State v. Moore

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
JANUARY 1998 SESSION
March 18, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) C.C.A. No. 02C01-9701-CR-00035
Appellee, )
) Shelby County
V. )
) Honorable Arthur Bennett, Judge
)
ANTONIO S. MOORE, ) (Sentencing)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
J. C. McLin John Knox Walkup
Attorney at Law Attorney General & Reporter
301 Washington Ave., Suite 201
Memphis, TN 38103 Georgia Blythe Felner
Counsel for the State
Lee Wilson Criminal Justice Division
Attorney at Law 450 James Robertson Parkway
200 Jefferson Nashville, TN 37243-0493
Memphis, TN 38103
(At Trial) William L. Gibbons
District Attorney General
Perry Hayes
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
MODIFIED
PAUL G. SUMMERS,
Judge
OPINION
Antonio Moore, the appellant, pled guilty to possession of cocaine with
intent to sell in an amount less than one-half of a gram. The appellant agreed to
a three-year sentence, with the court to determine whether the appellant should
receive probation. The court ordered the appellant to serve eleven months
twenty-nine days in jail followed by two years of community corrections.1
Appellant appeals, and the sole issue for our review is whether the court should
have granted the appellant full probation. He requests a nonincarcerative
alternative sentence.
The appellant was a passenger in a vehicle that was stopped for speeding
by the police. The police officer observed a plastic bag on the floor of the vehicle
which contained approximately fourteen grams of crack cocaine. The appellant
testified that he purchased the cocaine to sell because he needed quick money
to buy an air conditioning machine for use in his work. The appellant testified
that this was the first time that he had purchased cocaine and that someone was
going to help him sell it.
The appellant is a first time offender who pled guilty to a Class C felony.
He is presumed, absent evidence to the contrary, to be a favorable candidate for
alternative sentencing options. Tenn. Code Ann. § 40-35-102(5) & (6) (Supp.
1995). The appellant was sentenced to split confinement, an alternative to
straight confinement. The appellant contends, however, that he should have
been granted full probation. The appellant is eligible for probation. Tenn. Code
Ann. § 40-35-303(a) (Supp. 1994).
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The judgment sheet and transcript conflict on the exact sentence. We view the transcript as
controlling. W e view this as a thre e-year split sentenc e. State v. Moore, 814 S.W.2d 381, 383 (Tenn.
Crim. App. 1991).
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When an appellant challenges the manner of service of a sentence, this
Court reviews the evidence de novo with a presumption that the determinations
of the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1990). The
presumption of correctness is conditioned upon an affirmative showing 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). Our review
consists of an analysis of the evidence at the sentencing hearing, the
presentence report, the principles of sentencing, the arguments of counsel, the
nature and characteristics of the offense, mitigating and enhancement factors,
the defendant’s statements and the defendant’s potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-102 (Supp. 1994),-103(1990),-210 (Supp.
1992); Ashby, 823 S.W.2d at 169.
When deciding a defendant’s suitability for probation, the trial court should
consider the accused’s criminal record, social history, present physical and
mental condition, the nature and circumstances of the offense, the deterrent
effect on others, and the defendant’s potential for rehabilitation. Stiller v. State,
516 S.W.2d 617, 620 (Tenn. 1974). A sentence of confinement must be based
upon the following considerations: (1) confinement is necessary to protect
society by restraining a defendant who has a long history of criminal conduct; (2)
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 (3) measures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the
defendant. Tenn. Code Ann. § 40-35-103(1)(A),(B) & (C) (1990).
The appellant is twenty-three years old. He has no criminal record. He
graduated from high school and attended Kansas Vocational Technical
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Institution and the Climate Control Institution. The appellant has a universal
technician’s license in heating and air conditioning. The appellant has been
employed in this field by Harold Robinson for over two years. Mr. Robinson
testified that the appellant works anywhere from ten to fifty hours a week
depending on the time of year. Mr. Robinson testified that the appellant was a
dependable employee, and he would continue to employ the appellant if he was
granted probation. The appellant also works at the Crowne Plaza Hotel doing
maintenance and air conditioning work. He testified that he works a total of
between fifty and eighty hours per week.
The appellant lives with his mother, grandfather, and grandmother. The
appellant’s mother and grandfather testified that he had not caused any
problems before this offense and that he was obedient to them. They testified
that the appellant was remorseful about committing the offense. They testified
that if he was granted probation, they would do all that they could to help him.
The appellant assists his family financially.
The appellant admitted to smoking marijuana since he was arrested in this
case. The presentence report indicates that the appellant was charged with a
drug offense involving cocaine when he was a juvenile. This charge was not
mentioned at the sentencing hearing. The state, the appellant, and the court
agreed that the appellant had no criminal history.
The trial judge denied probation based on the appellant’s untruthfulness,
the nature of the offense, deterrence, and the avoidance of depreciating the
seriousness of the offense. W e are acutely aware that issues of credibility rest
with trial court; however, we find that the evidence preponderates against the
weight placed on this factor by the court. The trial court did not believe that this
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was the first time that the appellant had purchased cocaine. The court said that
it was unreasonable that a first time buyer would purchase that much cocaine
without knowing whether he could sell it or not. The court also cited the
appellant’s testimony that he was going to throw the cocaine away because he
thought that it was no good. Throughout the proceedings against him, and
repeatedly at the sentencing hearing, the appellant admitted that he purchased
the cocaine with the intent of selling it. He testified to how and from whom he
purchased the cocaine. The appellant was clearly truthful about his guilt. From
our review of the entire record, we conclude that untruthfulness is not a factor
upon which to deny a nonincarcerative sentence in this case.
The court expressed concern about whether a sentence of probation
would have a deterrent effect on “large dope dealers.” There is an element of
deterrence in every criminal case. State v. Bonestel, 871 S.W.2d 163, 169
(Tenn. Crim. App. 1993). “Before a trial court can deny probation on the ground
of deterrence, there must be some evidence contained in the record that ‘the
sentence imposed will have a deterrent effect within the jurisdiction.’” Id.(citation omitted); see State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991) (“[t]he
finding of deterrence cannot be conclusory only but must be supported by
proof.”). There is no evidence in the record that sentencing the appellant to full
imprisonment will deter others in his community from selling cocaine. As stated
by the trial court, cocaine use is a serious problem in all communities. However,
absent specific evidence in the record, we must be content that the serious
nature of drug offenses and the need for deterrence is reflected in the sentences
and policies expressed by the legislature in the Criminal Sentencing Reform Act
of 1989.
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The trial court was also concerned about the nature of the offense and
depreciation of the seriousness of the offense. In short, the court stated “The
sale of cocaine is too serious in all communities...to turn your back on a person
who has a large amount for sale. That’s when you need to do some time.”
When addressing the nature or seriousness of the offense, we are considering
whether incarceration is necessary to avoid depreciating the seriousness of the
offense. See State v. Zeolia, 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996).
The nature and seriousness of the offense is but one of a number of
considerations that must guide the court in determining whether to grant
probation. State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993). Before
the nature of the offense alone warrants a probation denial, the act must be
"especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of
an excessive or exaggerated degree," and the nature must outweigh all other
factors. Id. (citing State v. Travis, 622 S.W.2d 529, 534 (Tenn.1981)). While
the amount of cocaine in the appellant’s possession was substantial, he has no
criminal record; he has an education; his employment history is steady and
productive; his home environment is stable; he has a good relationship with his
family; and he has no notable social, physical, or mental conditions which would
bear upon his probation suitability. Thus, we conclude that the nature of the
offense alone does not support the judge's decision. See State v. Cummings,
868 S.W.2d 661 (Tenn. Crim. App. 1992); State v. Ashby, 823 S.W.2d 166(Tenn. Crim. App. 1991).
Despite the assistant district attorney’s comparison of the appellant to
Jeffrey Dahmer in closing argument, the appellant does not fit the profile of the
criminal for whom incarceration is the "first priority" as provided in Tennessee
Code Annotated § 40-35-102(5). Nor has he been the subject of failed
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rehabilitative measures. The appellant's criminal conduct is nonviolent, and he
shows good potential for rehabilitation. The appellant meets all the minimum
criteria of eligibility for punishment in a community-based alternative program.
Such punishment is not exactly what either side requests, but it fits the
appellant’s life record and offense.
The judgment of the trial court is modified; the appellant is sentenced to
three years under the supervision of the Community Corrections Department.
Such a sentence will give the appellant the opportunity to prove himself. If he is
not successful, he may wish that he had served his original sentence and not
requested an alternative.
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
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_____________________________
JOE G. RILEY, Judge
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