1 

# FILED
May 13, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) C.C.A. No. 03C01-9605-CC-00196 ) BLOUNT COUNTY Appellee, )

) Hon. D. Kelly Thomas, Judge VS. ) ) (SENTENCING) LISA GAYE COPELA

ND, ) No. C-8930 BELOW

) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : STACEY D. NORDQUIST JOHN KNOX WALKUP Assistant District P ublic Defender Attorney General and Repor ter 419 High Street Maryville, TN 378

01 MERRILYN FEIRMAN Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493
MICHAEL L. FLYNN District Attorney General EDWARD P. BAILEY, JR. Assistant District A

ttorney General 363 Court Street Maryville, TN 378

04-5906

OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK, Special Judge2 OPINION
Defendant Lisa Copeland appeals as of right from the judgment of the trial court ordering her to

serve the sentenced imposed i n this case consecutivel y to a previoussentence imposed upon her in Sevier County, and denying

her request for probation. The decision of the tri al court is affirmed.

T he defendant is a divorced mother of three. She began using coc ai ne i n 1992. Her jobas a motel house keeper did not p rovide enough income to support her family an d her dail y c ocaine habit . She live d with her

parents but spent time with a male co-defendant.

On December 15, 1994, def end ant committed the offenses of aggrava ted burglary and theft over $500 that are at issue in this case. On December 16, 1994 the defendant was arrested in Sevier County after c ommitting a second aggr avated burglary there. She immediately admitted her involvement in both offen ses.

On March 27, 1995, defendant pled gui lty in Sevier Co unty to aggravated burglary. She w

as given credit for four months of time servedand was placed on three years supervi sed probation.

On July 25, 1995, defendant entered pl eas of guilty in this case to aggravatedburglary, a Clas s C felony, and theft over $500 .00 , a Class E f elony. Under the terms of th e plea agreemen t, defendan t apparently agr eed to a t hreeyear sentence for the aggravated burglary and a one -year sentence for the theft. The sentences were run concurrent to one another. All ot her issues concerning place and manner of service of her s entence were to be addressed at a l ater sentencing hearing. She remained free on bond.

On July 31, 1995, defendant reported to the Blount County probation officer3

fora presentence interview. She tested positive for mar ijuana during that

visit. The officer also noted that

she had already committed a pri or technical violati on of her Sevier County probati on by admitting use of marij uana in June 1995.

On Nove mber 5, 1 995, defe ndant w as char ged with misde meanor t heft i n Knox County. On November 6 she pled guilty and was pl aced on probation for eleven months twenty-nine days. On December 5, 1995, defendant was charged with another misdemeanor theft in Knox County. On December 8 she r eceived another suspended sentence of eleven months, twenty -nine days. Follow

ing these convictio ns a proba tion viola tion warra nt was issu ed in Sevie r County.

The sentencing hearing in this case was conducted on January 2, 1996. Defendan t testified that all the offenses w ere committed to support her coc aine addiction. She admitted that she had continued to use cocaine since the entry of her plea in July 1995.

After hearing all the p roof, the trial judge denied defendant’ s request for probation. She was ordered to ser ve one year in the

Blount County Jail followed by two years in the Community Corrections Progra m. Her sentences were r un consecutivelyto the previously- imposed Sevier County sentence for aggravated burglary.

When a defendant complains of her sentence, we conduct a de novo review with a presumption of correctness of the findings of the trial court.Tenn. Code Ann. §40-35-401(d). This presumption is conditioned upon an affirmative showing i n the record that the trial court considered the sentenci ng principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). However, the burden o f showing t hat the s entence was improp er is upon the appe aling part y. Tenn. Code Ann. §40-35-401(d) Sentencing Comm ission Comments. In determining an appr opria te sentence, the court must consi der the4

following: (1) any evidence from the trial and sentencing hearing; (2) the presentence report; (3) the princip les of se ntencing; (4) the nature an d charac teristics of the off ense; (5) info rmation conce rning the enhan cing an d mitigating factors as found i n Tenn. Code Ann. §§40-35-113 and 114; and ( 6) the defendant’s statement in her own behalf concerning sentencing. Tenn. Code Ann. §40-35-210(b).

I. The defendant first argues that it was error for the trial co urt to den y probation. As a person with no si gnificant criminalhistory, convicted of a Class C felony and a Class A misdemeanor, the de fendant was “presumed to be a favorable candidate for alternative sentencing”. Tenn. Code Ann. §40-35-102(6). However, this presumption may be ov ercome by “evidence to the contrary”. Id.

“ Evide nce to the contrary” may include a finding that one or more of the followin g sentenc ing consid erations apply:

(A) Confine me nt is necessary to protect society by restraining a defendant wh o has a long history of criminal conduct; (B) Confinement is necessary to avoid dep reciating the
s eriousness of the offense or confinement is particular ly suited t o providean effective deterrence to others likely to commit si m ilar offenses; or (C) M easures less restrictiv e than confinement h av e frequently or recently

been applied unsuccessfully to the defendant. Tenn

. Code Ann. §40-35-103(1). Ins ofar as they are releva nt to the - 10 3 considerations, courts may also apply the mitigating or enhancing factors set forth in Tenn. Code Ann. §§40-35-113 and 114. See Tenn. Code Ann. §40-35-210(b)(5); State v. Lloyd Mills Matthews, Jr. , No. 03C01-9505-CR-00153 (Tenn. Cr i m. App., Knoxville, May 1, 1996 ). Finally, Tenn. Code Ann. §40-35-103(5) provides that in5

determining whether an alternativ e sentence is appropriate, c ourts should consider the defendant’s potential or lack of potential for rehabilitation.

In this case , the tria l court gave the foll owing reaso ns for de nying alte rnative sentencing: (1) th e defendant has a history of other c onvictions and criminal activities; and (2) the defendant has frequently and recently been unsuccessful in completing probation, making thepotential for rehabilitatio n poor. These reasons are supported by the recor d.

Defendant has acknowled g ed a lengthy history of illegal drug use. She testified at her sentencing hearing that during the one-year period bef or e the commission of t h is offense she spent at least six ty dollars ($60.00) per day on cocaine for her personal use. In her presentence report interview she stated that fora year and a half she “shot up” $300.00 to $400.00 per day of cocaine. She also acknowledgedusing mari juana “a c ouple of times a we ek” since she was seventee n. However, she refu sed to dis close the source of her suppl y.

Addition ally, while this case w as pending defendant sho wed no greater willingness to follow the law. While o n bond forthe instant offenses, and on probation from the Sevier County aggravated burgla ry, the defendant co mmitted two additional acts of theft, for which she has now pled guilty. She continued to use drugs. Thus measures less restri ctive than incarcerati on had recently been unsuccessful. Defendant did not take full respons ibility for her conduct , blaming her boyfriendsfor causing her problems. And although she indicated to the court that she desired drug treatment, s he stated in her presentence i nterview that she di d not need treatment. She had not maintained empl oyment to provide for her children.

Defendant did not show her suitabi lity for probation. The t rial court acted within its discre

tion in denying probati on. This issue is without merit.6 II. Defendant next contests the trial court’s judgment that the sentences in this case should be run consecutiv ely to the sentence in the Se vier County

case. We note that Rule 32(c)(2), Tenn. R. Crim. P. gives discretion to

the trial court to impose
consecu tive sentences when a defendant has “additional sent ences not yet fully served.” This court has previously hel d that the exercise of discretion under Rule 32(c)(2) essentially invol ves the consideration of the consecutive sentencing criteria provided in T.C.A. §40-35-115(b). See State v. Thomas Edwa rd Capps , No. 01C01-9506-CC-00164 (Tenn. Crim. App., Nashville, February 29, 1996).

The trial court found that the defendant qualified for consecutive sentences based on the same

factors he considered in deny ing probation: the commission and conviction of addi tional offenses while on probation from the Se vier County case and bond from the Blount County cases, and the defendant’s general criminal b ehavior and drug use since she enter ed the guilty pleas i n Sevier County and i n BlountCounty. The record supports this determination. W hether sentences are to be served concurrently or con se cutively is a matter addressed to the sound discretion of the trial court. State v. Ja m es , 688 S.W.2d 463 (Tenn. Crim. App. 1984). Defendant in this case adm its an extensive his tory of illegal drug

use. Extensive criminal histor y alon e will support consecutive sentencing. See , e.g. , State v. Chrisman , 885 S.W.2d 834, 839 (Tenn . Crim. App. 1994). This defendant has now committed several crimes in or der to obtain money to support her extensive drug habit.

Finally, we believe that this history warra nts the conclusion that the
consecu tive sentences are necessary to protect the public from further misconduct bythe defendant, and reasonably reflec t the severity of the offenses. See State v.7

Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). Based on these findings, we hold that the trial court had

an adequa te basis f or conclu ding that consecut ive sentences
were neces sary.
The judgment of the trial court is affirmed in all respect s.

_______________

_____ _____________

_ CORNELIA A. CLARK SPECIAL JUDGE

CONCUR:

__________________________________ JOHN H. PEAY JUDGE

__________________________________ PAUL G. SUMMERS JUDGEIN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE

STATE OF TENN ESSEE, ) C.C.A. No. 03C01-9605-CC-00196 ) BLOUNT COUNTY Appellee, )

) Hon. D. Kelly Thomas, Judge VS. ) ) (SENTENCING) LISA GAYE COPELA

ND, ) No. C-8930 BELOW

) Appellant. )

JUDGMENT

Came the appellant, Lisa Gaye Copel and, by counsel and also came the attorney general on behalf of the state, and this case was heard on the record on appeal from the Cri minal Court of B lount Co unty; a nd upon c onsider ation th ereof, this court is of the opinion that there is no reversible error in the judgment of the trial court. Our opinion

is hereby

incorporat

ed in this j udgment as if set out ver batim. 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 Criminal Cour t of Blount County for execution of the judgment of that court and for c o llection of costs accrued b elow. It appears that the appellant is indigent. Costs of this appeal will be paid by the State of Tennessee.
PER CURI AM John H. Peay, Jud ge Paul G. Summe rs, Judge Cornelia A. Clark, Special Judge