IN THE COURT OF CRIMINAL APPEALS OF
TENNESSEE FILED
AT KNOXVILLE November 10, 1999
Cecil Crowson, Jr.
SEPTEMBER 1999 SESSION Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9811-CC-00405
)
vs. ) Sevier County
)
MARSHA TRENTHAM, ) Hon. Richard R. Vance, Judge
)
Appellant. ) (Voluntary Manslaughter)
)
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD CANTRELL MILLER PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
DENNIS C. CAMPBELL ERIK W. DAAB
Asst. District Public Defender Assistant Attorney General
140-A Court Ave. 425 Fifth Ave. North
Sevierville, TN 37862 2d Floor, Cordell Hull Bldg.
Nashville, TN 37243-0493
ALFRED G. SCHMUTZER
District Attorney General
STEVEN R. HAWKINS
Asst. District Attorney General
125 Court Ave., Rm. 301-E
Sevierville, TN 37862
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Marsha Trentham, appeals from the trial court’s
sentencing determination in her voluntary manslaughter case. The defendant
received her conviction at a jury trial in the Sevier County Circuit Court for the
shooting death of her husband. In this appeal, she challenges both the length of the
six-year sentence imposed by the trial court and the imposition of incarceration in
the Department of Correction. Following a review of the record, the briefs of the
parties, and the applicable law, we affirm.
In the light most favorable to the state, the evidence at trial
demonstrated that the defendant and the victim, Michael Trentham, had a stormy
marriage. Apparently, the victim was disposed to fits of anger, and his outbursts
had been seen and heard by neighbors on occasion. There is conflicting evidence
whether the victim also physically abused the defendant.
On the evening of January 3, 1996, the victim was angry. Apparently,
he directed unkind words at the defendant. The defendant claimed the victim
threatened suicide and pointed a gun at himself, the defendant, and the couple’s
young child. The defendant claimed she took the gun from the victim, unloaded it,
and hid it under a dishpan. Later, the defendant found the gun. Shortly thereafter,
the victim lay dying on the living room floor of the couple’s trailer home with a bullet
through his forehead. The victim expired several hours later at a hospital.
The state offered expert evidence that the gunshot wound could not
have been self-inflicted based upon the lack of smoke and soot on the victim’s
body, which would be present in a near or contact gunshot wound. The state’s
expert opined that the shot had been fired from a greater distance than would be
possible if the defendant pulled the trigger himself through conventional means. On
the other hand, in the defendant’s tape-recorded call to 911 shortly after the
shooting, she first indicated she shot the defendant in self-defense and later that
she was trying to take the gun away from the victim when it discharged. At the
hospital, the defendant told members of the victim’s family that the victim had
committed suicide. In a statement given to law enforcement the day after the crime,
the victim told the investigator that she had reached to take the gun away from the
defendant, who was threatening suicide, and it discharged. Several months later,
while under the influence of alcohol and marijuana, the defendant told friends that
she had pointed the gun at the victim. The victim had dared her to shoot him, and
thinking the gun was not loaded, the defendant pulled the trigger. At trial, the
defendant claimed she and the victim struggled for the gun, and as she pulled it
away, the weapon discharged.
At trial, the defendant faced conviction of second degree murder;
however, the jury returned a verdict of voluntary manslaughter. At the sentencing
hearing, the trial court imposed a maximum six-year sentence, which it ordered to
be served in the Department of Correction. After the defendant’s motion for
correction or reduction of sentence was denied, see Tenn. R. Crim. P. 35, she filed
this appeal.
I
We preface our consideration of the sentencing issues with a
discussion of the timeliness of this appeal. Judgment was entered on August 17,
1998. The record reflects that no motion for a new trial was filed. A motion for
correction or reduction of sentence was filed on September 16, 1998. The
defendant’s notice of appeal was not filed until November 5, 1998.
In order to be timely, the notice of appeal should have been filed and
received by the clerk of the trial court within 30 days after entry of the judgment.
Tenn. R. App. P. 4(a), (c). If a defendant fails to comply with the Rules of Appellate
Procedure, the appellate court may waive timely filing in the interest of justice.
Tenn. R. App. P. 4(a). Equally, the appellate court may choose not to allow an
untimely appeal in a criminal case. See, e.g., State v. Cleotha Nash, No. 02C01-
9701-CC-00026, slip op. at 3 (Tenn. Crim. App., Jackson, Feb. 18, 1998), perm.
app. denied (Tenn. 1998); State v. Austin Kipling Stratton, No. 01C01-9611-CC-
00472, slip op. at 2-3 (Tenn. Crim. App., Nashville, Dec. 4, 1997). Moreover, the
filing of a motion for correction or reduction of sentence does not serve to toll the
3
time for filing an appeal under Rule 4. State v. Bilbrey, 816 S.W.2d 71, 74-75
(Tenn. Crim. App. 1991).
Unlike many cases in which a notice of appeal is not timely filed, the
defendant has not filed a motion to waive timely filing of the notice of appeal or any
similar pleading. Typically, such filing would contain acknowledgment that the
notice of appeal was not timely filed and would include verified factual and/or legal
assertions why the interests of justice dictate that we should waive timely filing of
the notice of appeal. See Cleotha Nash, slip op. at 3 (appeal dismissed where
neither record nor allegation by the defendant provided sufficient basis for waiver
of timely filing of notice of appeal).
Despite the defendant’s shortcoming in this regard, we reluctantly
waive the timely filing requirement for the notice of appeal. The defendant’s only
concern on appeal is the length and manner of service of her Range I, six-year
sentence. If we were to dismiss the appeal, by the time the direct appellate process
is completed and she petitions for post-conviction relief based upon counsel’s
failure to pursue the direct appeal in a timely manner, the issue will likely be mooted
by the expiration of her sentence. Accordingly, in the interest of justice, we waive
the requirement of timely filing of the notice of appeal. Tenn. R. App. P. 4. We
admonish counsel for this and other appealing parties, however, that this result is
not a preordained conclusion, and we expect acknowledgment and an explanation
when counsel has failed to comply with the Rules of Appellate Procedure.
II
We now turn to the sentencing issues presented in the defendant’s
appeal, whether the sentence is too lengthy and whether an alternative to
incarceration should have been allowed. 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 of the record with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. §40-35-401(d) (1997). This
presumption is “conditioned upon the affirmative showing in the record that the trial
4
court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “The burden
of showing that the sentence is improper is upon the appellant.” Id. In the event the
record fails to demonstrate the required consideration by the trial court, review of
the sentence is purely de novo. Id. If appellate review reflects the trial court
properly considered all relevant factors and its findings of fact are adequately
supported by the record, this court must affirm the sentence, “even if we would have
preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).
In making its sentencing determination, the trial court, at the
conclusion of the sentencing hearing, determines the range of sentence and then
determines the specific sentence and the propriety of sentencing alternatives by
considering (1) the evidence, if any, received at the trial and the 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
involved, (5) evidence and information offered by the parties on the enhancement
and mitigating factors, (6) any statements the defendant wishes to make in the
defendant’s behalf about sentencing, and (7) the potential for rehabilitation or
treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code Ann. §40-35-
103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).
In the present case, the trial court considered the relevant factors and
made findings regarding the enhancement and mitigating factors on the record.
However, the court also made on-the-record comments before the sentencing
hearing indicating its predisposition to requiring incarceration. At the sentencing
hearing, the court substantially relied upon the fact that the crime was a homicide
in imposing an incarcerative sentence. The pre-hearing comments and the reliance
on the mere fact that the crime involved a death were improper. See State v.
Bingham, 910 S.W.2d 448, 454-55 (Tenn. Crim. App. 1995). Accordingly, we
conduct a de novo review unaccompanied by the presumption of correctness.
5
The defendant, a Range I offender, faces a sentence of three to six
years for the Class C felony. At trial, the state argued for the application of three
enhancement factors
(1) The defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range;
...
(9) The defendant possessed or employed a firearm, explosive device or
other deadly weapon during the commission of the offense.
(15) The defendant abused a position of public or private trust, or used a
special skill in a manner that significantly facilitated the commission
or the fulfillment of the offense . . . .
Tenn. Code Ann. § 40-35-114 (1), (9), (15) (1997).
The defendant does indeed have a prior history of criminal behavior.
There was evidence at trial and at the sentencing hearing that she used marijuana
on a regular basis. Furthermore, there is evidence of a romantic relationship with
a fourteen-year-old boy, who spent the night with the defendant on a regular basis,
and with whom she consumed alcohol and smoked marijuana. The fact that these
criminal acts did not result in a conviction is not determinative. See State v. Carico,
968 S.W.2d 280, 287 (Tenn. 1998). This enhancement factor is entitled to
substantial weight. The defendant’s marijuana use spans a number of years; she
violated the law with her young boyfriend while she was on bond; she continued to
use marijuana even after receiving her conviction.
That the defendant possessed a firearm during the commission of the
offense is not open to reasonable dispute. Moreover, possession of a firearm is not
an element of voluntary manslaughter. See Tenn. Code Ann. § 39-13-211 (1997);
State v. David Keith Daugherty, No. 03C01-9203-CR-00082, slip op. at 7 (Tenn.
Crim. App., Knoxville, Aug. 27, 1993); cf. State v. Raines, 882 S.W.2d 376, 385
(Tenn. Crim. App. 1994) (second degree murder). This enhancement factor is
entitled to moderate weight.
We do not find that the defendant abused a position of private trust
in committing the offense. Unlike the situations in State v. Jackson, 946 S.W.2d
329, 334-35 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. 1997), and State
6
v. Kathy Ball, No. 03C01-9512-CC-00387, slip op. at 9 (Tenn. Crim. App., Knoxville,
Oct. 31, 1997), the defendant in this case did not take advantage of her relationship
with the victim in order to set up the crime or otherwise effectuate the offense.
Additionally, we find that “[t]he defendant had no hesitation about
committing a crime when the risk to human life was high . . . .” See Tenn. Code
Ann. § 40-35-144(10) (1997). Although voluntary manslaughter necessarily entails
a high risk to human life, see State v. Samuel D. Braden, No. 01C01-9610-CC-
00457, slip op. at 10-11 (Tenn. Crim. App., Nashville, Feb. 18, 1998), the factor may
be applied where there are one or more individuals other than the victim who are
subject to danger. State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995);
State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994). In the present
case, the defendant shot her husband with their toddler son nearby. This factor is
entitled to moderate weight.
Based upon the immediate presence of the toddler in the room where
the crime was committed, we also find that “[t]he crime was committed under
circumstances under which the potential for bodily injury to a victim was great . . .
.” See Tenn. Code Ann. § 40-35-114(16) (1997); cf. State v. Sims, 909 S.W.2d 46,
50 (Tenn. Crim. App. 1995). We afford this factor moderate weight.
Turning next to the mitigating factors, the defendant claims the
following factors apply
(2) The defendant acted under strong provocation;
...
(3) Substantial grounds exist tending to excuse or justify the defendant’s
criminal conduct, though failing to establish a defense;
...
(8) The defendant was suffering from a mental or physical condition that
significantly reduced the defendant’s culpability for the offense;
however, the voluntary use of intoxicants does not fall within the
purview of this factor;
...
(11) The defendant, although guilty of the crime, committed the offense
under such unusual circumstances that it is unlikely that a sustained
intent to violate the law motivated the criminal conduct;
(12) The defendant acted under duress or domination of another person,
even though the duress or the domination of another person is not
sufficient to constitute a defense to the crime . . . .
Tenn. Code Ann. § 40-35-113(2), (3), (8), (11), (12) (1997).
7
With respect to the first factor claimed by the defendant, action under
strong provocation, we believe the defendant has received the maximum benefit
that the facts of this case will allow by the jury’s verdict of voluntary manslaughter,
rather than second degree murder. Cf. Samuel D. Braden, slip op. at 11-12. As
noted by the trial court, the defendant’s various accounts of the crime were
conflicting, so the degree to which she can claim strong provocation is subject to
some question. Moreover, the defendant’s theory at trial was that the shooting had
been the accidental result of a struggle over a gun, not that she had been strongly
provoked into shooting the victim.
Furthermore, the facts do not demonstrate substantial grounds tending
to excuse or justify the defendant’s actions as contemplated by factor (3). As with
factor (2), the evidence relevant to this factor is marginal at best, and the defendant
has already benefitted from that evidence to the extent that the facts of this case
allow via the jury’s voluntary manslaughter verdict. Cf. State v. Randy Cotham, No.
01C01-9509-CC-00287, slip op. at 9-10 (Tenn. Crim. App., Nashville, Dec. 5, 1996),
perm. app. denied (Tenn. 1997); State v. Cindy Lynn Smith, No. 03C01-9206-CR-
00219, slip op. at 7 (Tenn. Crim. App., Knoxville, Mar. 25, 1993).
There is absolutely no evidence of record that the defendant was
suffering from a mental or physical condition which significantly reduced her
culpability for the offense, as contemplated by factor (8). There is evidence that the
defendant’s life with the victim was unpleasant and stressful, and there is evidence
that the defendant was in need of mental health treatment after the offense. It
appears, however, that the defendant’s need for treatment was related to the
aftermath of the offense, rather than some continuing mental illness which played
a part in the offense itself.
The defendant also claims the benefit of factor (11), that she
committed the offense under such unusual circumstances that it is unlikely she has
a sustained intent to violate the law. At the sentencing hearing, however, the
defendant exhibited a disregard for the law. She admitted to ongoing marijuana
8
use, even after her conviction. Her statement, “I don’t see where a joint every once
in a while to help me go to sleep hurts,” is telling of her indifference to living a lawful
lifestyle. Other evidence before the court established a questionable, at best,
relationship with a fourteen-year-old boy after the offense, with whom she used
alcohol and marijuana.1 Given these circumstances, we do not believe the
defendant has demonstrated the applicability of this mitigating factor.
Finally, we do not believe the evidence demonstrates that the
defendant acted under the duress or domination of another in committing the
offense. The defendant’s theory at trial of an accidental shooting is not consistent
with such a finding.
Upon de novo consideration of the applicable enhancement factors
and lack of mitigating factors, we agree with the trial court’s imposition of a
maximum, six-year sentence.
Next, we consider the manner of service of this sentence. The
defendant came before the court as a presumed favorable candidate for alternative
sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997). This presumption may
be rebutted, however, by evidence to the contrary. Id. Such “evidence to the
contrary” is demonstrated by proof that
(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) (1997).
In the present case, measures less restrictive than confinement have
1
We acknowledge that the use of alcohol by the defendant was not per se
illegal, although it may have been a violation of the terms of her bond. However,
her young friend was far below the legal drinking age. She was at least complicit
if not outright culpable in his underage consumption in her presence. See Tenn.
Code Ann. § 37-1-156(a) (1996).
9
recently been applied unsuccessfully to the defendant. While on bond, the
defendant used marijuana regularly and had a questionable relationship with a
fourteen-year-old boy that included the use of alcohol and marijuana. See State v.
Lisa Gaye Copeland, No. 03C01-9605-CC-00196, slip op. at 5 (Tenn. Crim. App.,
Knoxville, May 13, 1997) (criminal acts committed while on bond); State v. Frederick
Tennial, No. 02C01-9105-CR-00123, slip op. at 6 (Tenn. Crim. App., Jackson, May
20, 1992) (same). The defendant’s unlawful actions both before and after her trial
rebut the presumption of favorable candidacy for alternative sentencing.
Because we find a six-year incarcerative sentence justly deserved for
the defendant’s crime, we affirm the judgment of the trial court.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
GARY R. WADE, PRESIDING JUDGE
_______________________________
JERRY L. SMITH, JUDGE
10