Opinion
No. M2002-00399-CCA-R3-CD.
Filed February 27, 2003.
Appeal from the Circuit Court for Bedford County; No. 14962; Charles Lee, Judge.
Affirmed.
Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Earl Draine.
Paul G. Summers, Attorney General Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.
Gary R. Wade, P.J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
OPINION
The defendant, Earl Draine, pled guilty to three counts of sale of cocaine, Class B felonies, and five counts of sale of cocaine, Class C felonies. See Tenn. Code Ann. § 39-17-417. For the Class B felonies, the trial court ordered concurrent sentences of eight years, eight years and nine months, and ten years and six months. As to the Class C felonies, it ordered concurrent sentences of three years and six months, four years, four years and six months, four years and nine months, and five years and six months. The Class C sentences are to be served consecutively to the Class B sentences, an effective sentence of sixteen years. In this appeal of right, the defendant asserts that the trial court erred by denying a community corrections sentence. The judgments of the trial court are affirmed.
At the submission hearing, the defendant entered guilty pleas and stipulated the underlying facts as follows:
[I]n . . . the months of September, October, November and December of 2000, the Drug Task Force began conducting operations that targeted this defendant and another defendant by the name of Brengatta Hicks, specifically in the area of sale of crack cocaine.
[O]n the different days alleged in the indictment, an agent of the Drug Task Force in an undercover capacity and a confidential informant would go to Brengatta Hicks' residence . . . in Bedford County. On some occasions they would pull up in a car and the defendant would come out of Brengatta Hicks' home. They would engage the defendant in conversation about the purchase of crack cocaine. The defendant would then return to the inside of Ms. Hicks' home, then come back outside a short time later and hand them a quantity of crack cocaine and they would hand the money directly to him.
On other occasions the agent and the confidential informant would actually go inside of Ms. Hicks' residence. They would then deal directly with the defendant, however, again having a conversation about the purchase of crack cocaine. They would give money directly to the defendant and he would hand directly to them crack cocaine.
On one occasion they actually went into Ms. Hicks' residence. Ms. Hicks was not there. However, the defendant was. The defendant had a telephone conversation with Ms. Hicks. . . . [A] very short time later she pulled up in a car outside of her home and the defendant actually left the residence; went back to the car Ms. Hicks was in [and] returned to the residence and handed crack cocaine directly over to the agent and the confidential informant. . . . [T]hey in turn handed money directly to him.
In addition, . . . once the defendant was arrested on these charges, agents of the Drug Task Force interviewed this defendant and he admitted that he had been selling crack cocaine for Brengatta Hicks for a period of time; that he had done so quite a number of times. . . .
Ms. Hicks' first name also appears in the record as "Brengetta."
Probation officer Laura Prosser prepared the pre-sentence report. At the sentencing hearing, she testified that the defendant had two prior convictions. The defendant had pled guilty to passing a worthless check on November 8, 1996, and was sentenced to six months, with all but two weekends suspended, and ordered to pay $454 in restitution. Although a probation violation warrant was filed, it was dismissed upon the defendant's payment of restitution. On January 21, 2001, the defendant was convicted of driving on a revoked license and sentenced to six months' probation. Afterward, the defendant's probation was revoked and he was ordered to serve ninety days in jail. Ms. Prosser testified that the defendant confessed that he had experienced a ten-year addiction to crack cocaine. While he claimed that he had been treated at Path Finders and Buffalo Valley, she attempted to verify the treatment but was unable to do so. Ms. Prosser stated that the defendant, thirty-seven years of age, reported an employment history of one prior job which lasted approximately six months; he claimed, however, that if he were to be granted alternative sentencing, he would have employment moving houses for a man named Randy Lewis in Fosterville. When Ms. Prosser attempted to telephone Lewis at the number provided by the defendant, she discovered that the number had been disconnected. She was unable to locate a directory listing under that name.
Undercover agent Tim Miller, a Lincoln County Sheriff's Deputy assigned to the Drug Task Force, made the controlled drug purchases underlying the offenses. At the sentencing hearing, he testified that based upon information provided by a confidential informant, he was able to purchase drugs from the defendant on eight or nine occasions. Agent Miller described the defendant as a professional drug dealer: "[T]hat is all he did at the time [and] we . . . could go down there any time and purchase drugs."
The defendant, who was living with his mother at the time of his arrest, described Brengatta Hicks as a neighbor. He stated that he kept her two children and performed manual labor for her in exchange for crack cocaine. The defendant acknowledged that he also assisted Ms. Hicks with drug transactions, in return for which she would give him drugs and help him pay bills. According to the defendant, who is homosexual, the undercover agent and informant who made the illegal drug purchases led him to believe that he would receive sex in exchange for his delivering the drugs. The defendant claimed that he had been addicted to crack cocaine for ten or eleven years and that he had sought treatment in the past at two different centers and at an Alcoholics Anonymous/Narcotics Anonymous support group. He stated that he had been in jail for approximately seven months and that he had attended AA meetings during that time. He denied that he had any cravings for crack cocaine and maintained that he had been supporting his young daughter prior to his incarceration.
The defendant contended that he had been at the Buffalo Valley drug treatment facility for a week in 1995 or 1996, explaining that he was able to complete only one-half of the program through his insurance coverage. He acknowledged that probation on his six-month sentence for driving on a revoked license had been revoked for the failure to pay fines, costs, and fees, rather than the charges in this case. The defendant also acknowledged that his mother had been the victim of his 1996 worthless check offense. He claimed that he had met Randy Lewis, the man who had offered him a job, while they were both in jail. While he insisted that he "made quite a bit of money" doing hair, he had filed no tax returns and was unable to offer proof of his income.
After determining the length of the defendant's combined sentences, the trial court ruled that the defendant was not entitled to a community corrections sentence:
The defendant has the burden of proving he is eligible and should be considered for alternative sentencing under community corrections, and he does not enjoy the presumption as in counts number 1, 2 and 3 since those are Class B felonies.
[W]hen one weighs the factors which the defendant has urged upon the [c]ourt, he has absolutely no employment record. He has urged . . . that . . . he has a special need but by the same token testifies he has now overcome and has no further desire for this drug. Therefore he has no special needs.
Concluding that general deterrence principles also applied, the trial court determined that the defendant had failed to establish that he warranted an alternative sentence.
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 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); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn.Crim.App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
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, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn.Crim.App. 1987).
Especially mitigated or standard offenders convicted of Class B felonies are not presumed to be favorable candidates "for alternative sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). 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 and serve legitimate societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the defendant meets the minimum requirements of the Community Corrections Act of 1985, the defendant is not necessarily entitled to be sentenced under the Act as a matter of law or right.State v. Taylor, 744 S.W.2d 919 (Tenn.Crim.App. 1987). 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 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
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).
Tennessee Code Annotated section 40-36-106(c) creates a "special needs" category of eligibility for a community corrections sentence:
Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of a chronic alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the community under the provisions of this chapter.
To be eligible for community corrections under the special needs category, the defendant must first be eligible for probation under Tenn. Code Ann. § 40-35-303. State v. Staten, 787 S.W.2d 934, 936 (Tenn.Crim.App. 1989).
In Ashby, our supreme court encouraged the grant of considerable discretionary authority to our trial courts in matters such as these. 823 S.W.2d at 171; see State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at 922. "It is not the policy or purpose of this court to place trial judges in a judicial straight-jacket in this or any other area, and we are always reluctant to interfere with their traditional discretionary powers." Ashby, 823 S.W.2d at 171.
Under these guidelines, the trial court did not abuse its discretion by denying the defendant a community corrections sentence. Initially, the defendant was not entitled to a presumption in favor of alternative sentencing as to his three Class B felony convictions. See Tenn. Code Ann. § 40-35-102(6). More importantly, however, the record demonstrates that the defendant has a history of failed alternative sentences. A violation warrant was filed during the probation term for his 1996 worthless check offense after he failed to timely pay restitution. His probation was revoked and he served ninety days in jail after he failed to pay the costs and fines on his 2001 conviction for driving on a revoked license. Further, a community corrections sentence would not serve the interests of society. The proof established that the defendant made his living as a drug dealer. Another defendant, Ms. Hicks, paid his bills and purchased his groceries in exchange for his participation in cocaine sales. Despite the fact that he is a thirty-seven-year-old high school graduate with no reported physical or mental disabilities, the defendant had a work history consisting of only a six-month stint as a country club kitchen laborer in 1999. Finally, the trial court properly determined that the defendant failed to prove an entitlement to community corrections under the "special needs" category of eligibility, having claimed at the hearing that he was no longer addicted to crack cocaine. Although the defendant qualified for consideration of a community corrections sentence, the discretionary authority of the trial court, under these particular circumstances, would prevail.
Accordingly, the judgments of the trial court are affirmed.