IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
September 3, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9707-CC-00255
Appellee, )
) MONTGOMERY COUNTY
VS. )
) HON. JOHN H. GASAWAY III,
JOHN WAYNE MANSELL, ) JUDGE
)
Appellant. ) (Delivery of Schedule VI Controlled
Substance)
FOR THE APPELLANT: FOR THE APPELLEE:
RUSSELL A. CHURCH JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
109 South Second Street
Clarksville, TN 37040 GEORGIA BLYTHE FELNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
ARTHUR BIEBER
Assistant District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040
OPINION FILED:
AFFIRMED
LEE MOORE,
SPECIAL JUDGE
OPINION
The appellant, John Wayne Mansell, was indicted during the January, 1993,
term of the Montgomery County grand jury for possession of a Schedule VI
controlled substance for resale and unlawful possession of a deadly weapon. On
April 30, 1997, after selection of a jury and commencement of trial, defendant
entered a plea of guilty to the delivery of a Schedule VI controlled substance under
Count Two of the indictment. Counts One and Three of the indictment were
dismissed. The plea of guilty was subject to judicial sentencing. On June 9, 1997,
a sentencing hearing was held. Defendant was sentenced to two (2) years with six
(6) months of his sentence being served in jail and the balance on probation.
Defendant was also fined $5,000.00.
For the reasons stated hereinafter, the judgment of the trial court is affirmed.
SENTENCING- STANDARD OF REVIEW
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).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-
210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing
2
hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
and arguments as to sentencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5) [e]vidence and
information offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
defendant wishes to make in his own behalf about sentencing.
If no mitigating or enhancement factors for sentencing are present, Tenn.
Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the
minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d
785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court
should start at the minimum sentence, enhance the minimum sentence within the
range for enhancement factors and then reduce the sentence within the range for
the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for
each factor is prescribed by the statute, as the weight given to each factor is left to
the discretion of the trial court as long as the trial court complies with the purposes
and principles of the sentencing act and its findings are supported by the record.
State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,
848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.
Nevertheless, should there be no mitigating factors, but enhancement factors are
present, a trial court may set the sentence above the minimum within the range.
Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638
(Tenn. Crim. App. 1994).
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.
3
A court may also consider the mitigating and enhancing factors set forth in
Tenn. Code Ann. §§ 40-35-113 and 40-35-114 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.
There is no mathematical equation to be utilized in determining sentencing
alternatives. Not only should the sentence fit the offense, but it should fit the
offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467
(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of
alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). In summary, 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).
A.
The defendant contends the trial court erred by inappropriately using non-
statutory enhancing factors in sentencing the defendant and imposed a sentence
too harsh for the circumstances. At the sentencing hearing held on June 9, 1997,
the trial court applied one enhancement factor finding that the defendant had a prior
criminal history. The trial court found no applicable mitigating factors. The
presentence report reflects two (2) convictions for attempt to commit the felony of
burglary in 1968 and a conviction of burglary in 1969, along with a disorderly
conduct conviction in 1967. The presentence report also indicated that there was
a 1966 conviction for petit larceny. Although the convictions occurred in the 1960's,
the finding of the trial court was that the defendant had a previous history of criminal
4
convictions or criminal behavior in addition to those necessary to establish the
appropriate range was proper. There is no evidence that the trial judge used non-
statutory enhancing factors in arriving at the appropriate sentence.
Although the trial court made no specific comments regarding mitigating
factors, it is obvious from the record that the trial court found no applicable
mitigating factors. Appellant contends in his brief that he was not a principal actor
in the offense in question. This contention is not a mitigating factor unless it would
have applied to Tenn. Code Ann. § 40-35-113(4) indicating that the defendant
played a minor role in the commission of the offense. The record does not support
this contention.
According to the presentence report, the appellant indicated that he was a
marijuana user at the time of his arrest. He indicated in the presentence report that
he was no longer a marijuana user. However, at his sentencing hearing he
indicated that he had used marijuana over the memorial day weekend which date
was between the date of the guilty plea and the sentencing hearing. The trial court
sentenced the appellant to pay a $5,000.00 fine and to serve two (2) years. The
trial court suspended the sentence to six (6) months and placed the appellant on
probation for the balance of the sentence. Based upon a de novo review of the
record, this Court is of the opinion that the sentence imposed by the trial court was
appropriate. The credibility of the appellant regarding his use of marijuana was
certainly poor. Lack of candor by an accused can result in the denial of an
alternative sentence. In this case, however, the trial court imposed an alternative
sentence. The trial court could have denied an alternative sentence due to the
appellant's lack of candor. Instead, the court imposed a lenient sentence. The
court was justified in requiring the appellant to serve a part of the sentence based
upon his lack of candor.
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LEE MOORE, SPECIAL JUDGE
CONCUR:
JOE G. RILEY, JUDGE
CURWOOD WITT, JUDGE
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9707-CC-00255
Appellee,
) Montgomery County No. 31796
vs. )
6
) (Delivery of Schedule VI Controlled
) Substance)
JOHN WAYNE MANSELL, )
) AFFIRMED
Appellant. )
JUDGMENT
Came the appellant, John Wayne Mansell, by counsel, and the state, by the
Attorney General, and this case was heard on the record on appeal from the
Circuit Court of Montgomery County; and upon consideration thereof, this Court
is of the opinion that there is no reversible error in the judgment of the trial court.
It is, therefore, ordered and adjudged by this Court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Circuit Court of
Montgomery County for execution of the judgment of that court and for collection
of costs accrued below.
It appears that appellant is indigent. Costs of appeal will be paid by the State
of Tennessee.
Per Curiam
Lee Moore, Special Judge
Joe G. Riley, Judge
Curwood Witt, Judge