IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1999 SESSION
FILED
June 10, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9801-CR-00014
Appellee, )
) Shelby County
V. )
) Honorable Arthur T. Bennett, Judge
)
BRONCHE R. TERRELL, ) (Possession of Controlled Substance)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM D. MASSEY JOHN KNOX WALKUP
3074 East Street Attorney General & Reporter
Memphis, TN 38128
(on appeal) DOUGLAS D. HIMES
Assistant Attorney General
ANDRE STEPTER 425 Fifth Avenue North
231 Bellevue Avenue Nashville, TN 37243
Memphis, TN 38104
WILLIAM L. GIBBONS
District Attorney General
GLEN BAITY
Assistant District Attorney General
Criminal Justice Center, Suite 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Bronche R. Terrell, pleaded guilty to possession of two
pounds of marijuana with intent to sell, a Class E felony. See Tenn. Code Ann. §
39-17-417(g)(1). In accordance with his plea agreement, the trial court
sentenced the defendant to one year and imposed a fine of two thousand
dollars. At a subsequent hearing to determine the manner of service of his
sentence, the trial court ordered that the defendant serve thirty days confinement
and suspended the balance of his sentence with probation. The defendant
appeals, arguing that the trial court erred in denying full probation and imposing
a period of confinement. We AFFIRM the judgment of the trial court.
BACKGROUND
The defendant, his father, and a friend were stopped for speeding while
driving through Memphis, Tennessee, en route from Dallas, Texas to
Washington, D.C. The police obtained written permission to search the
defendant’s vehicle and discovered two pounds of marijuana packed in coffee
grounds in the trunk. The defendant was indicted and pleaded guilty to
possession of marijuana with intent to sell and was sentenced to one year and a
two thousand dollar fine. At a hearing to determine the manner of service of this
sentence, the defendant revealed that he had sold drugs to fund his purchase of
the marijuana in Dallas. He had planned to deliver the marijuana to his cousin in
Washington for resale, and he and his cousin were to split the profit. On cross
examination, the defendant acknowledged the drug problems in Dallas, Texas;
Memphis, Tennessee; and Washington D.C.. He further acknowledged that his
role as a dealer/supplier exacerbated the problem. Based on this evidence, the
trial court found some period of confinement necessary to avoid depreciating the
seriousness of the defendant’s offense and to deter others likely to commit
similar offenses. See Tenn. Code Ann. § 40-35-103(1)(B). Accordingly, the trial
court ordered that the defendant serve thirty days confinement and that he be
placed on probation for the balance of his sentence. The defendant asserts that
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he is entitled to full probation and that a sentence of confinement is not
warranted.
STANDARD OF REVIEW
Appellate review of a challenge to the length or manner of service of a
sentence is de novo on the record, “with a presumption that the determinations
made by the court from which the appeal is taken 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). If our review reflects that the trial court properly considered all relevant
factors and its findings of fact are adequately supported in the record, then this
Court may not disturb the sentence even if we would have preferred a different
result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
The appellant carries the burden of showing that his sentence is improper. See
Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan,
929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
PROBATION
Although the defendant is statutorily eligible for full probation, see Tenn.
Code Ann. § 40-35-303(a), he is not entitled to probation as a matter of law, see
State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Rather, the defendant bears
the burden of establishing his suitability for probation. See Tenn. Code Ann. §
40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).
To meet this burden, the defendant “must demonstrate that probation will
‘subserve the ends of justice and the best interest of both the public and the
defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995)
(quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). Factors
to be considered include the circumstances of the offense; the defendant's
criminal record, social history, and present condition; and the need for
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deterrence. See State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v.
Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). A defendant’s lack of
truthfulness or candor is also an appropriate consideration, as this reflects
negatively on the defendant's potential for rehabilitation. State v. Dowdy, 894
S.W.2d 301, 306 (Tenn. Crim. App. 1994).
CONCLUSION
In the present case, the trial court found that the defendant was not
candid with the court at his sentencing hearing. This finding is clearly supported
by the record, which reflects often nonresponsive and occasionally self-
contradictory testimony by the defendant. In addition, the trial judge found that
the seriousness of the offense merited some time of confinement. Thus, despite
the defendant’s lack of criminal record and his obtaining employment since the
offense, the evidence does not preponderate against the trial court’s decision to
deny full probation. The judgment of the trial court is affirmed.
CONCLUSION
The judgment of the trial court is AFFIRMED.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
JOE G. RILEY, Judge
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State v. Bronche Terrell
Combined Opinion