IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1997 SESSION
FILED
January 20, 1998
Cecil Crowson, Jr.
Appe llate Court C lerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 02-C-01-9612-CC-00473
)
) Dyer County
v. )
) Joe G. Riley, Judge
)
) (Sentencing)
CYNTHIA LYNN MANCELL, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
G. Stephen Davis John Knox Walkup
District Public Defender Attorney General & Reporter
208 North Mill Avenue 500 Charlotte Avenue
Dyersburg, TN 38025-0742 Nashville, TN 37243-0497
Janis L. Turner
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Phillip Bivens
District Attorney General
P.O. Box Drawer E
Dyersburg, TN 38024
OPINION FILED:_____________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Cynthia Lynn Mancell (defendant), was convicted of possessing
marijuana over .5 ounces with intent to sell, a Class E felony, following her plea to the
offense. There was no plea agreement regarding punishment. The trial court conducted
a sentencing hearing, found the defendant to be a standard offender, and sentenced the
defendant to serve ninety (90) days in the Dyer County Jail and serve two (2) years
pursuant to the Community Corrections Act. Tenn. Code Ann. § 40-36-101, et. seq. In this
court, the defendant contends her sentence is excessive. She argues the trial court should
have permitted her to serve the entire sentence pursuant to the Community Corrections
Act. After a thorough review of the record, the briefs submitted by the parties, and the law
governing the issue presented for review, it is the opinion of this court that the judgment
of the trial court should be affirmed.
Dyersburg police officers obtained a search warrant authorizing the search of the
defendant’s residence. While executing the warrant, officers seized 140 grams of
marijuana. The defendant admitted she sold three ounces of marijuana before she was
arrested by the officers. The officers overlooked an additional pound of marijuana located
in the freezer compartment of the defendant’s refrigerator. She subsequently told officers
about the pound of marijuana after she had burned it. The defendant claimed she burned
the marijuana because she thought she would be required to serve a lengthy sentence in
the Department of Correction due to the quantity of marijuana she possessed. An officer
testified he had information the defendant had sold the pound of marijuana.
An officer testified there was “a very large drug problem in Dyer County.” He opined
trafficking in marijuana had increased, stating “its increasing. It’s getting more and more
marijuana now than it was recently.” The officer classified the marijuana possessed by the
defendant as “a sizeable quantity,” which indicated the defendant was trafficking in this
substance.
The defendant is married and the mother of three children. The defendant cares
for her mother-in-law, who suffers from diabetes, blindness, and a mental impairment. She
takes care of her niece and nephew. One of these children is handicapped. The
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defendant’s brother and sister-in-law live with the defendant. The defendant’s husband
and brother are both long distance truck drivers. They are away from home several days
each week.
The defendant was 34 years of age when she was sentenced. She admitted to
trafficking in marijuana. According to the defendant, her husband had surgery for a work-
related injury and had not worked for eight months. She was working to support the family
-- all ten people who lived with her. She became ill and her employer terminated her when
her place of employment closed. Her income was $134 per week. She said she sold
marijuana to help support the family.
The defendant used a $1,000 federal income tax overpayment check to purchase
one and one-half pounds of marijuana. She claimed she was a user of marijuana, and her
supplier, who knew about her financial problems, offered to sell her the marijuana so she
could generate income to support her family. The defendant testified she continued to use
marijuana as a substitute for “nerve medication.”
The trial court found four mitigating factors. The factors included (a) her conduct did
not cause or threaten serious bodily injury, Tenn. Code Ann. § 40-35-113(1), (b) her
criminal conduct related to providing necessaries for her family, Tenn. Code Ann. § 40-35-
113(7), (c) she entered a plea of guilty, Tenn. Code Ann. § 40-35-113(13), and (d) she had
not been convicted of a felony. Tenn. Code Ann. § 40-35-113(13). The court found two
enhancement factors: (a) she has a history of both criminal convictions and criminal
conduct, Tenn. Code Ann. § 40-35-114(1), and (b) she has a history of unwillingness to
comply with conditions of release into the community, Tenn. Code Ann. § 40-35-114(8).
The defendant does not challenge either the mitigating factors or the enhancement factors
found by the trial court.
Several reasons were advanced for requiring the defendant to serve a portion of her
sentence. First, the defendant had several convictions and several admitted acts of
criminal conduct. Tenn. Code Ann. § 40-35-103(1)(A). Second, confinement was
necessary to avoid depreciating the seriousness of the offense committed by the
defendant. Tenn. Code Ann. § 40-35-103(1)(B). Third, there was a need for general
deterrence regarding the selling of illicit narcotics in Dyer County. Tenn. Code Ann. § 40-
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35-103(1)(B). Fourth, less restrictive measures in the past proved to have been
unsuccessful in reforming the defendant’s conduct. Tenn. Code Ann. § 40-35-103(1)(C).
When the defendant challenges the manner in which the sentence is to be served,
it is the duty of this court to conduct a de novo review of the record with a presumption the
factual determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d)
(1997 Repl.). This presum is "conditioned upo the affirma showingintherecordthat thetrial court consideredthe
ption n tive
sentencing prin ples and all relevant facts and circum
ci stances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
pre m n d s n a ly totheleg c clusionsrea edbythetrial co insentencingtheaccusedor tothedeterminations
su ptio oe ot pp al on ch urt
m bythetrial court whicharepredicated uponuncon
ade troverted facts. Statev. Butler, 900S.W.2d305, 311(Tenn. Crim App.
.
1994); S tev S i h, 891S.W.2d922, 929(Tenn. Crim App.), per. app. denied(Tenn. 1994); Statev. Bonestel, 871S.W.2d163,
ta . mt .
166(Tenn. Crim App.1993). How this court isrequiredtogivegreat weight tothetrial court'sdeterminationofcontroverted
. ever,
facts asthetrial court'sdeterminationofthesefactsispredicateduponthewitnesses' demeanorand appearancewhentestifying.
In conducting a de novore w of a se
vie ntence th co m co er (a a e encere ive at th tria and/or
, is urt ust nsid ) ny vid ce d e l
sentencinghearing, (b) thepresentencereport, (c)theprinciplesof sentencing, (d) thearguments ofcounsel relativetosentencing
alternatives, (e) thenatureandcharacteristicsof theoffense, (f) any m igating or enhan ng factors, (g) any statem m b
it ci ents ade y
theaccusedinhisownbehalf, and(h) theaccused'spotential orlackof potential forrehabilitationortreatm Tenn.CodeAnn.
ent.
§§40-35-103and-210; Statev. Scott, 735S.W.2d825, 829(Tenn. Crim App.), per. app. denied(Tenn. 1987).
.
The party challenging the sentences imposed by the trial court has the burden of establishing that the sentences are
erroneous. SentencingCom issionCom entstoTenn. CodeA §40-35-401; Ashby, 823S.W.2dat 169; Butler, 900S.W.2d
m m nn.
at 311. In this case, the defendant has the bu of illustrating the sen
rden tences impo bythe trial court are erroneo
sed us.
The defendant contends this court’s de novo review should be conducted without
a presumption of correctness because the trial court failed to verbalize the presumption
that a person who commits an Class E felony, as the defendant in this case, is presumed
to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6)
(1997 Repl.). Of course, this presumption may be rebutted by evidence which establishes
the defendant is not a favorable candidate for alternative sentencing. Id. Nevertheless, this
court is of the opinion a presumption of correctness should accompany the de novo review
in this case.
While the trial court did not specifically mention the presumption of fitness for
alternative sentencing, it is clear on the face of the record the trial court honored the
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presumption by granting the defendant an alternative sentence, albeit a sentence involving
split confinement. The presumption does not equate to the suspension of the entire
sentence imposed by a trial court or the serving of the entire sentence pursuant to the
Community Corrections Act. In the context of this case, the State of Tennessee
successfully rebutted the presumption in favor of an alternative sentence. The defendant
was indeed fortunate the trial court tempered mercy with justice by sentencing her to serve
only ninety (90) days in confinement with the service of two (2) years pursuant to the Act.
In this case, the trial court did not abuse its discretion by requiring the defendant to
serve ninety (90) days in the Dyer County Jail. The record supports the trial court’s
findings regarding the mitigating and enhancing factors. The court’s findings as to why the
defendant should serve some time in confinement are likewise supported by the record.
_______________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
JERRY L. SMITH, JUDGE
______________________________________
CURWOOD WITT, JUDGE
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