State v. Luther McCutcheon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1998
FILED
STATE OF TENNESSEE, ) May 22, 1998
) No. 02C01-9708-CC-00298
Appellee ) Cecil Crowson, Jr.
Appellate C ourt Clerk
) HENRY COUNTY
vs. )
) Hon. JULIAN P. GUINN, Judge
LUTHER EARL McCUTCHEON, )
) (Sale of cocaine over one-
Appellant ) half gram)
For the Appellant: For the Appellee:
Donald E. Parish John Knox Walkup
Ivey, Parish & Johns Attorney General and Reporter
12880 East Paris Street
P. O. Box 229 Peter M. Coughlan
Huntingdon, TN 38344 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Robert "Gus" Radford
District Attorney General
P. O. Box 686
Huntingdon, TN 38344
OPINION FILED:
AFFIRMED PURSUANT TO RULE 20
David G. Hayes
Judge
OPINION
The appellant, Luther Earl McCutcheon, was indicted by the Henry County
Grand Jury in a four count indictment, charging him with two counts of a class B felony
sale of cocaine and two alternative counts of a class B felony delivery of cocaine. The
two offenses for sale of cocaine and the accompanying alternative counts for delivery
were severed and, following a jury trial, the appellant was found not guilty of sale and
delivery of cocaine. The appellant subsequently pled guilty to the remaining count of
sale of cocaine over one-half gram and, pursuant to a plea agreement, received an
eight year sentence with the manner of service of the sentence to be determined by the
trial court. At the sentencing hearing, the trial court imposed a split confinement
sentence, requiring the appellant to serve continuous confinement of one year in the
county jail, followed by supervised probation for the remainder of the sentence. The
appellant appeals this sentencing determination contending that the trial court erred in
denying him a non- incarcerative community corrections sentence. After review, we
affirm.
A sentencing hearing was scheduled for April 9, 1997. At the hearing, no
testimony was presented by the appellant or by the State. The appellant relied upon
a sentencing memorandum previously filed and the pre-sentence report. Additionally,
we note that the transcript of the guilty plea hearing was not included in the record,
therefore, we are precluded from a review of the nature and circumstances of the
offense.1 In denying a non-incarcerative sentence, the trial court noted:
[T]his Court finds as its reasons for not granting a total suspended
sentence or a complete commission to Community Corrections for the
entire period the following reasons. The circumstances of this offense.
This man knowingly and intentionally placed himself directly in the middle
of an ongoing dope operation and voluntarily participated. Total
suspension would not be in the best interest of justice, it would not be in
the best interest of this defendant, and it certainly wouldn’t be in the best
interest of the public.
I have considered the deterrent effect, perhaps more so in this case than
other cases of a like nature, because of the peculiar circumstances of the
case. Lastly, I am of the opinion that confinement is necessary to avoid
deprecating the seriousness of the offense.
1
If the appellate record is inadequate, the reviewing court must presume that the trial
judge ru led corre ctly. See State v. Ivy, 868 S.W .2d 724, 728 (Tenn.Crim .App. 1993).
2
Review by this court, of the length, range, or manner of service of a sentence is
de novo with a presumption that the determination made by the sentencing court is
correct. Tenn. Code Ann. § 40-35-401(d)(1990). This presumption only applies,
however, if the record demonstrates that the sentencing court properly considered
relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In
the case before us, the record reflects that the sentencing court considered relevant
sentencing principles; thus, the presumption applies. The burden is on the appellant
to show that the sentence imposed was improper. Sentencing Commission Comments,
Tenn. Code Ann. § 40-35-401(d).
The appellant argues on appeal that the facts of this case are analogous to
those in State v. Ashby, 823 S.W .2d at 166. However, such a comparison is
misplaced. The defendant in Ashby was convicted of a class C felony and, therefore,
was entitled to the presumption of an alternative sentence. The appellant in this case
was convicted of a class B felony and, thus, was not entitled to the presumption of an
alternative sentence. Moreover, in Ashby the trial court imposed a penitentiary
sentence. In this case, the trial court granted an alternative sentence.
We conclude that the appellant has failed in his burden of establishing that the
sentence imposed by the trial court is incorrect. Finding no error of law requiring
reversal, we affirm the judgment of the trial court in accordance with Rule 20, Tenn. Ct.
Crim. App.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
________________________________
WILLIAM M. BARKER, Judge
________________________________
JOE G. RILEY, Judge
3