04/25/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 21, 2017
STATE OF TENNESSEE v. MARK ODEN POTTS
Appeal from the Circuit Court for Bedford County
No. 18281 Franklin L. Russell, Judge
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No. M2016-02079-CCA-R3-CD
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Defendant, Mark Oden Potts, pled guilty to various drug-related offenses. He received an
effective sentence of eight years as a standard offender. On appeal, he argues that the
trial court abused its discretion by denying an alternative sentence of probation or
community corrections. After reviewing the record, we affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.
Donna L. Hargrove, District Public Defender, and Andrew Jackson Dearing III, Assistant
Public Defender, for the appellant, Mark Oden Potts.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Summary and Procedural History
Defendant was indicted for: (1) possession of .5 grams or more of
methamphetamine for resale, a Class B felony; (2) possession of .5 grams or more of
methamphetamine for delivery, a Class B felony; (3) simple possession of marijuana, a
Class A misdemeanor; and (4) possession of drug paraphernalia, a Class A misdemeanor.
Defendant pled guilty as charged, and the State presented the following factual basis for
the offenses:
[O]n December 11, 2015, agents of the Drug Task Force met with a
confidential informant about purchasing approximately an ounce of
methamphetamine from Gina Plant and the defendant. The price that was
agreed upon between Gina Plant and the confidential informant was $1750
for the ounce.
The confidential informant then met with Gina Plant at a location
here in Bedford County, where the confidential informant fronted the
money to Ms. Plant, and was expected to be contacted at either later that
day or possibly a later date, when she actually had the drugs in hand.
She was then observed after that exchange took place. The
defendant was observed coming to the same location, picking Ms. Plant up,
they went back to the defendant’s residence for a period of time. They then
returned to that location, and Ms. Plant was returned to her vehicle and she
left.
The defendant was then followed, and he ultimately left town. He
went to Murfreesboro. I believe at the Walmart parking lot he met with an
individual [and] was observed in a hand-to-hand exchange with that
individual. And they then parted ways. The defendant continued to be
followed. By now it’s into the evening hours, approaching midnight.
The defendant went to a residence in Williamson County. He stayed
for a period of time and then he left. He was making his way, he ultimately
returned back here to Bedford County, where a traffic stop was made.
. . . [A] search of the vehicle revealed methamphetamine. It was sent
to the lab. It weighed 17.4 grams. There was a small amount of marijuana
that was found. There were . . . digital scales, baggies, and I believe a glass
pipe. . . . [T]he individual that the defendant met with in the Walmart
parking lot in Murfreesboro, he too was stopped and identified. And . . .
from his person was recovered $950 of the money that was given by the
confidential informant to Ms. Plant. The defendant was found to be in
possession of only $20 of the money. . . . [A]t a later date, Ms. Plant was
interviewed, and she acknowledged that she kept $200 herself. . . . The
defendant elected not to be interviewed.
The trial court held a sentencing hearing to determine the length and manner of
service of Defendant’s sentences. At the sentencing hearing, the State introduced a copy
of the pre-sentencing report. Officer Shane George of the Shelbyville Police Department
testified that he had been with that office for seventeen years, sixteen of which were also
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served on the 17th Judicial District Drug Task Force. Through Officer George’s
experience on the Drug Task Force, he has received additional training on the
manufacture, distribution, and usage of methamphetamine. Officer George had
investigated “countless cases of individuals being involved in the making and distribution
of” methamphetamine. He had also encountered “a number of persons who were
addicted to that drug” because methamphetamine is “highly addictive.”
Officer George explained that there is a common form of methamphetamine
known as “shake and bake” or “one pot meth,” which is created using pseudoephedrine,
and there is a purer form of methamphetamine known as “ice.” Regarding the former,
Officer George explained:
[T]he shake and bake problem I’ve been investigating here probably for the
past eight or nine years. If I was to estimate, . . . for that period of time, it
was the overwhelming scourge on the 17th District. The pharmacies were
getting blown down by people that were smurfing for pseudoephedrine.
They would come in at the peak of all this activity . . . three, four, five
people deep lining up in the pharmacy lines, all to get as much
pseudoephedrine as they could get. And once law enforcement and the law
makers saw that that was happening, of course they enacted laws to combat
that. And it helped for a short period of time, but then [they] revamped the
methods that they would use to get the pseudoephedrine . . . . And then,
they were sidestepping a lot of the implementations that were in place, just
maybe five years ago. So, every step that law enforcement took to try to
lessen the impact of that drug on the community, the users, the producers,
the people that were selling the drug just for monetary gain were
sidestepping those implementations. And the reason for it is because the
people that get hooked on this drug, it’s very hard to get off it. In fact, it’s
almost zero percent that you’re going to get off this drug without some very
intense professional help. And the majority of the people out here that are
hooked on this drug either can’t afford the professional help or don’t have
the support network from family and friends that they need to even attempt
to get off of it. So, . . . once the people experience the drug, they’re pretty
much hooked from that point forward. And it’s in the process right now of
knocking crack cocaine and cocaine off the streets. Now, the street gangs .
. . have picked up moving the ice. So, it’s just continuing to morph into an
even bigger problem than it was.
Officer George opined that there was a significant need to deter the illegal
distribution of methamphetamine in the community because he had “personally seen a
number of people” become addicted to the drug and lose everything. Because it is so
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difficult to be rehabilitated from a methamphetamine addiction, Officer George explained
that “jail is the only place for a person that’s going to keep them from the drug.”
Officer George testified that he was involved in the investigation of Defendant in
this case. Prior to the investigation in this case, Officer George first learned of Defendant
through reports that he was “allowing his residence to be used as a safe haven for meth
cooks.” Officer George eventually arrested one of the cooks, who admitted to
Defendant’s role in the scheme. Defendant would allow his home to be used in exchange
for a portion of the finished product. Defendant was also ordering “ice” through FedEx,
which would eventually make its way to the streets for distribution.
Bill Caskey testified for the defense that he met Defendant in the late 1990s
because Defendant was a teacher at the same school as Mr. Caskey’s wife. Mr. Caskey
and Defendant developed a friendship through a mutual interest in college baseball.
Defendant was a “very successful girls’ basketball coach.” Eventually, Defendant began
providing lawn care services to Mr. Caskey for “eight or ten years.” Defendant did an
“excellent” job. Mr. Caskey was familiar with Defendant’s two children, whom he
described as “good kids.” Mr. Caskey also knew Defendant’s “caring mother.”
Throughout the course of their friendship, Mr. Caskey never suspected Defendant
of drug use. During the summer of 2014, Defendant ceased all communication with Mr.
Caskey. When Mr. Caskey learned that Defendant was incarcerated, he went to visit him
at the jail. Defendant “was remorseful that he had hurt his family and his friends.”
Defendant wanted to be rehabilitated and “to get his life straightened out.” Mr. Caskey
asked the court to show leniency and to help Defendant get rehabilitation.
Sheila Bearden Trolinger testified that she used to be Defendant’s girlfriend for a
few years in the early 2000s. During their time together, she never suspected Defendant
of using illegal drugs. After the couple broke up, Ms. Trolinger continued to help take
care of Defendant’s mother, who has some heart and blood pressure issues. At the time
of the hearing, Defendant’s mother had recently turned eighty-eight years old. She has
no living relatives other than Defendant, her only son. Ms. Trolinger testified that she
needs Defendant’s help to provide adequate care for Defendant’s mother. The
condominium Defendant’s mother rented for four years was sold, and there was no one to
help her move. Ms. Trolinger did not think that she would be able to move Defendant’s
mother on her own.
Ms. Trolinger spoke with Defendant numerous times since he was arrested and
also visited him at the jail. She felt that Defendant was sincere about his desire to get his
life back in order. Ms. Trolinger asked the court to give Defendant an opportunity to be
rehabilitated and to return to helping his family.
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Defendant made an allocution to the court, in which he described the positive
influences he had growing up. His father died when he was six years old. Defendant
recounted his many successes as a teacher and a coach. He retired from education to
focus on his lawn care business and to take care of his family. He began to have health
problems, having developed a painful case of plantar fasciitis and pneumonia. Defendant
described the accomplishments of his two children and the needs his mother has due to
her health troubles. Defendant stated his desire to be rehabilitated from his drug
addiction and apologized for hurting and disappointing his family and the community.
After hearing the proof, the trial court merged both of the felony convictions for
possession of an illegal substance with intent to sell or deliver and found Defendant to be
a standard offender. The trial court remarked that this was “a very difficult case.”
Defendant had a minor history of criminal convictions for driving while impaired and
resisting arrest, but the trial court was more concerned with the hearsay reports of
Defendant’s extensive involvement with the manufacture of methamphetamine.
However, the trial court chose not to give “a great deal of weight” to Defendant’s
criminal behavior and criminal history. The trial court imposed a minimum sentence of
eight years for possession of .5 grams or more of methamphetamine with intent to sell or
deliver. The trial court imposed sentences of eleven months and twenty-nine days for
both of the misdemeanors. All sentences were to be served concurrently.
On the issue of alternative sentencing, the trial court opined, “Quite frankly, if he
were given probation, I’d be signing his death warrant.” The trial court was very
concerned about the risk of relapse. The trial court took note of Defendant’s positive
contributions to the community and remarked that Defendant “had an incredible number
of friends, who loved him dearly,” over the course of his life. The trial court found that
incarceration was the best means of rehabilitation for Defendant. The trial court further
found that incarceration was necessary to avoid depreciating the seriousness of the
offense in a county with “an absolute epidemic of ice.” Accordingly, the trial court
denied alternative sentencing.
Defendant filed a timely notice of appeal.
Analysis
Defendant argues that the trial court abused its discretion by denying alternative
sentencing. The State disagrees.
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse
of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d
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682, 707 (Tenn. 2012). The same standard of review applies to a trial court’s decision
regarding “probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012). This Court will uphold the trial court’s sentencing decision
“so long as it is within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles listed by statute.”
Bise, 380 S.W.3d at 709-10. Moreover, under those circumstances, we may not disturb
the sentence even if we had preferred a different result. See State v. Carter, 254 S.W.3d
335, 346 (Tenn. 2008). The party appealing the sentence has the burden of
demonstrating its impropriety. T.C.A. § 40-35-401, Sent’g Comm’n Cmts.; see also
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A trial court considers the following factors when determining the sentence for a
criminal conviction: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the appellant in his own behalf; and (8) the potential for rehabilitation or treatment.
See T.C.A. §§ 40-35-102,-103,-210; see also Bise, 380 S.W.3d at 697-98.
Tennessee Code Annotated section 40-35-102(3)(C) provides that “[p]unishment
shall be imposed to prevent crime and promote respect for the law by . . . [e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the
use of alternative sentencing and correctional programs that elicit voluntary cooperation
of defendants[.]” Tennessee Code Annotated section 40-35-104(c)(9) authorizes a
“sentence to a community based alternative to incarceration . . . .” Additionally, “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be imposed,”
and “[t]he length of a term of probation may reflect the length of a treatment or
rehabilitation program in which participation is a condition of the sentence[.]” T.C.A. §
40-35-103(5).
A defendant is eligible for probation if the sentence imposed is ten years or less.
T.C.A. § 40-35-303(a). Although “probation shall be automatically considered by the
court as a sentencing alternative for eligible defendants,” the defendant bears the burden
of “establishing suitability” for probation. T.C.A. § 40-35-303(b). “This burden includes
demonstrating that probation will ‘subserve the ends of justice and the best interest of
both the public and the defendant.’” State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008)
(quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). A
defendant who is sentenced as an especially mitigated or standard offender and who has
committed a Class C, D, or E felony should be “considered as a favorable candidate for
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alternative sentencing options,” if certain conditions are met. T.C.A. § 40-35-102(5),
(6)(A). The guidelines regarding favorable candidates are advisory. T.C.A. § 40-35-
102(6)(D). In this case, Defendant was convicted of a Class B felony and received an
eight-year sentence. Therefore, although Defendant was eligible for alternative
sentencing, he was not a favorable candidate for alternative sentencing.
The purpose of the Community Corrections Act of 1985 was to “[e]stablish a
policy within the state to punish selected, nonviolent felony offenders in front-end
community based alternatives to incarceration, thereby reserving secure confinement
facilities for violent felony offenders[.]” T.C.A. § 40-36-103(1). Eligible offenders
under the Community Corrections Act include:
(A) Persons who, without this option, would be incarcerated in a
correctional institution;
(B) Persons who are convicted of property-related, or drug- or alcohol-
related felony offenses or other felony offenses not involving crimes
against the person as provided in title 39, chapter 13, parts 1-5;
(C) Persons who are convicted of nonviolent felony offenses;
(D) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
(E) Persons who do not demonstrate a present or past pattern of behavior
indicating violence; and
(F) Persons who do not demonstrate a pattern of committing violent
offenses.
T.C.A. § 40-36-106(a)(1). However, simply because an offender meets the minimum
requirements under the Community Corrections Act “does not mean that he is entitled to
be sentenced under the Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288,
294 (Tenn. Crim. App. 1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.
App. 1987)). Instead, the Act’s criteria “shall be interpreted as minimum state standards,
guiding the determination of eligibility of offenders under this chapter.” T.C.A. § 40-36-
106(d).
Tennessee Code Annotated section 40-35-103(1) dictates that sentences involving
confinement be based on the following considerations:
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(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]
Additionally, the sentence imposed “should be no greater than that deserved for the
offense committed” and also “should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4).
In this case, the record demonstrates that the trial court carefully considered the
purposes and principles of the Sentencing Act as well as the sentencing factors. The trial
court was candid that this was a very difficult case involving an individual who
historically enjoyed good standing within the community and who made substantial
contributions to the community during his career in education. Unfortunately, however,
Defendant’s life unraveled due to a powerful addiction to methamphetamine.
The trial court considered the nature of the offenses and Defendant’s potential for
rehabilitation. The trial court heard testimony from character witnesses about
Defendant’s success as a father, his family’s needs, and his remorse. The trial court also
heard an untested allocution indicating a desire for rehabilitation. Ultimately, the trial
court concluded that the best chance for Defendant’s rehabilitation was through
incarceration given the highly addictive nature of methamphetamine. In that regard, the
trial court was genuinely concerned with Defendant’s personal wellbeing. Although
Defendant was a prima facie candidate for Community Corrections, the trial court found
that confinement was necessary to avoid depreciating the seriousness of
methamphetamine-related crimes. On this point, the trial court heard testimony that
methamphetamine use in that part of the State of Tennessee has become an epidemic.
After reviewing the record, we cannot say that the trial court abused its discretion by
denying alternative sentencing. Defendant is not entitled to relief.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
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TIMOTHY L. EASTER, JUDGE
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