06/14/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 26, 2021
STATE OF TENNESSEE v. JOSEPH DONALD MCINTIRE
Appeal from the Criminal Court for Cumberland County
No. 2020-CR-33A Gary McKenzie, Judge
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No. E2020-01483-CCA-R3-CD
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The defendant, Joseph Donald McIntire, pled guilty to attempted introduction of
contraband into a penal facility and, after a sentencing hearing, the trial court imposed a
sentence of eight years in confinement. On appeal, the defendant argues that the trial court
abused its discretion in enhancing his sentence to eight years and requiring that he serve
the entirety of his sentence in confinement. Upon our review of the record and the
applicable law, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and CAMILLE R. MCMULLEN, JJ., joined.
James N. Hargis, Sparta, Tennessee, for the appellant, Joseph Donald McIntire.
Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Philip A. Hatch,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
The defendant was indicted for one count of introduction of contraband into a penal
facility and, pursuant to a plea agreement, pled guilty to said charge. The record suggests
the parties were under the impression that the charged offense was a Class D felony when
in actuality it was a Class C felony. At the onset of the sentencing hearing, defense counsel
informed the court that it was sentencing the defendant on a Class D felony, and the
judgment indicates the offense of conviction as attempted introduction of contraband, a
Class D felony. We presume there was some agreement amongst the parties to amend the
defendant’s plea that is not apparent from the record before us.
The transcript of the guilty plea hearing is not included in the record on appeal;
therefore, we glean the factual background giving rise to the plea from the presentence
report. The official version of events provided that in June 2019, Sarah Turner, an inmate
of the Cumberland County Jail, received mail that contained a white powder substance.
The envelope bore the defendant’s name with return address. Investigator Jon Wirey of
the Cumberland County Sheriff’s Department listened to recorded jailhouse calls between
Ms. Turner and the defendant in which the two discussed the defendant’s “mailing a pill”
to Ms. Turner by “placing the pill in a picture.”
The presentence report also contained the defendant’s version of events. According
to the defendant, Ms. Turner, his girlfriend, “begged” him to send her “medicine” because
“she was withdrawing from not having anything.” The defendant claimed that he “didn’t
feel comfortable [and] didn’t want a[n] introduction charge,” but he ultimately “got upset
[and] sent it just to get her to stop askin[g].” Officers intercepted the mail and found an
“envelope with [the defendant’s] name on it with a Percocet 10mg 325 crushed up in
between pictures.” The defendant asserted that he and Ms. Turner were “no longer a
couple” and that he had “not been in any trouble” since she had been out of his life. The
defendant also averred that he “completed CPS probation on July 16, 2020.”
At the sentencing hearing, Dannon Stickler, a probation officer with the Tennessee
Board of Probation and Parole, testified that he prepared the defendant’s presentence
report, and it was entered into evidence during his testimony. Certified copies of the
defendant’s eleven prior judgments of conviction were also introduced into evidence.
Officer Stickler recalled that the defendant “had opportunities in which he has violated his
probation, one in which he was revoked to serve.” He also recalled that the defendant was
subjected to a drug screen during the preparation of the report, and he tested positive for
methamphetamine and amphetamines. The defendant admitted to having used drugs the
night before.
Investigator Jason Elmore with the Cumberland County Sheriff’s Department
testified that his primary job duty was narcotics investigations, and he noted that it was a
frequent occurrence for individuals to try to get controlled substances into the Cumberland
County Jail. He recalled that in June 2019, a corrections officer at the jail brought it to his
attention that Sarah Turner “was calling around trying to get people to send in narcotics
through the mail to her while she was in custody.” Investigator Elmore was able to
determine that it was the defendant who Ms. Turner was contacting outside the jail trying
to get the drugs, and Investigator Elmore obtained recordings of phone calls between the
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two. Investigator Elmore was also aware that corrections officers intercepted two letters
from the defendant to Ms. Turner. The letters contained multiple photographs, two of
which had “false pocket[s] behind the pictures” that held a white substance, later identified
as 0.5 grams of Oxycodone. When investigators confronted the defendant, he admitted he
sent the letters.
In his allocution, the defendant said he was the only caregiver for his elderly,
disabled mother. He claimed that he had not been in trouble since he had been away from
Ms. Turner and that he had “completed one of your programs, or probation . . . as of July.”
He maintained he was trying to be a better person.
After hearing the arguments of counsel, the trial court first observed that the
defendant was a Range II offender, which subjected him to a sentence of four to eight years.
The court then considered and weighed the relevant enhancement and mitigating factors,
after which it imposed a top-of-the-range sentence of eight years. The court determined a
sentence of full incarceration was appropriate.
Analysis
The defendant argues the trial court abused its discretion in enhancing his sentence
to eight years and requiring him to serve the entirety of his sentence in confinement. The
State responds that the trial court expressly considered the purposes and principles of the
sentencing act and imposed a within-range sentence after determining that the enhancement
factors outweighed the mitigating factors and that substantial evidence supported the trial
court’s findings regarding the need for confinement. We agree with the State.
It is well settled that this Court reviews within-range sentences and alternative
sentences imposed by the trial court under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W. 3d 682, 707 (Tenn. 2012); State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Once the trial court has determined the
appropriate sentencing range, it “is free to select any sentence within the applicable range.”
State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-
210(d)). When determining a defendant’s sentence and the appropriate combination of
sentencing alternatives, trial courts are to consider the following factors:
(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;
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(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and
(7) Any statement the defendant wishes to make in the defendant’s own
behalf about sentencing.
Tenn. Code Ann. § 40-35-210(b). The trial court must state on the record the statutory
factors it considered and the reasons for the ordered sentence. Id. § 40-35-210(e); Bise,
380 S.W.3d at 705-06. “Mere inadequacy in the articulation of the reasons for imposing a
particular sentence, however, should not negate the presumption [of reasonableness].”
Bise, 380 S.W.3d at 705-06. A trial court’s sentence “should be upheld 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.” Id. at 709-10.
In imposing the maximum sentence in the range, the trial court determined that the
defendant had a previous history of criminal convictions or behavior in addition to that
necessary to establish the range, and that he was a leader in the commission of an offense
involving two or more criminal actors. See Tenn. Code Ann. § 40-35-114(1), (2). The
record shows that two of the defendant’s prior felonies were used to establish his range;
therefore, his nine remaining convictions, including one felony, were used to increase the
length of his sentence. The trial court placed “great weight” on the defendant’s criminal
history. Additionally, the court considered the defendant’s drug use during the presentence
investigation period as criminal behavior to support enhancement. As to the defendant’s
being a leader in the commission of an offense involving two or more criminal actors, the
trial court observed, “he is the one outside of the jail who is sending, and having to go and
acquire the drug, and package it and send it in[.]” Although applicable, the court attributed
less weight to this factor.
With regard to mitigating factors, the trial court noted that the defendant’s conduct
did not cause or threaten serious bodily injury, see Tenn. Code Ann. § 40-35-113(1), but
gave the factor little weight. The court also considered the defendant’s cooperation with
law enforcement under the catchall mitigating factor, see id. § 40-35-113(13), but found
that “it doesn’t really move the needle much” because “law enforcement put[] a good case
together . . . [and] I don’t know what his other alternative was.”
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The defendant argues that the trial court “placed too much weight on enhancement
factors and too little weight on mitigating factors.” He specifically contends that the court
“overemphasized” his prior convictions, which were mostly non-violent, as well as his
positive drug screen, and gave insufficient weight to his allocution and cooperation with
law enforcement.
The record shows the trial court imposed a within-range sentence in full compliance
with the purposes and principles of the sentencing act and is, therefore, entitled to a
presumption of correctness. “[M]ere disagreement with the trial court’s weighing of the
properly assigned enhancement and mitigating factors is no longer a ground for appeal.”
Bise, 380 S.W.3d at 706. The defendant is not entitled to relief.
Turning to the defendant’s claim that the trial court erred in imposing a sentence of
full confinement, we note that the 2005 revised sentencing statutes advise that a defendant
is no longer presumed to be a favorable candidate for alternative sentencing. Carter, 254
S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory”
sentencing guidelines provide that a defendant “who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should be considered as a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary.”
Tenn. Code Ann. § 40-35-102(6). However, no criminal defendant is automatically
entitled to probation as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997).
Rather, the defendant bears the burden of proving his or her suitability for alternative
sentencing options. Carter, 254 S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-303(b)).
The defendant must show that the alternative sentencing option imposed “will subserve the
ends of justice and the best interests of both the public and the defendant.” Hooper v. State,
297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v. Hooper, 29 S.W.3d
1, 9-10 (Tenn. 2000).
Before imposing a sentence of full confinement, the trial court should consider
whether:
(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[.]
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Tenn. Code Ann. § 40-35-103 (1)(A)-(C). In addition, the sentence imposed should be (1)
“no greater than that deserved for the offense committed,” and (2) “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-35-103(2),
-103(4). Furthermore, “[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.” Id. § 40-35-103(5). The party appealing a sentence bears the burden
of establishing that the sentence was improper. Id. § 40-35-401, Sentencing Comm’n
Cmts.
In imposing a sentence of incarceration, the trial court found that confinement was
necessary to protect society due to the defendant’s long history of criminal conduct, and
that measures less restrictive than confinement had frequently or recently been applied,
citing the defendant’s previous probation revocations. The presentence report reflects
eleven prior convictions, including three felonies, dating back to 1996. The report also
reflects a number of violations of probation issued against the defendant. Based on the
foregoing, the trial court was within its discretion in imposing a sentence of confinement.
Conclusion
Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
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J. ROSS DYER, JUDGE
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