State v. Burl Jarrett

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1997 FILED
July 23, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9607-CC-00238
) Cecil Crowson, Jr.
Appellee, ) Appellate C ourt Clerk
)
) HARDEMAN COUNTY
VS. )
) HON. JON KERRY BLACKWOOD
BURL JARRETT, ) JUDGE
)
Appellant. ) (Misdemeanor Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF HARDEMAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES T. “JIM” SANDERSON JOHN KNOX W ALKUP
WILLIAM G. HATTON Attorney General and Reporter
P.O. Box 331
Bolivar, TN 38008 GEORGIA BLYTHE FELNER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
ELIZABETH RICE
District Attorney General
JERRY NORWOOD
Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant entered a plea of guilty to the Class A misdemeanor of
simple possession of cocaine. Sentencing was left to the discretion of the trial
judge. The trial judge sentenced the Defendant to serve six months in the county
jail. The Defendant appeals from his sentence. W e affirm the judgment of the
trial court.
The Defendant was charged by indictm ent with the Class B felony offense
of possession with the intent to deliver over .5 grams of cocaine. On the morning
of the trial, apparently after the jury was selected, a plea agreement was reached
whereby the Defendant pleaded guilty to simple possession of cocaine, a Class
A misdemeanor. Subsequently, the trial court conducted a sentencing hearing
after which the Defendant was sentenced to six months in the county jail with
seventy-five percent to be served.1 The trial court also levied a fine in the amount
of two hundred fifty dollars. In this appeal, the Defendant argues that this Court
should reduce his sentence.
W hen an accused challenges the length, range, or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
1
W e observe that the judgment reflects that seventy-five percent shall be served while a
“sentencing order” reflects that fifty percent must be served.
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principles and all relevant facts and circum stances." State v. Ashby, 823 S.W .2d
166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
we may not m odify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Misdemeanor sentencing is controlled by Tennessee Code Annotated
section 40-35-302, which provides in part that the trial court shall impose a
specific sentence consistent with the purposes and principles of the 1989
Criminal Sentencing Reform Act. In misdemeanor sentencing, a separate
sentencing hearing is not mandatory, but the court is required to provide a
defendant with a reasonable opportunity to be heard as to the length and manner
of the sentence. Tenn. Code Ann. § 40-35-302(a). The trial court retains the
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authority to place the defendant on probation either immediately or after a time
of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e).
Misdemeanor sentencing is designed to provide the trial court with continuing
jurisdiction and a great deal of flexibility. One convicted of a misdemeanor, unlike
one convicted of a felony, is not entitled to a presumption of a minimum
sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994 ).
The transcript from the guilty plea hearing reflects that these charges
resulted from a search warrant being executed on the Defendant’s residence. A
co-defendant was at the residence and was observed flushing a plastic bag down
the toilet. The officers were apparently able to secure the sewage discharge pipe
at the residence and retrieved from it a plastic bag containing a white powder.
The white powder was determined to be approximately one gram of cocaine. W e
do note that the co-defendant indicated that the cocaine belonged to him rather
than to the Defendant.
The presentence report reflects that the Defendant was twenty-nine years
old and was married. He dropped out of school in the eleventh grade and had
apparently been unable to maintain employment due to a disability. The report
also shows that the Defendant has one prior felony drug conviction involving
cocaine which occurred in 1995. The conviction in the case sub judice was
entered on February 1, 1996, although the offense took place prior to the
previous felony conviction. In addition, the Defendant received a felony forgery
conviction in 1985 and has had several traffic offenses. While on probation for
the previous felony cocaine conviction the Defendant tested positive for cocaine
use on two occasions. The Defendant chose not to make a statement for
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purposes of the presentence report and also chose not to testify at his sentencing
hearing.
This Court should not place trial judges in a “judicial straight-jacket”
regarding misdemeanor sentencing or in any other area, and we are reluctant to
interfere with the “traditional discretionary powers” of trial judges. See Moten v.
State, 559 S.W .2d 770, 773 (Tenn. 1977). The sentence imposed by the trial
judge for this Class A misdemeanor offense is in the middle of the range. From
this record, we cannot conclude that the trial judge erred or abused his discretion.
The judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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