IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION FILED
March 31, 1998
STATE OF TENNESSEE, * C.C.A. # 02C01-9704-CR-00158
Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, * SHELBY COUNTY
VS. * Hon. Bernie W einman, Judge
THOMAS L. MATTHEWS, * (Possession of a Controlled Substance
With Intent to Sell and Deliver)
Appellant. *
For Appellant: For Appellee:
Marvin Ballin John Knox Walkup
200 Jefferson Avenue, Suite 1250 Attorney General & Reporter
Memphis, TN 38103
Georgia Blythe Felner
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Paul Goodman
Assistant District Attorney General
201 Poplar Street, Suite 301
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Thomas L. Matthews, pled guilty to one count of
unlawful possession of a controlled substance with intent to sell. Tenn. Code Ann.
§ 39-17-417. The plea agreement included a Range II sentence of six years with
the trial court to determine the manner of service. The trial court ordered service of
the sentence in the county workhouse. In this appeal of right, the defendant claims
the court erred by denying Community Corrections.
We affirm the judgment of the trial court.
On March 15, 1996, a search warrant was issued for a property
located at 1190 Greenwood in Shelby County. The defendant, who was present at
the time of the search, was found in possession of six and one-half grams of
cocaine.
At the sentencing hearing, the defendant, fifty-eight years old, testified
that he became "heavily involved" in the drug business about eight to ten years ago.
He admitted having prior convictions for drug offenses and for violating his terms of
parole. The presentence report confirms at least four prior drug-related convictions
and two parole violations, the most recent in 1994, only two years before this
offense.
The defendant completed eighth grade. He worked for a barber for
over fifteen years and, for several years thereafter, was self-employed in the real
estate business. At the time of this drug offense, he was an assistant in a paint
business.
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The defendant testified that he suffers from sickle cell disease, which
causes aching in the bones, joints, and muscles. He has high blood pressure and
an ulcer. The defendant asked for an alternative sentence because of his "special
needs," insisting he could get his life on the right track. He explained that a series of
bad events had led him into trafficking illegal drugs.
When a challenge is made to the length, range, or manner of service
of a sentence, it is the duty of this court to conduct a "de novo review ... 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). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210.
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are, of course, presumed to be favorable candidates "for alternative
sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. §
40-35-102(6). With certain statutory exceptions, none of which apply here,
probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b).
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Among the factors applicable to probation consideration are the
circumstances of the offense, the defendant's criminal record, social history, and
present condition, and the deterrent effect upon and best interest of the defendant
and the public. State v. Grear, 568 S.W.2d 285 (Tenn. 1978). The purpose of the
Community Corrections Act of 1985 was to provide an alternative means of
punishment for "selected, nonviolent felony offenders in front-end community based
alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The Community
Corrections sentence provides a desired degree of flexibility that may be both
beneficial to the defendant yet serve legitimate societal aims. State v. Griffith, 787
S.W.2d 340, 342 (Tenn. 1990). That the defendant meets the minimum
requirements of the Community Corrections Act of 1985, however, does not mean
that he is entitled to be sentenced under the Act as a matter of law or right. State v.
Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are
eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
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In State v. Ashby, our supreme court encouraged the grant of
considerable discretionary authority to our trial courts in matters such as these. 823
S.W.2d 166, 171 (Tenn. 1991). See State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at
922. "It is not the policy or purpose of this court to place trial judges in a judicial
straight-jacket in this or any other area, and we are always reluctant to interfere with
their traditional discretionary powers." Ashby, 823 S.W.2d at 171.
In denying Community Corrections, the trial court observed, "I don't
believe that the legislature intended for someone with your record to ... be out on the
streets." We agree. Initially, there is no presumption in favor of alternative
sentencing for a Range II offender. Tenn. Code Ann. § 40-35-102(6). That the
defendant has continued to commit drug offenses "indicates a lack of potential for ...
rehabilitation." Tenn. Code Ann. § 40-35-103(5). That the defendant had at least
two violations of the conditions of parole indicates "[m]easures less restrictive than
confinement have ... unsuccessfully" been applied to him. Tenn. Code Ann. § 40-
35-103(1)(C).
The defendant contends the trial court did not give due consideration
to his ill health. That a person is in "ill health" and requires "constant medical
attention" may be a factor in support of the grant of an alternative sentence. Ashby,
823 S.W.2d at 170. The defendant did not, however, offer any proof showing his
condition could not be treated in the prison facility or that it required "constant
medical attention."
Accordingly, the judgment of the trial court is affirmed.
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__________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Joe B. Jones, Presiding Judge
______________________________
Jerry L. Smith, Judge
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