IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1998 SESSION
FILED
May 12, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9709-CR-00369
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
GLENN RAY, ) JUDGE
)
Appellant. ) (Denial of Alternative Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM D. MASSEY JOHN KNOX WALKUP
3074 East Street Attorney General and Reporter
Memphis, TN 38128
CLINTON J. MORGAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
PERRY S. HAYES
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Glenn Ray, was convicted in the Shelby County Criminal
Court upon guilty pleas to one (1) count of possession with the intent to sell cocaine
under 0.5 grams and one (1) count of the sale of cocaine under 0.5 grams. He was
sentenced as a Range I offender to concurrent terms of three (3) years and fined
$2,000 for each offense. The trial court denied alternative sentencing. On appeal,
defendant challenges the trial court’s denial of alternative sentencing. We affirm the
judgment of the trial court.
I
Defendant was indicted for the sale of and possessing with the intent to sell
or deliver over 0.5 grams of cocaine, all Class B felonies. These offenses occurred
in June 1995. In a subsequent indictment, defendant was charged with the sale of
and possession with the intent to sell or deliver under 0.5 grams of cocaine, all
Class C felonies. These offenses occurred in October 1995 while defendant was
released on bond for the June offenses.
Pursuant to a negotiated plea agreement, defendant pled guilty to one (1)
count of possession with the intent to sell under 0.5 grams of cocaine and one (1)
count of the sale of cocaine under 0.5 grams. He received an agreed sentence of
concurrent terms of three (3) years and fined $2,000 for each count with the issue
of alternative sentencing to be determined by the trial court.
As to the June offense, defendant testified at the sentencing hearing that he
“found” the drugs on the ground near some apartments. Defendant maintained that
he was not selling drugs. However, when the trial court explained that accepting
money in exchange for drugs meant “selling,” defendant conceded that he had been
selling drugs. The following exchange occurred between defendant and the trial
court:
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THE WITNESS: I had never sold --
been selling dope. I just --
THE COURT: Oh, you didn’t get
any money for it -- you
didn’t ask for money --
selling means you give
them the dope, and they
tried to give you the money.
That’s what selling -- like
you buy a loaf of bread. If
you get a loaf of bread from
Kroger’s, you’ve got to give
them some money, and
they give you the bread --
let you get the bread.
That’s selling bread at
Kroger.
All right. Do you
understand?
THE WITNESS: Yes, sir.
THE COURT: What were yo u
doing? Selling rocks?
THE WITNESS: No, sir. I don’t sell
rocks.
THE COURT: You don’t sell rocks.
Okay. What were you --
what -- I thought they were
offering you money for the
rocks -- did they?
THE WITNESS: Yes, sir.
THE COURT: Did you give them
the rocks?
THE WITNESS: Yes, sir.
THE COURT: Well, what is that?
What did you call that?
THE WITNESS: Well, I mean that’s
selling.
THE COURT: That’s what I call it to
[sic]. Why did you say
you’re not selling . . . didn’t
sell the rock?
THE WITNESS: I had got a hold [of
it], and I just sold it, you
know.
THE COURT: Sold it. Everybody
that sells gets a hold of it.
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The fact that you claim you
-- you found a rock of it
doesn’t mean that selling it
is no longer selling it. . .
Defendant testified that he was employed full time and would abide by any
conditions of alternative sentencing. He claimed that he never sold drugs, except
for these two instances. He stated that he was remorseful for his actions and would
not be involved in any further criminal activity. However, he acknowledged that the
October 1995 offense occurred while he was released on bond for the June 1995
offense. Furthermore, he admitted that he had given the police a false address
when he was arrested in June.
Defendant had a prior criminal record consisting of four (4) misdemeanors.
The earliest of these offenses, malicious mischief, was reduced from a third degree
burglary charge.
The trial court specifically found that defendant was untruthful in his
testimony, which reflected on defendant’s potential for rehabilitation. The court
noted that the second offense occurred while defendant was released on bond for
the first offense. The trial court further found that granting alternative sentencing
would depreciate the seriousness of the offense. Therefore, the trial court denied
alternative sentencing.
II
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
Under the Criminal Sentencing Reform Act of 1989, trial judges are
encouraged to use alternatives to incarceration. An especially mitigated or standard
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offender convicted of a Class C, D or E felony is presumed to be a favorable
candidate for alternative sentencing options in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6).
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d at 169.
A court may also consider the mitigating and enhancing factors set forth in
Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103
considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d
435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the
defendant’s potential or lack of potential for rehabilitation when determining if an
alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State
v. Boston, 938 S.W.2d at 438.
Individualized punishment is the essence of alternative sentencing. State v.
Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). Sentencing must be
determined on a case-by-case basis, tailoring each sentence to that particular
defendant based upon the facts of that case and the circumstances of that
defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).
III
The trial court found, and we agree, that defendant’s testimony was less than
credible. The defendant's lack of credibility is an appropriate consideration and
reflects on a defendant's potential for rehabilitation. State v. Dowdy, 894 S.W.2d
at 306. We also agree that the need to avoid depreciating the seriousness of the
offenses weighs against alternative sentencing. Defendant has a prior criminal
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history and committed the second drug offense while he was on bail for the June
offense. A trial court may properly consider these enhancement factors in
determining if incarceration is appropriate. See State v. Boston, 938 S.W.2d at
438; Tenn. Code Ann. §§ 40-35-210(b)(5), 40-35-114(1) and (13)(A). We also note
that measures less restrictive than confinement have proven unsuccessful for this
defendant.
The trial court considered the appropriate principles of sentencing and found
that defendant was not a good candidate for alternative sentencing. These findings
are entitled to a presumption of correctness. Accordingly, the judgment of the trial
court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
DAVID G. HAYES, JUDGE
WILLIAM M. BARKER, JUDGE
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