State v. Eric Woodard

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 1998 SESSION September 11, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9707-CR-00253
Appellee, )
) SHELBY COUNTY
vs. )
) HON. CHRIS CRAFT
ERIC D. WOODARD, )
) (Possession of Marijuana to
) Sell or Deliver)
Appellant, )
) AFFIRMED - RULE 20
FOR THE APPELLANT: FOR THE APPELLEE:
RANDALL P. SALKY JOHN KNOX WALKUP
266 South Front Street Attorney General & Reporter
Memphis, TN 38103
PETER M. COUGHLAN
Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
JERRY KITCHEN
Assistant Dist. Attorney General
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED: _____________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The defendant, Eric D. Woodard, appeals the decision of the Shelby
County Criminal Court to deny probation of his plea-bargained one-year sentence.
The trial court imposed the sentence, along with a $2,000 fine, in consequence of
the defendant’s guilty plea to the Class E felony of possessing marijuana with intent
to sell or deliver. We have reviewed the record on appeal, including the briefs of the
parties, the transcript of the sentencing hearing, and the presentence report, and
we affirm the denial of probation pursuant to Rule 20 of the rules of this court.
The trial court considered the applicable principles of the Sentencing
Reform Act and articulated its findings of fact. Its decision is presumptively correct.
Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166 (Tenn.
1991).
At the time of sentencing, the twenty-three year-old defendant had a
previous “non-judicially adjusted” juvenile charge of marijuana possession, an
offense he admitted. Also, as an adult, he had been convicted of assault and his
probation for this offense ended only a few weeks before the drug sale that resulted
in the present conviction. The defendant admitted the use of marijuana subsequent
to the adjustment of his juvenile charge and throughout the probation on the assault
charge. He admitted that, during the time when the present offense (selling 115.4
grams for $325) was committed, he was extensively involved in selling marijuana
and was a “dope dealer.” The trial court denied alternative sentencing chiefly
because alternative sentencing had been unsuccessful in the past. The trial court
properly found that the evidence overcame the presumption of favorable candidacy
for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997); Tenn.
Code Ann. § 40-35-103(1)(C)(1997) (providing that a sentence involving
confinement may be based on the fact that “measures less restrictive than
confinement have . . . recently been applied unsuccessfully to the defendant”).
Moreover, the burden rests upon the defendant to demonstrate entitlement to
probation. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995);
2
see Tenn. Code Ann. § 40-35-303(b) (1997).
The trial court’s denial of probation comes to this court presumed to
be correct. The record reflects nothing that overcomes this presumption.
See Ashby, 823 S.W.2d at 169.
The judgment of the trial court is AFFIRMED pursuant to Rule 20.
Tenn. R. Ct. Crim. App. 20.
_________________________
CURWOOD W ITT, Judge
CONCUR:
________________________
JOE G. RILEY, Judge
_________________________
ROBERT W. WEDEMEYER, Special Judge
3