State of Tennessee v. Chesney Cheyenne Bowling

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
October 25, 2011 Session

STATE OF TENNESSEE v. CHESNEY CHEYENNE BOWLING

Appeal from the Criminal Court for Sullivan County
Nos. 58652, 56655 R. Jerry Beck, Judge

No. E2011-00928-CCA-R3-CD Filed May 2, 2012

The Defendant, Chesney Cheyenne Bowling, was sentenced by agreement to consecutive
sentences of three and one-half years and eleven months and twenty-nine days following her
plea of guilty to various drug-related offenses. It is from the trial court’s denial of alternative
sentencing that the Defendant appeals. Specifically, the Defendant argues that the trial court
attributed excessive weight to her criminal history while not attributing sufficient weight to
proof she offered in mitigation. Following our review, we affirm the judgments of the trial
court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE, J., joined. J ERRY L. S MITH, J., not participating.

Richard A. Spivey, Kingsport, Tennessee, for the appellant, Chesney Cheyenne Bowling.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On August 4, 2009, the Defendant was charged by presentment for offenses which
resulted from a traffic stop and subsequent search of her hotel room on May 24, 2009. The
offenses included one count of possession with the intent to sell or deliver cocaine, less than
.5 grams; one count of possession with the intent to sell or deliver alprazolam; one count of
simple possession of marijuana; one count of simple possession of benzylpiperazine; one
count of possession of drug paraphernalia; and one count of maintaining a dwelling used for
keeping or selling controlled substances. On April 20, 2010, the Defendant filed a motion
to suppress the evidence found during the May 24, 2009 incident, but the motion was later
withdrawn at the plea hearing.

On November 18, 2010, the Defendant executed a waiver of indictment or
presentment of the grand jury and agreed to be charged by information for several new
offenses she had committed while on bond. The new charges were acquired on May 14,
2010, and included one count of simple possession of cocaine, one count of simple
possession of buprenorphine, one count of simple possession of alprazolam, one count of
possession of drug paraphernalia, and one count of simple possession of oxycodone. Also
on November 18, 2010, the Defendant submitted her request for acceptance of a guilty plea
and waiver of rights, pleading guilty to all six counts in the presentment and all five counts
charged by information.

I. Guilty Plea Hearing

At the November 18, 2010 guilty plea hearing, the State outlined the facts supporting
the Defendant’s guilty pleas. Regarding the charges occurring on May 24, 2009, the State
submitted the following facts:

On May the 24th of 2009 at approximately 4:20 in the morning, Trooper
David Osborne was in a stationary position on Interstate 26 when a black
GMC Yukon passed his location. Trooper Osborne was able to, with the use
of his radar equipment, determine that the vehicle’s speed was 89 miles an
hour in a 55 mile-an-hour zone.

Trooper Osborne had noticed that the GMC took off at the Wilcox exit,
and Trooper Osborne at this point in time proceeded to follow the Yukon.
And as he followed the Yukon, he noticed the Yukon change lanes several
times, though there was no other traffic on the roadway at that hour of the
morning that would justify it — the vehicle’s actions.

Based upon the fact that the vehicle was in excess of the posted speed
limit, as well as some of the other observations made by Trooper Osborne, he
stopped the vehicle and identified Mr. Bennett as the driver and Ms. Bowling
as the front seat passenger. He immediately detected the odor of alcohol as
well as the odor of burnt marijuana coming from the vehicle.

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 He spoke to Mr. Bennett, and Mr. Bennett admitted that he had been
drinking several beers earlier in the evening. When asked to produce a
driver’s license, Mr. Bennett only produced an ID, and it was later determined
that in fact Mr. Bennett’s driver’s license . . . was revoked.

At some point in time he spoke to — he asked first for Mr. Bennett to
step out of the vehicle, and he talked to Mr. Bennett at length trying to
determine if Mr. Bennett was in fact under the influence of alcohol or other
intoxicants to the point of justifying the charge of driving under the influence.
After performing several field sobriety tests, the trooper was satisfied that
there was not a basis to charge him with DUI.

But trying to continue the investigation as to the odor of marijuana that
he had smelled from the vehicle or smelled in the vehicle, the trooper then
spoke to Ms. Bowling, who acknowledged that she was the owner of the
vehicle. He told her that he had smelled marijuana in there. He asked her for
consent to search the vehicle and she said that he could; that there was nothing
in the vehicle. Mr. Bennett also was asked and gave consent for a search of
the vehicle.

And the officer, in the course of searching the vehicle, found a set of
digital scales with white residue in the center console which would be
consistent with the use of the scales for the purposes of weighing controlled
substances. He also found a marijuana cigarette that had been freshly smoked
or had the presence of the indication that it had been recently smoked, as well
as 12 to 14 pills in a plastic bag in a cigarette pack in the glove box.

The two of them were asked as to where they were coming from, where
they were going. Ms. Bowling indicated that they were staying at the Days
Inn. She was asked if there was anything illegal in the motel room. She
indicated there was not, and upon being asked for a consent to search, she
produced a key to the motel room and turned it over to the trooper.

The two of them were asked as far as who the motel room was
registered to. Mr. Bennett said the hotel room was in his name. Ms. Bowling
said that the hotel room was in her uncle’s name.

Based upon all of the circumstances that the trooper found, as well as
many inconsistencies, it was determined that the motel room would be
searched and the Kingsport Police Department Patrol Division was asked to

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assist Trooper Osborne, since he was occupied there at the site of the traffic
stop.

. . . [P]olice officers with the Kingsport Police Department did in fact
respond, got the hotel room key, and upon opening the door of the motel room
that the two occupied, they found immediately in plain view green plant
material believed to be marijuana loose on a table, along with a plastic Baggie,
a pill crusher with marijuana on it, a blue pill that they believed to be Ecstasy,
a razorblade, cigarette cellophane which appeared to contain marijuana seeds.

To the right of the doorway they observed a pack of razorblades that
were laying on the coffee table, and on top of the microwave a tan-colored
rock they believed to be crack cocaine. On the sink Sgt. Sean Chambers
observed a box of baking soda, a plastic grocery bag containing white powder
believed to be baking soda, a large measuring cup, and a plastic Baggie corner
containing white residue . . . along with a metal whisk.

Cpl. Chambers, a former director of the Sullivan County Drug Task
Force as well as a vice officer with many years of experience, would have
tendered as a witness to testify to the process of taking powder cocaine, and
the use of baking soda, microwave, and other ingredients to produce or make
crack cocaine.

All of the items that were seized in the vehicle occupied by Mr.
Bennett and Ms. Bowling were sent to the Tennessee Bureau of Investigation’s
crime laboratory, where an analysis by a forensic chemist with that agency
made the determination that present among the exhibits tendered to the lab for
analysis were cocaine base, a Schedule II controlled substance; marijuana, a
Schedule VI controlled substance; a considerable number of alprazolam, a
Schedule IV controlled substance; also benzylpiperazine, a Schedule I
controlled substance which we refer to as Ecstasy.

....

As part of the follow-up investigation, motel records regarding the
room registration were obtained from the motel, and it was determined that a
Mr. Larry Gilbert had rented the room. Mr. Gilbert was located and
interviewed, and Mr. Gilbert would testify that he was familiar with Ms.
Bowling and Mr. Bennett, knew them to be boyfriend and girlfriend. That he
had rented a number of rooms for them in the past since they were from

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 Knoxville. That he was personally familiar or aware of the fact that they
would rent rooms for the purposes of being in this area, and then would make
trips from the room and sell cocaine.

On this particular occasion they gave him money to rent the room and
to put the room under his name. Upon renting the room, he was given a small
piece of cocaine which he used in the room. He also would have testified that
he has been present when the two of them have gone through the process of
converting powder cocaine to rock cocaine or crack cocaine base.

The motel room as well as the location of the traffic stop are within the
county boundaries of Sullivan County.

Both the Defendant and her co-defendant agreed that the trial court could consider the
stipulated facts above as a basis of the plea, despite their disagreement with some of the facts.

Regarding the information charges committed on May 14, 2010, the State outlined the
following facts:

In that case, Your Honor, on May the 14th of 2010, patrol officers with
the Kingsport Police Department received information regarding a narcotics
complaint at a motel located at 700 Lynn Garden Drive, and specifically were
directed to Room 204 which was occupied by Ms. Bowling and three other
individuals.

. . . Ms. Bowling, as well as the other occupants, were advised of the
complaint of narcotics being sold or used out of the room, and were coming
out of the room, and were asked for consent for the officers to enter into the
room, which all gave.

Upon entry into the room Amanda Lunsford asked for permission to
search the room for narcotics, and again, all of the . . . occupants, including
Ms. Bowling, agreed.

In the search of the room and of the occupants a number of controlled
substances were located, as well as located [sic] was a box of Glad Sandwich
Bags. The box of Glad Sandwich Bags had several bags in which the corners
had been removed from the Baggies. The corners of Baggies is a commonly-
used way of packaging smaller amounts of controlled substances. Also there
were more Baggies with the ends cut off located in the trash can. As a result

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 of the presence of the drugs as well as the drug paraphernalia in the room, all
of the occupants were arrested.

And in the course of searching Ms. Bowling, it was determined that Ms.
Bowling had in her possession $984, despite the fact that she was unemployed.

The drugs that were taken from the room were sent to the Tennessee
Bureau of Investigation’s crime laboratory where Michael Bleakley, a forensic
chemist who has testified as an expert in this court in the past, took the items
submitted, analyzed them, and made the determination that among the
controlled substances found in the room were buprenorphine, or what is
commonly referred to as Suboxone, a Schedule III controlled substance;
alprazolam, a Schedule IV controlled substance; oxycodone, a Schedule II
controlled substance; and cocaine base, a Schedule II controlled substance.

The location of this motel room is again within the county boundaries
of Sullivan County, Tennessee.

Again, the Defendant agreed that the trial court could consider the stipulated facts above as
a basis for the plea, despite her disagreement with some of the facts.

Pursuant to the plea agreement, the Defendant agreed to serve three years and six
months for the offenses charged by presentment and eleven months and twenty-nine days for
the offenses charged by information. The sentences were to run consecutively, for an
effective sentence of four years, five months and twenty-nine days. The manner of service
was reserved for the trial court, and an alternative sentencing hearing was held on April 26,
2011.

II. Alternative Sentencing Hearing

The only evidence presented by the State at the alternative sentencing hearing was the
Defendant’s presentence report. The State opposed any form of alternative sentencing and
argued that the Defendant should serve her time in confinement. The presentence report
illustrated that the Defendant had several prior convictions, mostly for minor offenses.

After viewing the report, the trial court preliminarily noted that “[o]n the positive side,
the Defendant obtained her GED in 2004 at Knox County Historic High.” However, the
court explained that the Defendant’s prior record was a “[n]egative factor” and that it would
consider the following prior convictions in determining whether alternative sentencing was
appropriate: (1) driving with suspended license, 2010; (2) driving with suspended license,

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2009; (3) driving while intoxicated (DWI), first offense, 2009; (4) possession of schedule IV
drugs, 2009; (5) reckless driving, 2009; (6) assault, 2007; (7) driving under the influence
(DUI), 2004; and (8) disorderly conduct, 2004.1

The Defendant testified on her own behalf at the alternative sentencing hearing. She
testified that she had quit all of her drug use, except the occasional use of marijuana. The
Defendant also testified that she was no longer selling or dealing drugs and had distanced
herself from those who continued to sell or deal drugs. She explained that she wanted
probation because she “would like to go to school, and continue taking care of [her] kids,
because [she] is the only person they have.” The Defendant reported that she was physically
and sexually abused by her brother at a young age, and it caused her to enter into abusive
relationships. She explained that she had not spoken with a counselor about her issues
because she was not “able to come up with the money.”

The Defendant admitted that her actions were wrong, but she explained that she was
just “[b]eing a girlfriend and just going with the flow.” When asked if she kept any of the
money, the Defendant stated, “I have nothing from what I had. I have nothing. Because the
one thing you know about the game, it’s gone just as soon as you get it.” In closing, the
Defendant made the following statement to the court:

Your Honor, I’m not the best person in the world. I’m not. And I have
made mistakes. Please don’t take me away from my babies. I’m all they have.

And I know I messed up. Like I said, I know I messed up. But there’s
nothing I can do about it but try to correct my life from here. And this is the
first serious trouble I’ve ever been in.

I’m sorry. And all I’m asking is for you to please consider giving me
probation. I’ll do whatever it takes. I will. I just don’t want to be took [sic]
away from my babies.

On cross-examination, the Defendant admitted that she was required to go through
alcohol and drug classes after one of her children tested positive for marijuana at birth. She
also admitted that she was personally selling drugs with her co-defendant and that they
“would come from Knoxville to Kingsport to sell drugs.” The Defendant conceded that she

1
The Defendant’s presentence report incorrectly reflected an additional conviction for DUI. After verifying
that the conviction was listed in error, the trial court went through each offense named in the Defendant’s
criminal history and noted which offenses listed therein it would consider in determining the appropriateness
of an alternative sentence.

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knew her co-defendant used the same man to rent rooms for him in exchange for the motel
room price and cocaine. She agreed that her May 24, 2009 charges were acquired only nine
days after she was convicted of possession of drugs, reckless driving, and driving on a
suspended license. The Defendant also admitted that she committed the May 14, 2010
offenses while on bail for the May 24, 2009 offenses, and that she subsequently acquired an
additional charge of driving on a suspended license in November of 2010.

After considering the evidence presented and the arguments of counsel, the trial court
issued the following findings of fact in its denial of alternative sentencing:

The Defendant in this case has a prior record. I’ll not go through it.
We’ve gone through it here on the record, and it’s contained in the presentence
report that’s been marked as Exhibit 1.

The Defendant is 24 years of age. She has been arrested, arrested, and
arrested for something, whether you characterize it as major or minor. I don’t
see any hope it’s going to change any.

She talks about her children. But one of the children was born with
marijuana in [its] blood system.

She went to a drug treatment program. It obviously didn’t do any good.
My option after that: Well, send her to another drug treatment program [sic].

She is not — there’s nothing positive in her report except that she has
two children, which I sympathize for. I sympathize for them two reasons; one,
one of them was — came out positive for drugs. And she says she cares about
them. I don’t know about that.

. . . I’m going to deny probation. That’s for sure. And I’m going to
deny relief under the Community Corrections special needs.

Now, now I’ve got to do something with these children.

....

She’s 24, and I think she’s using the children no more than just a shield,
another way to get out of a problem she’s in.

The Defendant orally requested the court to reconsider the eleven month and twenty-

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nine day sentence on the offenses charged by information. The State opposed the motion,
citing the need for finality, and the trial court agreed. The motion was denied, and the
Defendant immediately filed her notice of appeal.

ANALYSIS

The Defendant contends that the trial court erred in two ways in imposing her
sentence: (1) attributing excessive weight to her criminal history, while failing to consider
applicable mitigating factors in its determination of her sentence, and (2) denying alternative
sentencing, specifically, probation and community corrections under the special needs
provision. The Defendant argues that she is a favorable candidate for alternative sentencing,
and her issues with drugs qualify her for admission into the Community Corrections Program
under the special needs provision. The State responds that the record reflects that the trial
court considered the appropriate sentencing principles and properly exercised its discretion
in declining to grant community corrections.

An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the
Sentencing Commission Comments to this section note, on appeal the burden is on the
Defendant to show that the sentence is improper. Because the 2005 amendments to the 1989
Sentencing Act rendered the sentencing guidelines merely advisory, the trial court is now free
to select any sentence within the applicable range so long as the length of the sentence is
“consistent with the purposes and principles of [the Sentencing Act].”State v. Carter, 254
S.W.3d 335, 343 (Tenn. 2008); See also Tenn. Code Ann. § 40-35-210(d). Those purposes
and principles include “the imposition of a sentence justly deserved in relation to the
seriousness of the offense,” id. § 40-35-102(1), a punishment sufficient “to prevent crime and
promote respect for the law,” id. § 40-35-102(3), and consideration of a defendant’s
“potential or lack of potential for . . . rehabilitation,” id. § 40-35-103(5). Carter, 254 S.W.3d
at 343.

For the purpose of meaningful appellate review, the trial court is required to place on
the record, either orally or in writing, what mitigating or enhancement factors were
considered, if any, as well as its reasons for arriving at the final sentencing decision. Tenn.
Code Ann. § 40-35-210(e); See also Carter, 254 S.W.3d at 343. Thus, if the trial court
followed the statutory sentencing procedure and made findings of fact that are adequately
supported in the record, this court may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991); see also Carter,
254 S.W.3d at 346. Should the record fail to demonstrate the required considerations by the
trial court, then appellate review of the sentence is purely de novo. State v. Ashby, 823

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S.W.2d 166, 169 (Tenn. 1991).

In conducting its de novo review, the appellate court must consider

(1) [t]he evidence, if any, received at the trial and sentencing hearing, (2) the
presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) evidence and information offered by the parties on the mitigating
and enhancement factors set out in §§ 40-35-13 and -14; (6) any statistical
information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; and (7) any statement that the
defendant made on his own behalf.

Carter, 254 S.W.3d at 343; see also Tenn. Code Ann. §§ 40-35-113, -114, -210(b); Ashby,
823 S.W.2d at 168.

No defendant is entitled to a presumption that he or she is a favorable candidate for
alternative sentencing. Carter, 254 S.W.3d at 347. However, a defendant who does not
possess a criminal history showing a clear disregard for society’s laws and morals, who has
not failed past rehabilitation efforts, and who “is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary . . . . A court shall
consider, but is not bound by, this advisory sentencing guideline[.]” Tenn. Code Ann. §
40-35-102(5), (6)(A) & (D); see Carter, 254 S.W.3d at 347.

The following considerations provide guidance regarding what constitutes “evidence
to the contrary”:
(A) Confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct;

(B) 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

(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103(1); see also Carter, 254 S.W.3d 335, 347. Additionally, the
principles of sentencing reflect that the sentence should be no greater than that deserved for

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the offense committed and should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4).

It is well-settled that a defendant is only eligible for community corrections under the
special needs provision if that defendant is also eligible for probation. See Tenn. Code Ann.
§ 40-36-106(c); see, e.g., State v. Johnson, 342 S.W.3d 520, 522 (Tenn. Crim. App. 2009);
State v. Cowan, 40 S.W.3d 85, 86 (Tenn. Crim. App. 2000); State v. Kendrick, 10 S.W.3d
650, 655 (Tenn. Crim. App. 1999); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App.
1996). A defendant is eligible for probation if the “sentence actually imposed [is] ten (10)
years or less[,]” and the trial court is required to automatically consider probation as a
sentencing option. Tenn. Code Ann. § 40-35-303(a), (b). A defendant’s potential for
rehabilitation or lack thereof should be examined when determining if an alternative sentence
is appropriate. Tenn. Code Ann. § 40-35-103(5). A defendant seeking full probation bears
the burden of showing that probation will “‘subserve the ends of justice and the best interest
of both the public and the defendant.’” Carter, 254 S.W.3d at 347; State v. Dykes, 803
S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State, 201 Tenn. 156, 297
S.W.2d 78, 81 (Tenn. 1956)), overruled on other grounds by State v. Hooper, 29 S.W.3d 1,
9-10 (Tenn. 2000). Among the factors applicable to probation consideration are the
circumstances of the offense, the defendant’s criminal record, social history, and present
condition, the deterrent effect upon the defendant; and the best interests of the defendant and
the public. State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002); State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978).

The record reflects that the trial court properly considered the Defendant’s request for
alternative sentencing. Relative to its denial of full probation, the trial court expressed great
concern over the Defendant’s repeated involvement in the criminal justice system, and her
previous failed attempt at drug treatment. Although the Defendant is statutorily eligible for
probation, we cannot say that the court’s decision to deny probation was in error. The court
considered the appropriate sentencing principles and, implicitly2 , found that the Defendant’s
criminal history showed a disregard for society’s laws and morals and that she had
previously failed rehabilitation attempts. The court concluded that confinement was
necessary because measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the Defendant. Thus, we conclude that the trial court properly
denied probation in this case.

2
Other panels of this court have reasoned that implicit findings were sufficient to fulfill the requirement
under Dye and Bearden. See State v. Roderick Dean Hughes, E2009-00649-CCA-R3-CD, 2009 WL 3787251,
at *4 (Tenn. Crim. App. Nov. 12, 2009), State v. Bernita Hogan, M2002-00808-CCA-R3-CD, 2003 WL
1787312, at *4-5 (Tenn. Crim. App. Apr. 4, 2003), perm. app. denied, (Tenn. Sept. 8, 2003).

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 As to the trial court’s denial of community corrections, a defendant may qualify for
community corrections based upon the special needs provision found at Tennessee Code
Annotated section 40-36-106(c), which provides, in pertinent part:

Felony offenders not otherwise eligible under subsection (a), and who would
be usually considered unfit for probation due to histories of chronic alcohol or
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
this chapter.

Id.

The trial court failed to make any specific findings regarding the Defendant’s
suitability for community corrections and instead denied all forms of alternative sentencing
in its ruling. Although defense counsel argued that the Defendant should be considered a
candidate for community corrections under the special needs provision in light of her history
of drug abuse, the court properly exercised its discretion in denying this alternative sentence.
The trial court did preliminarily note that the Defendant had successfully completed
probation in the past and that she had discontinued her use of all drugs, except the occasional
use of marijuana. However, the Defendant did not testify that she was in need of treatment
for drug addiction, nor does the record support such an assertion. The trial court’s findings
of fact clearly indicate a concern with the Defendant’s potential for rehabilitation and
likelihood to re-offend in light of (1) her criminal history; (2) her commission of a similar
crime while on bail; and (3) her past failed attempt at substance abuse treatment, as related
to marijuana. These concerns are supported by the record. We conclude that the trial court
gave appropriate consideration to the sentencing factors in arriving at its determination.
Under these circumstances, we conclude that the trial court did not abuse its discretion in
denying community corrections. See State v. Boston, 938 S.W.2d 435, 439 (Tenn. Crim.
App. 1996).

Accordingly, we conclude that the trial court properly denied alternative sentencing
in this case.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.

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 ________________________________
D. KELLY THOMAS, JR., JUDGE

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