State v. Karen McKnight

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED NOVEMB ER SESSION, 1996 October 30, 1997

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9601-CC-00042 ) Appellee, ) ) ) RUTHERFORD COU NTY VS. ) ) HON. J. S. DANIEL KAREN MCKNIGHT, ) JUDGE ) Appe llant. ) (Sentencing/Sale of Cocaine)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF RUTHERFORD CO UNTY

FOR THE APPELLANT: FOR THE APPELLEE:

NED JACKSON COLEMAN JOHN KNOX WALKUP 108 North Spring Street Attorney General and Reporter Suite 108 Murfreesboro, TN 37130 KAREN M. YACUZZO Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243

WILLIAM W HITESELL District Attorney General Third Floor, Judicial Building Murfreesboro, TN 37130

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

This is an appeal pursuant to R ule 3 Te nness ee Ru les of Ap pellate Procedure, from the sentence imposed by the Criminal C ourt of Rutherford County. On appeal, Appellant Karen McKnight argues that the trial court erred in denying her request for alternative sentencing. For the reasons set forth, the judgment of the trial court is affirmed.

I. FACTUAL BACKGROUND

On June 10, 19 95, Ap pellan t plead ed gu ilty to four counts of the sale of cocaine under .5 grams and two counts of possession of cocaine. The plea included Appellant’s agreement to serve a six year sentence for each of the first four counts and an 11 month, 29 day sentence for the other two counts. According to the plea dings, the parties ag reed tha t the App ellant cou ld seek to have the sentence suspended; they also left the determination of whether the sentences should be served consecutively to the trial court’s discretion. The parties further agree d that A ppella nt wou ld be sentenced as a standa rd offender.

A sentencing hearing was held on August 14, 1995. After hearing proof from several witnesses, including Appellant, the trial court imposed concurrent sentences. The trial court also partially suspended Appellant’s sentence, ordering her to serve one year of her sentence in prison and ordering that upon release she is to be on probation for six years.

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II. APPELLANT’S STATUS AS A STANDARD OFFENDER

Appellant contends that the trial court erred in failing to sentence her as an espe cially mitigated offender. As a part of the plea bargaining process, Appellant agreed to both the length of her sentences and also to being sentenced as a standard offende r. Accord ingly, this issu e is withou t merit. See State v. Mahler, 735 S.W .2d 226, 228 (Tenn. 198 7).

III. ALTERNATIVE SENTENCING

Appellant complains that she did not receive full suspension of her sentence and probation for the entire length of her sentence. Probation is a matter entrusted to the discretion of the trial judge and Appellant bears the burden on appeal of showing that the sentence she received is inappropriate. State v. Bingham, 910 S.W .2d 448, 456 (Tenn. Crim . App. 1995 ).

Tenn. Code A nn. § 40-35-1 02(5) provides in pertinent part that “convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts of rehabilitation shall be given first priority regarding sentencing involving incarceration. “A defendant who does not fall into the category set forth in Section 40-35-102(5) and who is an especially mitigated or standard offender of a Class C, D, or E felony is “presumed to be a favorable candidate fo r alternative sentencing options in the absence of evidence to the contrary.” Id. § 40-35-102 (6); State v. Ashby, 823 S .W .2d 16 6, 169 (Ten n. 199 1). Th is simp ly means that the trial judge must presume such a d efend ant to b e a favo rable

-3-candid ate for a sentence which does not involve in carcera tion. Byrd, 861 S.W.2d at 379-80. This presumption is however rebuttable and incarceration may be ordered if the court is presented with evidence which establishes

(A) Confinement is necessary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct;

(B) Confinement is neces sary to avoid depreciating the seriousness of the offense o r confinement is particularly suited or provide an effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently b een ap plied uns uccess fully to the de fendan t.

Tenn . Code Ann. § 4 0-35-10 3(1); Ashby, 823 S.W.2d at 169.

This Court has recognized for some time that one or more of the fac tors in Section 40-35-103(1) which, if properly established, rebut the presumption of entitlement to a non-incarce rative sentence and justify the imposition of confinem ent, may also serve to justify the denial of full proba tion. See, e.g., Bingham, 910 S.W.2d at 456, State v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App. 19 95); State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991) (recognizing § 40-35-103(1)(B) as codification of principle th at nature and circumstances of offense and need for deterrence may justify denial of probation). A fortiori, a discretionary denial of probation may be justified on the basis that the evid ence s hows th at defen dant falls into the category of felons described at Section 40-35-102(5) as being the most deserving of a sentence involving incarceration. See e.g., Chrisman, 885 S.W.2d at 840. Therefore, in reviewing a denial of proba tion on appe al, when the rec ord demonstrates that the

-4-defendant may not claim the presumption of entitlement to a non-inca rcerative sentence, or that the presumption has been rebutted, this Court will sustain the trial court’s discretionary de nial of probation if there is any evidenc e to support that determination.

Appellant was convicted of four (4) Class C felonie s, and the State concedes that Appellant is pres ump tively entitled to a sentence which does not involve incarceration. However, the State argues that the presumption has been rebutted through the trial cou rt’s findings that som e incarceration w as necess ary to avoid depreciating the seriousness of the offense.

This Court has held that in order to overcome the presumption of entitlement to a non-incarcerative sentence based on the need to avoid depreciating the seriousness of the offense, “the circumstances of the offense as committed must be especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or exaggerated degree, and the nature of the offense must outweigh all factors fav oring a se ntence other tha t confinem ent.” Bingham, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. C rim. App. 199 1).

An isolated sale of cocaine may or may not given the circumstances of a particu lar case c onstitu te suc h repre hens ible be havior that co nfinem ent is

-5-necessa ry to avoid depreciating the seriou sness o f it.1 However, where the record shows, as here, that the defendant received a substantial portion of her income from cocaine sales, that she sold fairly significant amounts of cocaine, drug dealing activities disrupted her neighborhood, we will not disturb the trial court’s discretion ary judgm ent that at least som e incarce ration is ne cessar y to avoid depreciating the seriousness of the offense.2

Accordingly, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ DAVID H. WELLES, JUDGE

1 In State v. Hartley, 818 S.W .2d 370 ( Tenn . Crim. A pp. 1991 ); this Cou rt found th at a trial court erred in failing to grant probation in a cocaine sale case based on a finding that incarceration was necessary to avoid depreciating the seriousness of the offense. In that case the defendant was a youthful offender who played a relatively minor role in the felonious transaction. The defendant likewise had no financial interest in the sale. In the case sub judice Appellant sold significant amounts of cocaine for money on a number of occasions. Appellant also had a prior criminal record for theft.

2 Appellant testified her drug dealing often prompted neighbors to call police to their neighborhood.

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