IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1999
FILED
STATE OF TENNESSEE, ) February 3, 1999
) No. 02C01-9808-CC-00246
Appellee ) Cecil Crowson, Jr.
) CHESTER COUNTY Appellate C ourt Clerk
vs. )
) Hon. John Franklin Murchison, Judge
PHENIX H. ROSS, )
) (Possession of Marijuana)
Appellant )
For the Appellant: For the Appellee:
C. Michael Robbins John Knox Walkup
46 North Third Street Attorney General and Reporter
Suite 719
Memphis, TN 38103 Elizabeth T. Ryan
Assistant Attorney General
(ON APPEAL) Criminal Justice Division
425 Fifth Avenue North
George Morton Googe 2d Floor, Cordell Hull Building
District Public Defender Nashville, TN 37243-0493
Michael Rasnake
Asst. Public Defender
227 West Baltimore Street James G. (Jerry) Woodall
Jackson, TN 38301 District Attorney General
(AT TRIAL) Nick Nicola
Asst. District Attorney General
P. O. Box 2825
Jackson, TN 38302-2825
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Phenix H. Ross, 1 was found guilty by a Chester County jury of
possession of marijuana, a class A misdemeanor. At a subsequent sentencing
hearing, the trial court imposed a sentence of eleven months and twenty nine days,
suspending all but one hundred and twenty days with the balance of the sentence to
be served on supervised probation. The appellant now appeals the sentencing
decision of the trial court.
After review of the record, we affirm.
Background
On February 11, 1997, at approximately 9:50 p.m., Henderson Police Officer
Ronnie Faulkner was called to a local Bull Market convenience store. The clerk at
the store directed the officer’s attention to the appellant who at the time was in his
vehicle on the parking lot with the engine running. As the car door opened, Officer
Faulkner detected a strong odor of alcohol. Faulkner requested that the appellant
perform a field sobriety test, which the appellant was unable to successfully execute.
The appellant was then arrested for driving under the influence and Faulkner
conducted a pat down search of his person. The pat-down resulted in the discovery
of a pack of rolling papers in the appellant’s front pocket. The appellant was placed
in the patrol car, and Officer Faulkner, now accompanied by Chester County Deputy
Weaver, conducted a search of the appellant’s vehicle. Faulkner discovered a white
plastic bag on the floorboard of the passenger’s side of the appellant’s car. The bag
contained, what was later confirmed to be, 1.7 grams of marijuana. The appellant
1
The indictment reflects that the appellant’s middle initial is “H.” The testimony developed
at the appellant’s trial indicates that the appellant’s middle name is Neshano.
2
was transported to the county jail where he refused to take a breathalyser test.2 He
was subsequently indicted for driving under the influence and possession of
marijuana. A jury found the appellant not guilty of the DUI charge but guilty as to the
possession charge.
At the sentencing hearing, the State relied upon proof of the appellant’s two
prior DUI convictions. The appellant’s proof consisted of three character witnesses:
his minister, his wife, and his employer. The appellant’s minister testified that the
appellant occasionally attended church and worked for the church. The appellant’s
wife stated that she and the appellant had three children and that “he works every
day.” Finally, the appellant’s employer testified that the appellant had a “good
attendance record. He’s there on time. He is multi talented, versatile -- I depend on
him every day.”
The trial court’s findings are noted as follows:
I think an appropriate sentence in this case would be imprisonment for
11 months and 29 days and a $500 fine. He has got to serve some jail
time because he has two prior very super serious misdemeanors, and
those being driving under the influence of an intoxicant, and, of course,
in this case he did possess marijuana -- and he did possess rolling
papers. I am not counting that as an enhancement or anything, and
he wasn’t convicted of that. He did have it. I think an appropriate jail
period would be 120 days.
Accordingly, the defendant is sentenced to a period of imprisonment of
11 months and 29 days, all suspended but 120 days, which he must
serve. He can serve that on work release, if he can qualify with the
Sheriff.
Analysis
Again, the appellant alleges that the trial court’s imposition of 120 days
incarceration is excessive. Specifically, the appellant complains that the trial court
2
The appellant’s refusal ultimately resulted in his driving privileges being suspended for a
period of six months pursuant to Tenn. Code Ann. § 55-10-406.
3
failed to consider his lack of criminal history, his stable employment, and his
responsibilities as provider for his family in determining an appropriate sentence. In
addressing the appellant’s challenge, we are mindful that our de novo review is
conditioned with the presumption that the sentencing determination of the trial court
is correct. See Tenn. Code Ann. § 40-35-401(d) (1997). Moreover, the appellant
bears the burden of establishing that the sentence imposed by the trial court is
improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).
The misdemeanor offender must be sentenced to an authorized determinant
sentence with a percentage of that sentence designated for eligibility for
rehabilitative programs. See State v. Hailey, No. 02C01-9705-CR-00198 (Tenn.
Crim. App. at Jackson, May 14, 1998); see also Tenn. Code Ann. § 40-35-302
(1997). Notwithstanding this limitation, the court can grant probation immediately or
after a period of split or continuous confinement. See Tenn. Code Ann. § 40-35-
302(e). The governing statute is designed to provide the trial court with continuing
jurisdiction in misdemeanor cases and a wide latitude of flexibility. See Troutman,
979 S.W.2d at 273.
In determining the appropriate term of confinement, the trial court should
consider that the misdemeanant, unlike the felon, is not entitled to the presumption
of a minimum sentence, State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim., App.
1994), and that the burden of establishing suitability for probation rests with the
defendant. Tenn. Code Ann. § 40-35-303(b). With these considerations, the trial
court should examine the misdemeanor offense in the light and character of the
circumstances of the offense as well as under the mandated sentencing principles.
State v. Brannon, No. 03C01-9508-CR-00233 (Tenn. Crim. App. at Knoxville, Apr. 3,
1996), perm. to appeal denied, (Tenn. Nov. 4, 1996)).
In the present case, the appellant was convicted of a class A misdemeanor.
4
The penalty for a Class A misdemeanor is a term of imprisonment “not greater than
eleven months, twenty nine days.” See Tenn. Code Ann. § 40-35-111(e)(1). In
sentencing the appellant, the trial court relied heavily upon the seriousness of the
appellant’s prior convictions for driving under the influence. The fact that the
appellant occasionally attended church, was a good employee, and provided for his
family do not outweigh the appellant’s prior criminal history and obvious failed
attempts at rehabilitation. Certainly, the trial court’s imposition of a sentence of one
hundred and twenty days confinement was consistent with the principles, purposes
and goals of the Sentencing Act and was not an abuse of the court’s discretion. The
appellant’s challenge is without merit.
The judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________
JOE G. RILEY, Judge
__________________________________
JOHN EVERETT W ILLIAMS, Judge
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