State v. Tate

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1998 SESSION
January 28, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9712-CR-00553
Appellee, )
) Knox County
v. )
) Honorable Ray L. Jenkins, Judge
MICHAEL DEAN TATE, )
) (Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Darryl W. Humphrey John Knox Walkup
P. O. Box 665 Attorney General & Reporter
Knoxville, TN 37914 425 Fifth Avenue North
Nashville, TN 37243-0493
Todd R. Kelley
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
400 Main Street
Knoxville, TN 37901
Paula R. Gentry
Assistant District Attorney General
400 Main Street
Knoxville, TN 37901
OPINION FILED: ____________________________
AFFIRMED
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The appellant, Michael Dean Tate, referred herein as the defendant, appeals as of
right from the sentence imposed by the Knox County Criminal Court, following entry of his
guilty pleas to sale of cocaine not exceeding one-half gram and possession of cocaine not
exceeding one-half gram with the intent to sell. After a sentencing hearing, the trial court
imposed fines of $2,000 for each offense and sentenced the defendant to six years for
each offense to be served consecutively in the Department of Correction.
The sole issue for appellate review is:
Whether the trial court erred when it failed to properly consider
the mitigating factor and alternative sentencing for the
defendant and instead sentenced the defendant to serve two
consecutive six-year terms of imprisonment in the custody of
the Tennessee Department of Correction.
After a review of the entire record, briefs of the parties, and applicable law, we affirm
the judgment of the trial court.
FACTUAL BACKGROUND
On May 7, 1997, the defendant entered guilty pleas to the sale of cocaine and
possession of cocaine with the intent to sell. The defendant did not include a transcript of
the guilty plea hearing in this record. Apparently, the trial court was to determine the
appropriate confinement period and whether an alternative sentence was appropriate.
The record establishes the defendant sold a “rock” of cocaine to an undercover
officer in Knox County on October 29, 1994. The defendant was released on bail. On April
28, 1995, law enforcement officers executed a search warrant at the defendant’s residence
and found three “rocks” of cocaine in a bedroom closet and a twenty dollar bill from an
earlier cocaine buy.
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At the conclusion of the guilty plea proceedings, the trial court ordered the
defendant to report to the State Probation Office for a presentence report. The defendant
failed to report to the probation office and was taken into custody on June 26, 1997 until
he could be interviewed. After the interview, the trial court released the defendant on bail
and set a sentencing hearing for August 14, 1997.
A review of the sentencing transcript reveals the defendant did not testify in support
of his application for an alternative sentence, but relied on his statement to the trial court
and the presentence report. Further, the defendant urged the trial court to place him in the
Community Alternatives to Prison Program (CAPP) and thus he could become a productive
member of society. The trial court found the defendant to be a Range I offender and
sentenced him to the maximum sentence of six years for each offense, to run
consecutively in the Department of Correction. The trial court ordered the sentences to be
served consecutively since the defendant was on bail for the offense of sale of cocaine
when he was arrested for the possession of cocaine with the intent to sell. The trial court
denied any alternative sentence and ordered the defendant into continuous confinement.
SENTENCING CONSIDERATIONS
In the defendant’s single appellate issue, he contends the trial court failed to
consider and weigh a mitigating factor which should have resulted in a lesser sentence and
an alternative sentence. The state disagrees.
A.
Manner of Service
When a defendant complains of the imposition of his or her sentence, we must
conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d). Therefore, the burden of showing that the sentence is improper is upon the
appealing party. Id. The presumption that determinations made by the trial court are
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correct is conditioned upon the 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 (Tenn. 1991); State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App.
1994).
If appellate review reflects the trial court properly considered all relevant facts and
its findings of fact are adequately supported by the record, this Court must affirm the
sentence “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an
appropriate sentence, the trial court must consider: (1) the evidence, if any, received at
the guilty plea and the sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics
of the criminal conduct involved; (5) evidence and information offered by the parties on
enhancement and mitigating factors; (6) any statements the defendant wishes to make in
the defendant’s behalf about the sentencing; and (7) the potential for rehabilitation and
treatment. Tenn. Code Ann. §§ 40-35-210(a) and (b), § 40-35-103(5); State v. Holland,
860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).
The record in this case demonstrates the trial court made adequate findings of fact.
We, therefore, conduct a review of these facts with a presumption of correctness. In
determining the appropriate sentences, the trial court found four enhancement factors
supported by the evidence: the defendant has a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range,
Tenn. Code Ann. § 40-35-114(1); the defendant has a previous history of unwillingness to
comply with the conditions of a sentence involving release in the community, Tenn. Code
Ann. § 40-35-114(8); the defendant was convicted of a felony while on bail release, Tenn.
Code Ann. § 40-35-114(13)(A); and the defendant was adjudicated to have committed a
delinquent act or acts as a juvenile that would have constituted a felony if committed by an
adult, Tenn. Code Ann. § 40-35-113(20). The trial court rejected as a mitigating factor the
defendant’s criminal conduct neither caused nor threatened serious bodily injury, Tenn.
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Code Ann. § 40-35-113(1).
We find the record fully supports the trial court’s determination of these
enhancement factors to raise the defendant’s sentences from the minimum of three years
to six years. The presentence report reveals the defendant has an extensive criminal
history beginning at the age of 13 and including several drug convictions as a juvenile. The
Knox County juvenile authorities found it necessary to revoke the defendant’s probation
and place him in confinement in a juvenile institution. As an adult, the defendant has been
convicted of the casual exchange of marijuana. At the time of the sentencing hearing, the
defendant had four active criminal charges, ranging from aggravated assault to driving on
a suspended license.
Since the defendant contends that the trial court was in error for failing to apply
Tenn. Code Ann. § 40-35-113(1), the defendant’s criminal conduct neither caused nor
threatened serious bodily injury, we must determine if the record supports the trial court’s
decision. The defendant pled guilty to two Class C felonies, the sale of cocaine not
exceeding one-half gram and the possession of cocaine not exceeding one-half gram with
the intent to sell. The second offense occurred while the defendant was on bail release.
This Court has held this factor should not be applied when the defendant is convicted of
an offense involving the sale of cocaine. State v. Keel, 882 S.W.2d 410, 422 (Tenn. Crim.
App.), per. app. denied (Tenn. 1994); State v. Michael Anthony Pike, No. 02C01-9509-CC-
00261 (Tenn. Crim. App., Jackson, January 16, 1997), per. app. denied (Tenn. 1997);
State v. Larry D. Jones, No. 01C01-9112-CR-00368 (Tenn. Crim. App., Nashville, June 20,
1992), per. app. denied (Tenn. 1992); see State v. Kenny Cheatham, No. 01C01-9506-CC-
00196 (Tenn. Crim. App., Nashville, June 11, 1996).
However, this Court has previously held that, although the voluntary sale of cocaine
may have the potential for bodily injury, this mitigating factor was applicable “unless the
conduct relates to serious bodily injury and the factor should be considered in relation to
the facts and circumstances of the particular case.” State v. Johnny Ray Christman, No.
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01C01-9211-CC-00361 (Tenn. Crim. App., Nashville, September 2, 1993). In certain
circumstances if a defendant sells cocaine in very small quantities to a willing buyer, this
factor may well be an appropriate mitigating factor. State v. Michael Wayne Henry, No.
02C01-9611-CC-00382 (Tenn. Crim. App., Jackson, May 29, 1997), per. app. denied
(Tenn. 1998); see also State v. Troy Carney and James Andrew Slaughter, Jr., No. 01C01-
9412-CR-00425 (Tenn. Crim. App., Nashville, February 23, 1996), per. app. denied (Tenn.
1997).
Under the facts in this record, we believe the trial court was correct in rejecting factor
(1), Tenn. Code Ann. § 40-35-113. Although the first offense involved the sale of a small
amount of “rock” cocaine in October, 1994, the defendant continued his involvement in the
sales and/or possessions of cocaine for sale. This is evidenced by the execution of a
search warrant in April, 1995 whereupon the defendant was found to be in possession of
money from a previous sale and additional “rock” cocaine. The continuous and voluntary
sales of cocaine by the defendant reflect his total unconcern for the health and welfare of
his fellow citizens. There is no merit to this issue.
B.
Denial of Alternative Sentence
In lieu of confinement, the defendant urges that he is a favorable candidate for
sentencing to the CAPP and that the trial court erred in failing to consider him for that
program.
In denying the defendant’s request for probation, as well as for placement in the
CAPP, the trial court held:
With regard to the request for probation, as well as
consideration by the Community Alternatives to Prison
Program, the Court observes that this defendant at the outset
is attempting to alter the terms of any consideration that he will
be given under any program. It’s better to face these at this
point than to wait to revoke later.
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Since the defendant entered two pleas of guilty to drug offenses, both Class C
felonies, ordinarily the defendant would be presumed to be a favorable candidate for
probation or an alternative sentence, in the absence of evidence to the contrary. Tenn.
Code Ann. § 40-35-102(6). It is clear from the record the defendant would not be entitled
to straight probation, thus the only viable option for the defendant was the CAPP. The
state had the burden of overcoming the defendant’s presumed candidacy for alternative
sentencing options.
The defendant meets the requirement of consideration for placement in the
community corrections program. See Tenn. Code Ann. § 40-36-106(a)(2), Persons who
are convicted of drug/alcohol-related felony offenses not involving crimes against the
person as provided in title 39, chapter 13, parts 1-5.
In determining the suitability of placing the defendant in any program, the trial court
took into consideration the report of the Knox County Sheriff’s Department CAPP. The
report, in the opinion of the CAPP staff, indicated the defendant would not be a successful
CAPP client due to the defendant’s prior record, history of non-compliance with Juvenile
Court, pending criminal charges, and his attitude and statements regarding CAPP
requirements. The defendant believed “CAPP is too strict for a Range I offender.” The
defendant refused to sign the Group/Individual Counseling Contract because he did not
think he would be able to attend due to transportation problems.
Further, the trial court considered the sentencing principles of Tenn. Code Ann. §
40-35-103:
(1) Sentencing involving confinement should be based on
the following considerations:
(A) Confinement is necessary to protect society by
restraining a defendant who has a long history of
criminal conduct;
(B) 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
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(C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to
the defendant.
The trial court set out a long list of its reasons for confining the defendant. The court
found confinement was necessary in view of the defendant’s long history of criminal
conduct and past measures less restrictive than confinement have been applied
unsuccessfully to the defendant. Furthermore, the defendant failed to assist the probation
office with preparation of a presentence report. We agree with the trial court’s findings
and affirm the judgment.
________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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