State of Tennessee v. Michael Anthony Pike ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST 1996 SESSION
FILED
December 4,
2001
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) NO. 02C01-9509-CC-00261
)
Appellee ) HENRY COUNTY
)
V. ) HON. JULIAN P. GUINN, JUDGE
)
MICHAEL ANTHONY PIKE ) (Sentencing)
)
Appellant )
)
FOR THE APPELLANT FOR THE APPELLEE
Barton F. Robison Charles W. Burson
104 West Washington Street Attorney General and Reporter
Paris, Tennessee 38242 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Michelle L. Lehman
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Robert Radford
District Attorney General
Vicki Snyder
Assistant District Attorney General
P.O. Box 686
Huntingdon, Tennessee 38344
OPINION FILED:______
AFFIRMED
William M. Barker, Judge
Opinion
The Appellant, Michael Anthony Pike, appeals as of right his sentences for
simple possession of marijuana, possession of marijuana with intent to sell, and
possession of drug paraphernalia. He argues on appeal that the trial judge erred by
not placing him in community corrections or, in the alternative, by not giving him the
minimum statutory sentences. After a careful review of the record on appeal, we
affirm the trial court’s judgment.
On November 14, 1994, the Appellant was arrested after attempting to make a
marijuana purchase from undercover police officers. After the arrest, the police
officers obtained a search warrant for the Appellant’s hotel room and found another
quantity of marijuana and rolling papers. On May 22, 1995, the Appellant pled guilty
to all charges. After a sentencing hearing, the trial judge sentenced him to two years
confinement for possession of marijuana with intent to sell, eleven months and twenty-
nine days for both simple possession of marijuana and possession of drug
paraphernalia, all sentences to be served concurrently.
When an Appellant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)
(1990). The burden of showing that the sentence is improper is upon the appealing
party. Id. Sentencing Commission Comments. This presumption, however, is
conditioned upon an affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).
The Appellant first contends that the trial judge should have ordered alternative
sentencing by placing him in community corrections. This issue is without merit.
The Appellant argues that he should have received alternative sentencing
because as a Class E felon he is presumed a favorable candidate for alternative
sentencing. See Tenn. Code Ann. 40-35-103(b) (1990). He further contends that
alternative sentencing is appropriate because he has testified in front of a federal
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grand jury trying to crack down on a drug ring and because he is the sole provider for
his children.
The trial judge, however, opined that placing the Appellant in community
corrections would depreciate the seriousness of his offenses. See Tenn. Code Ann.
§ 40-35-103 (1)(B) (1990). Regarding the grand jury testimony, the trial judge found
that the Appellant failed to show that any indictments had been handed down or any
arrests made as a result of his testimony. However, the trial judge stated that if the
Appellant could show that the testimony resulted in any indictments or convictions, the
trial judge would consider suspending the Appellant’s sentences. Moreover, the trial
judge found that an order of alternative sentencing would not be in the best interest of
justice, the public, or the Appellant himself and that the Appellant should have thought
about his children before dealing in drugs. Accordingly, the trial judge declined to find
the Appellant a good candidate for community corrections or any other type alternative
sentencing. We agree.
The Appellant’s second contention is that the trial judge erred when he did not
give the Appellant the minimum sentence for possession of marijuana with intent to
sell. This issue is also without merit.
When determining the length of a sentence, the trial judge shall start at the
minimum sentence, increase it considering appropriate enhancement factors, and
decrease it considering appropriate mitigating factors. Tenn. Code Ann. § 40-35-210(Supp. 1995).
At the sentencing hearing, the trial judge found that the Appellant has a
substantial previous history of both criminal convictions and criminal behavior. See
Tenn. Code Ann. § 40-35-114(1) (Supp.1995). The record supports the trial judge’s
findings in that regard.
The Appellant then offered two mitigating factors. First, that his “conduct
neither caused nor threatened serious bodily injury” and second, that he has been
assisting the police in uncovering other criminal activity. Tenn. Code Ann. § 40-35-
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113(1), (9) (1990). The trial judge did not give either mitigating factor much weight.
See State v. Mann, No. 02C01-9504-CC-00101 (Tenn. Crim. App., Jackson, Oct. 18,
1995), permission to appeal denied (April 1, 1996) (stating that the serious bodily
injury mitigating factor has little weight when the sale of drugs to the public is
involved); State v. Keel, 882 S.W.2d 410 (Tenn. Crim. App. 1994) (suggesting that
when an appellant tries to assist the police in uncovering criminal activity and the
assistance bears no fruit, the requirements of mitigating factor number nine are not
fulfilled). Considering both enhancing and mitigating factors, the trial judge ruled that
the enhancement factor far outweighed the mitigating factors and enhanced the
Appellant’s sentence from one year to two years.
We find no abuse of the trial court’s discretion. Accordingly, we affirm the
Appellant’s sentences.
__________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
__________________________
GARY R. WADE, JUDGE
__________________________
JERRY L. SMITH, JUDGE
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