IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JANUARY 1997 SESSION
FILED
April 17, 1997
Cecil Crowson, Jr.
STATE OF TENNESSEE, )
Appellate C ourt Clerk
)
Appellee, ) No. 03C01-9602-CC-00068
)
vs. ) Blount County
)
MICHAEL STAMM, ) Honorable D. Kelly Thomas, Judge
)
Appellant. ) (Sentencing - Sale of Cocaine)
)
FOR THE APPELLANT: FOR THE APPELLEE:
NATALEE STAATS HURLEY CHARLES W. BURSON
Asst. District Public Defender Attorney General & Reporter
419 High Street
Maryville, TN 37804 LISA A. NAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
MICHAEL L. FLYNN
District Attorney General
PHILIP MORTON
Asst. District Attorney General
Blount County Courthouse
Maryville, TN 37801
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
Appellant, Michael Stamm, appeals the sentence imposed by the
Circuit Court of Blount County following his guilty plea to sale of cocaine, a Class
B felony. The court imposed a ten year sentence on appellant, a Range I
offender, to be served in custody of the Tennessee Department of Corrections. 1
In imposing this sentence, the court relied on appellant's criminal history as an
enhancing factor and the lack of a violent act and appellant's voluntary
submission to drug rehabilitation following his apprehension as mitigating factors.
In this direct appeal, appellant contends the trial court erred in sentencing him to
serve time in custody of the Department of Corrections, rather than ordering an
alternative sentence in the Community Corrections Program. On review of the
record before us, we affirm the sentence imposed by the trial court.
In a three-count indictment, appellant was charged with possession
of cocaine with intent to sell and deliver, sale of cocaine, and delivery of cocaine,
all occurring on October 4, 1993 in violation of Tenn. Code Ann. § 39-17-417.
Each of these three counts is a Class B felony. Appellant pleaded guilty to
delivery of a controlled substance on March 31, 1994. This plea was accepted
by the court, but Appellant later withdrew it based upon a mutual mistake of law
between the district attorney and appellant's attorney that appellant was a Range
II offender. Appellant thereafter entered a guilty plea on the sale of cocaine
charge on August 31, 1995.
A sentencing hearing was held, at which appellant testified he was
a 29-year-old custodial single parent of two children, ages 9 and 2-1/2.
1
The trial court also ordered a $2,000 fine and $100 restitution. Appellant has raised
no issue relative to the propriety of either amount.
2
Appellant further testified he had an "extensive" drug abuse problem dating back
thirteen years. He testified he was employed as a painter earning $200 to $300
per week. Appellant acknowledged several previous felony convictions,
including multiple forgeries and sales of marijuana and cocaine; however, he
testified he committed these crimes to support his drug habit. Appellant
expressed his wish to receive drug rehabilitation services and testified about his
enrollment in a private, one week rehabilitation program following his
apprehension on the present charges. He testified he had been unable to
continue this private program after the first week due to lack of adequate health
insurance coverage and had relapsed into drug use only two days after release
from this program. Appellant further testified he had been evaluated and
determined eligible for the Community Corrections Program. He admitted on
cross examination he violated his probation for previous convictions on multiple
occasions, failed to appear at an earlier sentencing hearing for the withdrawn
guilty plea, and twice failed to assist in preparation of the presentence report by
contacting the probation office.
The record reveals appellant had six previous Class E felony
convictions, the accuracy of which were not contested by defense counsel at the
sentencing hearing. Further, the state offered a certified copy of a five-count
forgery conviction, which was received without objection. Neither party called
Ms. Ridings, the Community Corrections official whom appellant testified
evaluated him for the program, and no report regarding appellant's eligibility for
Community Corrections was offered into evidence.
Appellant's issue for resolution by this court is whether the trial
court erred in sentencing him to the Tennessee Department of Corrections rather
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than to an alternative sentence under the Community Corrections Act, Tenn
Code Ann. § 40-36-101 et seq. The parties have not taken issue with the length
of the sentence imposed by the trial court. We presume from this silence neither
party contends the trial judge's imposition of a ten-year sentence was
inappropriate under the statutory scheme. See Tenn. R. App. P. 13(b) ("Review
generally will extend only to those issues presented for review.") Accordingly, we
review the sentence only insofar as it mandates imprisonment rather than
Community Corrections.
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 the trial court's determinations were correct. Tenn. Code Ann. § 40-
35-401(d) (1990 repl.). The appellant has the burden of showing the sentence
imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n
Comments (1990 repl.); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
With respect to review of issues pertaining to the Community Corrections Act,
this court considers the sentencing considerations announced in Tenn. Code
Ann. §§ 40-35-103 and 40-35-210, the eligibility criteria of the Community
Corrections Act, Tenn. Code Ann. § 40-36-106, and the report of the entity
administering the local Community Corrections Program. State v. Taylor, 744
S.W.2d 919, 920 (Tenn. Crim. App. 1987).
We begin our inquiry by noting appellant, as a Class B felon, is not
presumed to be a favorable candidate for alternative sentencing under the 1989
Sentencing Act. See Tenn. Code Ann. § 40-35-102(6) (1990 repl.). Moreover,
we note that not everyone convicted of a drug-related offense who meets the
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minimum criteria for participation in Community Corrections is entitled to be
sentenced under the Act. Taylor, 744 S.W.2d at 922.
Upon de novo consideration of all of the evidence preserved in the
record, we do not find sufficient evidence to rebut the presumption that the trial
court's sentence was appropriate on the facts of this case. Appellant has had
many brushes with the law, which have resulted in numerous convictions. The
record indicates appellant has never been incarcerated with the Department of
Corrections and has received probation for at least some of these earlier
convictions. The fact that appellant is before this court with yet another
conviction is evidence of the failure of alternative sentencing to reform this
individual's conduct to the bounds of the law. Appellant has had repeated
opportunities to reform himself in an environment less restrictive than
confinement, and he has chosen not to do so. See Tenn. Code Ann. § 40-35-
103(1)(C) (1990 repl.). Moreover, in light of appellant's history of drug-related
convictions, allowing him to receive an alternative sentence for this drug-related
conviction depreciates the seriousness of the offense. See Tenn. Code Ann. §
40-35-103(1)(B) (1990 repl.).
Although not specifically stated as an issue for review, appellant's
brief raises additional mitigating factors not cited by the trial judge at the
sentencing hearing. Those factors are (1) appellant's conduct neither caused
nor threatened serious bodily injury, (2) appellant acted under strong
provocation, and (3) appellant was motivated by a desire to provide necessities
for his family or himself. See Tenn. Code Ann. § 40-35-113(1),(2) and (7) (1990
repl.). Appellant did not specifically request application of these or any other
mitigating factors at the sentencing hearing. Although appellant's counsel makes
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inventive arguments that appellant's drug addiction created "strong provocation"
and a belief that drugs were "necessities," we find neither mitigating factor
applicable to this case. With respect to the other factor cited by appellant, that
his conduct neither caused nor threatened serious bodily injury, the record is
somewhat ambiguous as to the trial judge's actions in applying this factor; 2
however, we believe the trial judge did apply this factor in mitigation at
sentencing. Assuming arguendo, appellant's interpretation of the record is
correct, and further assuming this factor is appropriate for the case before us, 3
we find the application of this as an additional mitigating factor nevertheless fails
to overcome the presumption of correctness of the sentence imposed by the trial
judge.
Finally, we note the trial judge did not make any findings relative to
two additional enhancement factors -- whether appellant had a history of
unwillingness to comply with the conditions of a sentence involving release into
the community and whether appellant committed the offense while on probation
for a another felony conviction. See Tenn. Code Ann. § 40-35-114(8) and (13)
(1990 repl.). On our de novo review, we find that these additional enhancement
factors are applicable to the case at bar and further justify the sentence imposed
by the trial court.
2
At the time of sentencing, the trial judge found, "Enhancing factors is [sic] your
record. A couple of small mitigation factors: One, there's not a violent act involved and
the other, you did seek some voluntary treatment while all this was going on."
(emphasis added). Appellant interprets the "lack of violence" factor to refer to
appellant's past criminal history, not the instant conviction.
3
This court has reached mixed results on the issue of whether lack of potential for
serious bodily injury is an appropriate mitigating factor. See, e.g., State v. Billy Smith,
No. 02C01-9112-CC-00278 (Tenn. Crim. App., Jackson, February 17, 1993); Ricky
Elam v. State, No. 966, (Tenn. Crim. App., Knoxville, March 19, 1991); State v. Clyde
Davis, No. 32, (Tenn. Crim. App., Knoxville, January 23, 1991).
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Accordingly, we affirm the sentence of ten years to be served in
custody of the Tennessee Department of Corrections.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_______________________________
GARY R. WADE, JUDGE
_______________________________
JOSEPH M. TIPTON, JUDGE
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