State v. Larry Torres

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION FILED
March 12, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9702-CR-00065
Appellee, )
) Shelby County
V. )
) Honorable Chris Craft, Judge
LARRY TORRES, )
) (Unlawful Possession of Over 10 Pounds
Appellant. ) of Marijuana with Intent to Sell)
FOR THE APPELLANT: FOR THE APPELLEE:
A C Wharton, Jr. John Knox Walkup
Shelby County Public Defender Attorney General & Reporter
Walker Gwinn Janis L. Turner
Assistant Public Defender Counsel for the State
Criminal Justice Division
William C. Moore, Jr. 450 James Robertson Parkway
Assistant Public Defender Nashville, TN 37243-0493
201 Poplar Avenue, Suite 201
Memphis, TN 38103 William L. Gibbons
(At Trial) District Attorney General
John Campbell
Assistant District Attorney General
Jerry R. Kitchen
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Larry Torres, the appellant, pled guilty in the Shelby County Criminal
Court to the unlawful possession of over ten pounds of marijuana with intent to
sell. He agreed to a three-year sentence. The trial court denied Mr. Torres’
petition for a suspended sentence. Appellant appeals, arguing that the trial court
should have imposed a sentence of split confinement or probation. We affirm.
The appellant is a resident of Corpus Christi, Texas. He is forty-three
years old. In October of 1995, the appellant mentioned to an acquaintance
named “Henry” that he needed money. Henry told the appellant about a plan to
transport approximately ninety pounds of marijuana from Dallas to Memphis.
The appellant testified that Henry arranged all the details. The appellant’s job
was only to carry a portion of the marijuana. He was to earn $1500.
The appellant and Henry rode a Greyhound bus from Dallas to Memphis.
Upon arrival, a police dog trained to detect illegal substances alerted the police
to the appellant’s carry-on bag. The appellant fled on foot. He was caught and
subdued with mace. One officer suffered a minor injury. The appellant’s
baggage claim ticket matched a duffle bag that also contained marijuana. The
appellant’s bags contained a total of approximately fifty seven and one-half
pounds of marijuana. Henry escaped on foot. His bag contained approximately
thirty seven pounds of marijuana.
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
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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 defendant’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 should 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 has been frequently or recently been applied unsuccessfully to the
defendant. Tenn. Code Ann. § 40-35-103(1)(A) - (C) (1990).
At the hearing on his petition, the appellant testified that he has been
employed on and off in the construction industry for about five years. He holds
an associate’s degree from a junior college. At the time of his arrest, he was
working on a bachelor’s degree in physical education. In 1987, the appellant
volunteered to serve in the Army. He received an honorable discharge after four
and one-half years of service.
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The appellant testified that he had never transported drugs before the
present offense, and he was forced to do so because he was unable to get
construction jobs and his bills were mounting. He testified that he did not know
who gave Henry the marijuana or to whom it was to be delivered. The appellant
testified that he and Henry rode a bus to Dallas where they checked into a motel.
Henry took their bags and filled them with marijuana while the appellant waited in
the room. The appellant testified that when they arrived in Memphis, he and
Henry were going to check into a motel. He was going to wait in the room while
Henry delivered the drugs and picked up the money.
The presentence report indicates that the appellant was arrested for
possession of marijuana in 1985, 1992, and 1994. The appellant’s only
conviction was for misdemeanor possession of marijuana in 1985. He was
sentenced to six months probation. The 1992 arrest was for possession of
approximately nine and one half pounds of marijuana. The appellant testified
that he had smoked marijuana while out on bond for the present offense.
Since his arrest, the appellant traveled from Corpus Christi to Memphis
several times for court dates. He admitted his guilt and expressed remorse for
his offense.
The trial court denied the appellant’s petition for a suspended sentence
based on the enormity of the offense, the appellant’s prior criminal activity
involving drugs, the failure of rehabilitative efforts in the past, and the deterrent
effect that incarceration would have on the people who were to receive the
marijuana in Memphis. The court noted that the appellant had associated
himself with an operation to bring over ninety pounds of marijuana to Memphis.
The trial court said that, while he could not consider the 1992 charge of
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possession of nine and one-half pounds of marijuana as a conviction, he could
consider it as part of the appellant’s social history.
On appeal, the appellant emphasizes that his criminal record consists only
of a misdemeanor conviction of marijuana and that the present offense is non-
violent. He argues that his trips from Texas to Memphis for court appearances
indicate that he will follow the requirements for release into the community. The
appellant asks us to modify his sentence to ninety days incarceration followed by
probation. The state essentially relies upon the factors articulated by the court to
support the denial of alternative sentencing.
The appellant 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). At the sentencing hearing, the state had the
burden of presenting evidence to rebut this presumption. The trial court implicitly
held that the state had fulfilled its burden by denying alternative sentencing. The
trial court considered the sentencing principles and facts; therefore, we review its
findings with a presumption of correctness, unless the evidence preponderates
otherwise.
We affirm the judgment of the trial court. Incarceration is the least severe
measure necessary to achieve the purposes for which the sentence is imposed.
The evidence in the record supports the court’s finding that incarceration was
necessary to avoid depreciating the enormity or seriousness of the offense. The
appellant affiliated himself with a conspiracy or operation to transport over ninety
pounds of marijuana across state lines from Texas to Tennessee. The court
also properly considered the appellant’s arrest record as part of the appellant’s
overall social history. Despite the portrayal of the appellant as a neophyte in the
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drug trade, the appellant’s arrest record strongly suggests a more familiar
relationship with drugs. Finally, the court properly considered that rehabilitative
measures had been unsuccessful in the past. The appellant’s lack of potential
for rehabilitation is also supported by the appellant’s use of marijuana while on
bond for the present offense. There is no evidence that incarceration would
have a deterrent effect as required for reliance on this factor. See State v.
Ashby, 823 S.W.2d 166, 170 (Tenn. 1991).
The judgment of the trial court is affirmed.
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
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_____________________________
DAVID G. HAYES, Judge
_____________________________
JOE G. RILEY, Judge
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