District Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37804 Todd R. Kelley
Assistant Attorney General
Criminal Justice Division
Raymond Mack Garner 425 Fifth Avenue North
District Public Defender 2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Michael L. Flynn
District Attorney General
Philip Morton
Asst. District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Melissa Ann Sweat, appeals the sentencing decision of the
Blount County Circuit Court following her April 1997 guilty plea to one count of
felony failure to appear. Specifically, she contends that the trial court erred by
ordering her to serve her eighteen month sentence in the Department of Correction
rather than granting her an alternative sentence.
After a review of the record, we affirm the judgment of the trial court.
Background
In 1995, the appellant was convicted of facilitation of aggravated burglary and
facilitation of theft, in case C-8870.1 Pursuant to a plea agreement, the trial court
imposed an effective sentence of two years. 2 The appellant was ordered to serve
twenty-eight days of periodic weekend confinement followed by placement in the
Community Corrections program for the remainder of her sentence.
On the specified report date of November 26, 1996, the appellant failed to
appear at the Blount County Jail for the purpose of serving her sentence in case C-
8870. As of this date, the appellant had completed seventeen days of her ordered
twenty-eight day period of confinement. As a result of this conduct, the appellant
was indicted for the offense of felony failure to appear. On April 29, 1997, the
appellant entered a guilty plea to the indicted charge. In May 1997, the trial court
revoked the appellant’s Community Corrections sentence in case C-8870 for failing
1
The appellant testified that these convictions arose from an event in 1994. She stated
that h er two co-d efen dan ts, Do nnie P arton and T imo thy Inm an, S r., bro ke in to he r neig hbo r’s
house . The ap pellant den ied any kn owledg e of her c o-defe ndants intent to burg larize the hou se.
However, she did admit that she assisted the two men after the crime occurred.
2
The p resente nce rep ort reflects an effec tive senten ce of two years for th ese off enses .
However, at the sentencing hearing, the appe llant testified that the court imposed an effective
sentence of two years, eleven months, and four days for these offenses.
2
to report to the jail and ordered confinement in the Department of Correction.3 As
part of her plea agreement in the instant case, the appellant agreed to an eighteen
month sentence as a range I offender with the sentence to run consecutive to the
sentence in case C-8870.4 Pursuant to the plea agreement, the manner of service
of this sentence, for “failure to appear,” was submitted to the trial court for its
determination.
The sentencing hearing was held on August 5, 1997. The presentence report
reveals that the appellant was, at the time of the sentencing hearing, twenty-six
years old and the mother of an eight year old child. The appellant has a prior
criminal history consisting of facilitation of aggravated burglary, facilitation of theft of
property, and simple possession of marijuana. The appellant voluntarily admitted to
her Community Corrections officer that she had used illegal drugs while under this
sentencing option.
The appellant presents a deteriorating medical history with a dismal
prognosis for recovery. She complains of cirrhosis of the liver, hepatitis C, asthma,
ITP bleeding disorder,5 and kidney diseases. She testified that she is not a
candidate for a liver transplant. She also indicated that she had made several
suicide attempts in the past. Additionally, the appellant admitted that she first began
drinking alcohol when she was twelve years old. She first used marijuana at the age
of fifteen and cocaine at the age of nineteen. In June 1995, the appellant began
receiving Social Security disability income which provides her only source of income.
3
The trial court’s revocation of the appellant’s Community Corrections sentence and
denial of a lternative se ntencing was rec ently affirm ed by a pa nel of this co urt. See State v.
Sweat, No. 03C01-9710-C C-00459 (Te nn. Crim. App. at Knoxville, Aug. 20, 1998).
4
It wou ld app ear th at the appe llant re ceive d little o r no b ene fit from her p lea ba rgain in this
case. Indeed, she agreed to be sentenced to consecutive sentences, Tenn. Code Ann. § 39-16-
602(f), and agreed to an eighteen month sentence when the maximum within the applicable range
is two years.
5
The appellant defined “ITP” as a condition where her platelet count drops from 258,000
to 7,000, causing her to bleed internally. She explained that the condition is due to her liver
“tricking” h er spleen into “thinking [she] nee d[s] m ore blood .”
3
Although the record indicates that the appellant had unsuccessfully participated in
two substance abuse programs, she maintains that she has been “clean” since
August 7, 1996.
In explanation of her failure to appear at the Blount County Jail in November
1996, the appellant testified, “[I]t was a bad judgment call on my part. I should have
called other parties instead of taking it upon myself to not come into jail.”
After considering the evidence presented, the trial court denied any form of
alternative sentencing. 6 Specifically, the trial court found that:
the likelihood of [the appellant] being rehabilitated was [not] very high
back in May or I wouldn’t have revoked her probation. She has been
clean for a year, which is admirable and very important. She has
made some payments or some payments have been made on her
behalf on restitution, and that is good. I think to serve a sentence like
this just on probation would depreciate the seriousness of the offense.
She does have a significant criminal history, not just the underlying
burglary and theft related offense, but others than that -- besides that,
and a long history of criminal behavior; that being drug abuse.
Analysis
The appellant challenges the trial court’s denial of any form of alternative
sentencing. Specifically, the appellant argues that she is a likely candidate for
rehabilitation, she does not have a lengthy criminal history, she is not a dangerous
or violent offender, and she was performing well on her Community Corrections
sentence.
6
Although the trial judge denied any form of alternative sentencing, the court remarked
that, when her sentence in case 8870 expires, “I will have her evaluated at that time for
Comm unity Corrections. . . . So, what she does between now and that date . . . will determine
whether or not she serves this sentence in confinement or if she’s allowed to serve it in the
com mu nity.” T his co nclu sion is inco rrec t. The trial co urt m ay not modify a sentence to the
Depa rtmen t of Corre ction onc e the judg men t becom es final. See Tenn. Code Ann. § 40-35-
212 (c); A dviso ry Com mis sion Com me nts, T enn . R. C rim . P. 35 . The cour t doe s, ho weve r, reta in
jurisdiction to modify any sentence which is to be served in the jail or workhouse and to m odify
any Department of Correction sentence during the time the defendant is being housed in a local
jail or work house awaiting tran sfer to the Depa rtmen t. See Tenn . Code A nn. § 40- 35-212 (c), -
212(d); Advisory Commission Comments, Tenn. R. Crim. P. 35.
4
When a challenge is made to the manner of service of a sentence, this court
conducts a de novo review with the presumption that the determination made by the
trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1997). This presumption only
applies, however, if the record demonstrates that the trial court properly considered
relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In the present case, because the trial court properly considered such principles, the
presumption of correctness applies. Moreover, the appellant bears the burden of
showing that the sentence imposed by the trial court is improper. See Tenn. Code
Ann. § 40-35-210(b)(3)(1997).
In determining the appellant's suitability for an alternative sentence, we first
determine whether the appellant is entitled to the statutory presumption that she is a
favorable candidate for alternative sentencing. State v. Bingham, 910 S.W.2d 448,
453 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995) (citing State v.
Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993)). To be eligible for the
statutory presumption, three requirements must be met. The appellant must be
convicted of a class C, D, or E felony. Tenn. Code Ann. § 40-35-102(6) (1997). She
must be sentenced as a mitigated or standard offender. Id. And, she must not have
a criminal history evincing either a "clear disregard for the laws and morals of
society" or "failure of past efforts at rehabilitation." Tenn. Code Ann. § 40-35-
102(5). Although the appellant is a range I standard offender of a class E felony,
she does not fall within the parameters of Tenn. Code Ann. § 40-35-102(5).
Therefore, she is not afforded the presumption favoring alternative sentencing.
Moreover, we conclude that, even if the appellant was entitled to the
presumption, the presumption is rebutted by "evidence to the contrary." Such
evidence may be found in the presentence report, the evidence presented by the
State, the testimony of the accused, or any other source provided that it is part of
the record. Bonestel, 871 S.W.2d at 167; see also Tenn. Code Ann. § 40-35-
5
102(6). Guidance as to what constitutes "evidence to the contrary" may be found in
the sentencing considerations codified in Tenn. Code Ann. § 40-35-103 (1997).
Bingham, 910 S.W.2d at 454 (citing Ashby, 823 S.W.2d at 169).
Although the appellant's prior criminal history only includes one conviction
that is unrelated to the present charge, the presentence report reflects that the
appellant has an extensive history of illegal substance abuse. Such abuse
constitutes a past history of criminal behavior. Tenn. Code Ann. § 40-35-103(1)(A).
Moreover, the appellant has previously been afforded the opportunity to participate
in alternative sentencing and, obviously, this attempt at rehabilitation failed. Tenn.
Code Ann. § 40-35-103(1)(C). Not only did the appellant fail to appear at the jail for
service of her sentence, but she also was delinquent in her court ordered restitution
payments, which were often paid by her mother, and she voluntarily admitted to
drug use while in the Community Corrections program. Finally, to not confine the
appellant for failing to appear for service of a sentence would only serve to
depreciate the seriousness of the offense by rendering her conviction thereon a
nullity. Tenn. Code Ann. § 40-35-103(1)(B).
Upon de novo review, we conclude that, because she does not fall within
the parameters of Tenn. Code Ann. § 40-35-102(5), the appellant is not entitled to
the presumption favoring alternative sentencing. Moreover, even if the presumption
applied, we conclude that confinement is justified based upon the appellant's history
of criminal conduct, her failure at past efforts of rehabilitation, and the seriousness
of the offense. Tenn. Code Ann. §§ 40-35-103(1)(A), -103(1)(B), -103(1)(C). The
appellant has failed to establish that the sentencing decision of the trial court is
improper. The record supports the trial court’s determination denying the appellant
a non-incarcerative sentence.
Accordingly, the judgment of the trial court is affirmed.
6
____________________________________
DAVID G. HAYES, Judge
CONCUR:
____________________________________
JOHN H. PEAY, Judge
____________________________________
JOSEPH M. TIPTON, Judge
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