State v. Demetrius Robertson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION FILED
March 20, 1998
DEMETRIUS ROBERTSON, * C.C.A. # 02C01-9706-CR-00220
Cecil Crowson, Jr.
Appellant, * SHELBY COUNTY Appellate C ourt Clerk
VS. * Hon. Joseph Brown, Jr., Judge
STATE OF TENNESSEE, * (Possession With Intent to Sell)
Appellee. *
For Appellant: For Appellee:
Russell J. Johnson John Knox Walkup
Attorney Attorney General & Reporter
5100 Poplar Avenue, 27th Floor
Memphis, TN 38137 Marvin E. Clements, Jr.
Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
Kevin Rardin
Asst. District Attorney General
Criminal Justice Complex
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Demetrius Robertson, entered a plea of guilt to
possession of a controlled substance with intent to sell. The trial court imposed a
sentence of split confinement: six months in jail followed by a three-year
probationary period.
In this appeal,1 the defendant argues that she should have been
granted an alternative sentence. We disagree. The judgment of the trial court is,
therefore, affirmed.
A search warrant for the defendant's apartment yielded 11.32 grams of
cocaine, scales, drug paraphernalia, and a nine millimeter handgun with nine live
rounds. The defendant, who had an eight-year-old child living in her residence,
explained that three men who resided with her for the purpose of protecting her and
her son from break-ins, were responsible for the presence of the illegal drugs and
other items seized by the police. The defendant complains that the trial court should
have granted immediate probation or placed her in a Community Corrections
program.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review 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
1
The Notic e of A ppe al wa s filed appr oxim ately e ighty d ays af ter the entry o f judg me nt. W ithin
sixty days of the judgment, the defendant had filed a petition to rehear. The state acknowledged on
the appeal that such petition may be treated as a Motion to Reduce Sentence under Rule 35(b), Tenn.
R. Crim . P. See State v. Irick, 861 S.W.2d 375 (Tenn. Crim. App. 1993). In the appeal of an order
pursua nt to Rule 3 5, the sco pe of rev iew is limited to abuse of discre tion. Id. Because the defendant
is not entitle d to re lief un der th e m ore f avor able s tand ard o f a dire ct ap pea l, as ind icate d by th is
opinion, sh e would n ot be entitled to relief unde r Rule 35 .
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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, 169 (Tenn. 1991). The
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
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1986). "[E]ach case must be bottomed upon its own facts." State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987).
The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann.
§ 40-36-103. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant
meets the minimum requirements of the Community Corrections Act of 1985,
however, does not mean that she is entitled to be sentenced under the Act as a
matter of law or right. Taylor, 744 S.W.2d at 922. The following offenders are
eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
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The defendant received a favorable presentence report. She is
employed and has taken steps to improve the quality of her life. Yet the defendant
has a prior criminal history as a juvenile. As an adult, she had been granted
probation on a prior felony offense. There was a relatively large amount of cocaine
found in her residence, thus the nature of this offense was serious. Finally, the trial
court determined that the defendant had been untruthful in a prior court appearance
about the degree of relationship with James "Black" W illiams, who was apparently
involved in illegal drug possession and who was one of the three individuals she had
allowed to reside in her home just prior to this offense.
Under these circumstances, the trial judge is entitled to the
presumption of correctness in the imposition of sentence. We fully concur with his
assessment.
Accordingly, the judgment is affirmed.
_________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Joe B. Jones, Presiding Judge
_____________________________
Jerry L. Smith, Judge
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