IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST 1999 SESSION
FILED
October 25, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, )
Appellate Court Clerk
)
Appellee, ) C.C.A. No. 02C01-9809-CC-00291
)
vs. ) Benton County
)
DAVID W. FRAZEE, ) Honorable Julian P. Guinn
)
Appellant. ) (Possession of Schedule VI
) Controlled Substance)
)
FOR THE APPELLANT: FOR THE APPELLEE:
TERRY J. LEONARD PAUL G. SUMMERS
Attorney at Law Attorney General & Reporter
126 W. Main Street
P.O. Box 130 PATRICIA C. KUSSMAN
Camden, TN 38320 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
G. ROBERT RADFORD
District Attorney General
BETH BOSWALL
Asst. District Attorney General
P.O. Box 686
Huntingdon, TN 38344
OPINION FILED: _____________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, David W. Frazee, appeals his Benton County Circuit
Court conviction for possession of a Schedule VI controlled substance, a Class A
misdemeanor. See Tenn. Code Ann. § 39-17-418(a) (1997). The trial court
imposed a $250 fine and an eleven-month, 29-day jail sentence, six months of
which is to be served in jail with the remainder to be served on supervised
probation. In his appellate brief, the defendant raised two issues: (1) whether the
convicting evidence was insufficient because the controlled substance was not
properly made an exhibit to the forensic scientist’s testimony, and (2) whether the
trial court erred in not imposing an alternative sentence. During oral argument,
however, the defendant’s counsel conceded that there was no basis in the record
for establishing his claim on the first issue. Accordingly, we have limited our review
to the sentencing issue and have found no error requiring reversal. Thus, we affirm
the judgment of the trial court.
The defendant was prosecuted for the sale of marijuana on the basis
of an August 21, 1997 undercover drug purchase. The defendant acted as an
intermediary between the undercover agent, who gave the defendant $125, and the
defendant’s cousin, who accepted the money and gave the defendant a package
containing an ounce of marijuana to deliver to the agent. The defendant testified
that he did not know that the material in the package was a controlled substance.
Based upon these facts, a jury convicted the defendant of simple possession.
The trial court imposed the fine and the eleven-month, 29-day
sentence on the same day the verdict was returned, despite the defendant’s request
for a delay in sentencing. The trial judge said, “I can always consider motions to
lessen the sentence later.” The defendant later moved for a new trial and a
modification of the sentence. At the hearing on these motions, he presented court
records of 70 general sessions court cases processed between 1993 and 1998 in
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which defendants were sentenced for possession of marijuana. The average length
of incarceration in those cases was 25 days. At the conclusion of the hearing, the
trial court modified the sentence so as to require six months incarceration followed
by five months and 29 days supervised probation. The motion for new trial was
denied.
Against this factual backdrop, we consider the defendant's sentencing
challenge.
In determining whether the trial court has properly sentenced an
individual, this court engages in a de novo review of the record with a presumption
that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)
(1997). In conducting our de novo review, we must consider the evidence at
sentencing, the presentence report, the sentencing principles, the arguments of
counsel, the statements of the defendant, the nature and characteristics of the
offense, any mitigating and enhancement factors, and the defendant’s amenability
to rehabilitation. Tenn. Code Ann. § 40-35-210(b) (Supp. 1998); Tenn. Code Ann.
§ 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. On appeal, the appellant has
the burden of showing that the sentence imposed is improper. Tenn. Code Ann. §
40-35-401(d), Sentencing Comm'n Comments (1997); Ashby, 823 S.W.2d at 169.
In felony sentencing, the trial court has an affirmative duty to state in
the record, either orally or in writing, which enhancement and mitigating factors it
found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); Tenn. Code
Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman, 979 S.W.2d 271, 274 (Tenn.
1998). In contrast, the misdemeanor sentencing statute only requires that the trial
court consider the enhancement and mitigating factors when calculating the
percentage of the sentence to be served "in actual confinement" prior to
"consideration for work release, furlough, trusty status and related rehabilitative
programs." Tenn. Code Ann. §§ 40-35-302(d) (1997); Troutman, 979 S.W.2d at
3
274.
A separate sentencing hearing is not mandatory in misdemeanor
cases, but the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. See Tenn.
Code Ann. §40-35-302(a) (1997). Misdemeanor sentences must be specific and
in accordance with the principles, purpose, and goals of the Criminal Sentencing
Reform Act of 1989. Tenn. Code Ann. §§40-35-104, 302 (1997); Tenn. Code Ann.
§40-35-117 (1997); State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The
misdemeanor offender must be sentenced to an authorized determinant sentence
with a percentage of that sentence designated for eligibility for rehabilitative
programs. Generally, a percentage of not greater than 75% of the sentence should
be fixed for a misdemeanor offender; however, a DUI offender may be required to
serve 100% of his sentence. Palmer, 902 S.W.2d at 393-94. In determining the
percentage of the sentence, the court must consider enhancement and mitigating
factors as well as the legislative purposes and principles related to the sentencing.
Id.
Upon service of that percentage, the administrative agency governing
the rehabilitative programs determines which among the lawful programs available
is appropriate. The trial court retains the authority to place the defendant on
probation either immediately or after a term of periodic or continuous confinement.
Tenn. Code Ann. §40-35-302(e). The legislature has encouraged courts to consider
public or private agencies for probation supervision prior to directing supervision by
the Department of Correction. Tenn. Code Ann. §40-35-302(f). The governing
statute provides that the trial court has continuing jurisdiction in misdemeanor cases
and a wide latitude of flexibility. The misdemeanant, unlike the felon, is not entitled
to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829
(Tenn. Crim. App. 1994).
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Moreover, the provisions of the Tennessee Community Corrections
Act of 1985 are not applicable to misdemeanants. See generally Tenn. Code Ann.
§ 40-35-106 (1997). Thus, the only sentencing alternatives available to
misdemeanants are the payment of a fine and some form of probation. See Tenn.
Code Ann. § 40-35-104 (c) (1997).
In determining whether to grant probation, the reviewing court
considers “the circumstances of the offense, the defendant’s criminal record, the
defendant’s social history and present condition, the need for deterrence, and the
best interest of the defendant and the public.” State v. Goode, 956 S.W.2d 521, 527
(Tenn. Crim. App. 1997).
In the case sub judice, the gravamen of the defendant’s sentencing
complaint is that he should have received straight probation, or in any event, no
more than the average 25 days of confinement imposed upon other defendants
convicted of the same crime.
At the time of sentencing, Frazee had no prior criminal convictions;1
however, the trial court pointedly found that Frazee testified untruthfully when he
claimed not to have known that the package he exchanged for $125 contained
marijuana. In response to the defendant’s claim of ignorance, the trial judge asked,
“Do you think everybody in this courtroom is just a bumbling idiot? . . . Mr. Frazee,
you know, sometimes the truth just serves you so much better.” As we have often
observed, a defendant’s lack of credibility is an appropriate consideration in
determining suitability for probation because it reflects on the defendant’s potential
for rehabilitation. See, e.g., Goode, 956 S.W.2d at 527; State v. Chestnut, 643
S.W.2d 343, 353 (Tenn. Crim. App. 1982). In the present case, the trial court made
1
The record reflects that at least one other controlled substance sale
case was pending against the defendant at the time of sentencing in the present
case.
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a credibility assessment that is supported by the record and to which we must defer.
See State v. Raines, 882 S.W.2d 376, 383 (Tenn. Crim. App. 1994) (credibility
assessments are entrusted to the trial court because that court has the opportunity
to hear and see the witnesses in person and to judge their “manner and
demeanor”). Given the defendant's lack of truthfulness, the trial court appropriately
denied straight probation.
Thus, we take up review of the sentence actually imposed. In this
respect, we are initially hampered by the trial court's failure to specify the
percentage of service in confinement in its judgment form, as well as by the
somewhat ambiguous statements the court made at the sentencing hearing.
Considering first the failure to state a percentage of service in the
judgment form, we observe that as a general proposition, “[i]f no percentage is
expressed in the judgment, the percentage shall be considered to be zero percent
(0%).” Tennessee Code Annotated § 40-35-302(d) (1997). However, ”[w]hen this
court has been faced with a transcript of the sentencing hearing clearly indicating
the trial court’s intention that the defendant’s percentage is not zero percent, . . . we
have deferred to the trial court’s express pronouncement as reflected in the
transcript.” State v. Dion Andres Russell, No. 03C01-9803-CR-00092, slip op. at
15 (Tenn. Crim. App., Knoxville, Apr. 7, 1999) (emphasis in original), applic. for
perm. app. filed (Tenn. June 7, 1999); see also State v. Rickey Hailey, No. 02C01-
9705-CR-00198, slip op. at 6 (Tenn. Crim. App., Jackson, May 14, 1998); State v.
Roscoe C. Smith, No. 01C01-9502-CR-00031, slip op. at 3 (Tenn. Crim. App.,
Nashville, Oct. 12, 1995). In the present case, the record clearly demonstrates that
trial court intended to impose jail time for a portion of the defendant's sentence.
Thus, we may defer to the trial court's express pronouncements as revealed in the
transcript.
In this regard, the trial court said, “[s]ix months of [the sentence] will
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have to be served in confinement.” Given the fact that the maximum percentage
of service in a non-DUI misdemeanor is 75 percent, the questions presented are
what percentage was intended and whether the percentage is applied to eleven
months and 29 days or to six months.
We believe that the record as a whole reflects that the sentence the
trial judge intended to impose was eleven months and 29 days. Even though the
probation that the trial court awarded and that is authorized by Code subsection 40-
35-302(e) does not equate to eligibility for rehabilitative programs that is described
in subsection (d), we discern that the trial court’s intent was to “fix a percentage of
the sentence” by expressing the confinement time in terms of months rather than
a numerical percentage. See Tenn. Code Ann. § 40-35-302(d) (1997) (emphasis
added). Hence, the court essentially established an eleven-month, 29 day sentence
to be served in confinement at 50 percent. This interpretation assures the
confinement of six months which the trial court articulated. The grant of probation
after the six months, or 50 percent, is served renders the eligibility for rehabilitative
services superfluous, but we believe the above interpretation of the record comports
with the expressed intent of the trial judge. We take this opportunity to point out that
an appellate court can more precisely fathom the trial court’s intent on such an issue
if, in the trial court’s sentencing regimen and its judgment, it squarely and expressly
addresses the section 40-35-302(d) percentage issue.
Finally, we reach the question of whether this sentence is appropriate
given the facts of this case. We begin by rejecting the argument that Frazee should
receive no more than 25 days in jail because that was the average jail sentence
imposed in 70 recent, local cases. Sentencing issues must be determined by the
facts presented in each individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1966). “Any case-by-case approach will embody discretion, since all of the
appropriate facts and circumstances must be weighed and considered as a whole
for the disposition of each case . . . .” Id. As we observed in State v. Michael Leon
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Chambers, No. 01C01-9505-CC-00143, slip op. at 6 (Tenn. Crim. App., Nashville,
June 20, 1996), "[t]here is no requirement for equal sentences among co-
defendants." By analogy, this principle is equally applicable to the situation at bar.
Upon our de novo review, we conclude that the trial court followed the
requirements of the sentencing law, and its determination is supported by the
record. The defendant has failed to carry his burden of showing that the sentence
imposed is improper. See Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n
Comments (1997); Ashby, 823 S.W.2d at 169.
Accordingly, we affirm the judgment of the trial court.
______________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_____________________________________
DAVID H. WELLES, JUDGE
_____________________________________
JERRY L. SMITH, JUDGE
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