### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 21 , 2002 Ses sion
STATE OF TENNESSEE v. JOHN BRIGGS
Direct Appeal from the Criminal Court for Sullivan County

No. S44818 R. Jerry Beck, Judge

No. E2001-01933-CCA-R3-CD November 13, 2002

The appellant, John Briggs, a pharmacist, pled g ui lt y in the Sulliva

n County Criminal Court to sixteen counts of unlawfully dispensing a controlled substance. The trial court sen tenced the appellant to a total effectivesentence of twenty years inc arceration in the Tennessee Depa rtment of Correction, with all but eight yea rs to be served on probation. On appeal, the appellant argues that the trial court

erred in deny

ing full probation. Upon review of the recor d and the parties’ briefs, we affirm the judgment of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which T HOMA S T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined. R. Way ne Culber tson, King sport, Te

nnessee , for the

appella nt, John Br

iggs.

Paul G. Summers, Attorney Gene ral and Reporter; Kathy

D. Asling er, Assis tant Attor ney Genera l; H. Greeley

Wells, Jr., District At to rn ey General; and Joseph Eugene Perrin, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

I. Fact ual Backgro

und On February

9, 2001, the appellant pled guilty to sixteen counts of unlawful l y dispensing a cont

rolled substance, Class D felonies. Tenn. Code Ann. § 53-11-401(a)( 1) (1997). The appella nt, a pharmacist, owned Stone Drive Pha rmacy in Kingsport. Between Febr uary 1, 1997, and May 6, 2000, the appellantfilled “over eleven hundred (1100) pre scriptions that were not authorized,” disp ensin g a total of “ approxima

tely a hundre d and for

ty thousand ( 140,000) pills” to at least s ixteen diff

erent in dividuals . Specifi cally , the cha rges a lleged the following off

enses:
Name Number of Falsified Prescriptions Pills Dispensed Count 1: James Greene 368 70,000 Darvocet1 The appellant ill egall y is sued the follo wing co ntrolled substa nces: D arvo cet, Sche dule IV ; Lorta b, Sc hed ule III; Di az epa m, Sc he dul e I V; Lor az epa m, Sc he dul e I V; Bu talbital, Sc hed ule IV ; Alpro zolam , Sche dule IV ; Lorc et, Sch edu le II I; an d Pr opo xy phe ne , S ch edu le IV.
-2- 201 20,000 Lortab Count 2: Judy Greene 17 475 Lortab 9 540 Darvocet Count 3: Phil Rader 28 3,200 Darvocet Count 4: Jeffrey Kilg ore 51 3,060 Lortab Count 5: Bobby Moore 40 1,600 Lortab Count 6: Henry Ande rson 73 1,095 Diazepam Count 7: Marilyn Mullins 17 1,340 Diazepam Count 8: Peggy

Sanders 36 1,620 Diazepam Count 9: Dean Hensley 10 1,000 Lorazepam Count 10: Thomas Ketron 41 4,100 Lorazepam Count 11: Jonathan Hughey 3 1,440 Lortab Count 12: Patty Street Owens 36 2,540 Butalbital Count 13: Cora Dockery 60 1,800 Alprazolam Count 14: Mamie Trent 90 9,000 Lorcet Count 15: Judith Gilre ath 29 3,300 Propoxyphene Count 16: Traci Trent

– – Darvocet

All of the pills dispensed were either Schedule II I or S chedule

IV su bstance s. 1 The appellant’s wife, who also work

ed at the pharmacy, a ssisted in

the dispensation of the controlled substances. The plea agreement

stipulated that the appellant would be sentenced as a standard Range I

offender, with a releas e eligibility of thirty percent (30%), and

would receive a sentence of four years inc arceration
on each co

unt. Furthermore, the

agreement provided that the sentence s on counts one through five would run consecutively ; the sentences on counts s ix through sixteen wou

ld run con

curren tly with eachother

and wi th count five for a total effective sentence of twenty y

ears. The plea agreement provided that the decision regarding alter native sentencing would be determined by the trial court. Ad di ti on al ly, the appellant was fined one thousand dollars ($1,000) on each count for a total fine of sixteen thousand dollars ($16,000).

On July 1 3, 2001, the trial c ourt held a probat ion hear ing. Both th e Stateand the appellant relied on the information presented at the guilty plea hearing and on the i nformation
co ntaine d in the appellant’s presentence report. Additionally , the appellant presented fifty -seven letters and petitions from members of the community a sking the court for leniency in sentencing the appella nt. Moreover, the appellant informed the court that, bec ause of f

ines and f orfeitur es, he had sold his busine ss and pai d nine ty- seven tho usand, fo ur hundred and twe

nty dollars ( $97,420) into the registry

of the court. As a condition of his plea, the appellant had also forfeited his pharmacist’s license.-3- In examining th

e appell ant’s suit

ability for probation, the trial court acknowledged that the appellant was presumed to be a favorable candidate for alterna tive sentencing. As a positive factor, the trial court recognized that, similar to many professionals, the appellant had been involved in ser vice to hi s community . Furthe r, the ap pellant p ossessed

no previo

us crimina

l recor d, was a deaconat the largest church in Kingsport, e njoyed the s upport of

his fa mi ly a nd th e c om mu ni ty, cooperated

with the police, and underwent rehabilitation for his substance addiction. However, the trial court noted the need for det errence and the need to avoid depr eciating the seriousness of the offense. Accordingly , the trial court denied probation for the appellant on counts one and two, but granted the appe llant prob ation on c ounts three throug h sixteen, r

esulting in a total o f eight

ye ars in confinement

with release eligibility

after service o f thirty per cent (30%) of the sentence. The appel lant t imel y appealed this rulin g. II. Analysis

This court will review the a ppel lant’s ch alleng e to the ma nner of s ervice

of his sentences de novo. Tenn. Code Ann. § 40-35-401(d) (1997). However, because we conc lude that the trial cou

rt care fully and thoro ughly consider ed the se ntencing principle s and all

relevant facts and circumst ances, this court

will accord the trial cou

rt’s dete rmination s a presu

mption of c orrect

ness. Id. ; State v. Clabo , 905 S.W.2d 197, 205 (Tenn. Crim. App. 1995) . In any event, the burden is on the appella

nt to demon strate th

e impropr

iety of his sentences. Tenn. Code Ann. § 40-35-401, Sentencing Commission Co mments; see also State v. G riffin , 914 S.W.2d 564, 567 ( Tenn. Crim. App. 1995).

We must consider the following factors in the course of our de novo review: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and argume nts as to sentencing alternatives; (4) the nature a nd characteristics of the criminal conduct involved; (5) evidence and information offered by the parties
on enhancement and mitigating factors; (6) any statement by the appe

llantin his own behalf; and (7) the appellant’s potentia

l for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103 (1997), - 210 (Supp. 2001); see also State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991).

On appeal, the appellant asks this court to determine: (1) whether the trial court committed reversible error in sentencing by denying the appellant’s reques t for probation or alternative sente ncing;
(2) whether the trial court committed reversible error in sentencing by enhancing the appellant’s senten ce base d upon the presence of the facts a nd eleme nts of the offense s charg ed;
(3) whether the trial court committed reversible error in sentencing by denying probation for deterrence purposes; and-4- (4) whether the trial court committed reversible error in sentencing by notproperly ba

lancing all mitigation factors by failing to observethat any applica ble enha ncement factor was offs et by

mitigati on facto

rs.
The appellant’s first and third issues center around conce rns that the trial court erred when it failed to grant full probation on all counts. Specifically , the appellant contends that the trial court erred in de nyi ng al te rn at iv e s en te nc in g. Re sp ec tf ul ly, we note that the trial court granted the appellant an alternative sentence when it gr antedthe appellant probation on fourteen of the sixteen counts.
Ini ti al ly, we recognize that an appellant is eligible f or probation if

the sentence actually imposed is eight yea

rs or less. Tenn. Code A nn. § 40-35-303(a) (1997). Moreover, an appellant who is an especially

mitigated or standard

offender convicted of a

Class C, D, or E felony is presumed to be a favorable candidate for alternativesentencing. Tenn. Code Ann. § 40-35-102(6). In the instant case, the appellant is a standard Range I offender convicted o f Class D f elonies; t herefore, he is presumed to be a favorable candidate for alternative sentencing. Howev er, thi s presumption may be re

butted by “evidenc e to the contrary .” State v. Zeolia , 928 S.W.2d 457, 461 (Tenn. Cri m. App. 1996). The following sentencing consider ations, set forth in Tennessee Code Annotated section 40-35-103(1), may constitute “evidence to the contrary ”: (A) Confi nemen t is n ecessa ry to prot ect so ciety by rest raini ng a defenda nt who hasa long h

istory of crimin al conduct; (B) Confineme

nt is necessary

to avoid depreciating the seriousness of the offen se o r confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or
(C) Mea sures l ess restrictive than confinement have freque ntly or recently been applied unsuccessfully to the defendant. Zeolia , 928 S.W.2d at 461

. “The determination of whether the appellant is entitled to an alternative sentence and whether the appellant

is entitle d to full probation are different inquiries.” Stat e v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 199 6). An appellant seeking full probation bears the burde n of establishing his suitabi lity for full p robation , rega

rdless of whether he is entit

led to the statu tory presumption favorin g alter native se ntencin g. Id. ; se e also Tenn. Code Ann. § 40-35-303(b). To prove his suitability, the appellant must establish that granting full probation will “‘subserve the ends of justice and the best interest of both the public and the [appellant].’” State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by Statev. Hooper , 29 S.W.3d 1, 8 (Tenn. 2000). Moreover,

[i]ndetermining one’s suitability f or full prob at ion, the court may consider the circu mstance s of the offense, the defendant’s potential
or lack of p otential f

or reha bilitation , whethe

r full pro bation will unduly depreciate the seriousness of the offen se , and whether a-5- sen tence other than full probation would provide an effective deterr ent to othe

rs likely to commit sim

ilar cri mes. Boggs , 932 S.W.2d at 477. While recognizing the appellant’s lack of criminal history, the trial cour t nonethel ess determined that the seriousness of the offense and the de terrent effec ts of incarceration warranted a denial of full probation.

In State v. Hooper , 29 S.W.3d 1 (Tenn. 2000), our supreme court specifically noted five factors for consideration when deny ing probation solely upon the basis of deterrence: 1) Whether other incidents of the charged of fense are increa si ngly present in the community, jurisdiction, or in the state as a whole.

. . . . 2) Whethe r the defe

ndant’s c rime wasthe result of inten tional, knowi ng, or re ck le ss co nd uc t o r w as ot he rw is e m ot iv at ed by a desire to profit or gain from the criminal behavior.

. . . . 3) Whether the defendant’s crime and conviction have r eceived substantial publicity bey

ond that normally expected in the ty pical
case.

. . . . 4) Whethe

r the def endant w as a

member of a criminal enterprise, or substantia lly encouraged

or assisted others in achieving the criminal objective.

. . . . 5) Whether the defendant

has prev iously engag ed in

criminal conduct of the same typ e as the o ffense

in que stion, irrespective of whether such con duct res ulted in pr evious ar rests or c onviction s. Id. at 10-12. A trial court

is not limite d to these

five considerations “provided that (1) the sentencing court states [an

y] a dditi ona l factor s on the record with specificity, and (2) t

he prese nce of th ese additional factors is supported by at least some proof.” Id. at 12.

In the instantcase, based upon the cases heard daily by the court, the trial court noted that there w as a dru g probl em in t he com muni ty. This ge neral com ment alone is not suf ficient t o deny probation based solely upon de terrence. See State v. Fields , 40 S.W.3d 435, 442 (Tenn. 2001). However, the trial court

also noted that the appellant was a member of a criminal enterprise in which his wife, a co-defendant, was also involved. See State v. Timothy C. Jewell, Jr. , No. W2000-00998- CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 371, at *12 (Jackson, Ma y 15 , 2 00 1) . A dd it io na ll y, we observe

that the charge d crim

inal conduct oc curred over a period of at least three yea rs and involved a voluminous number of pills, specifically

90,000 pill s to one ind

ividual, w hich facts also demonstr ate a criminal enterprise. See Statev. Glenda Eva Tilley , No. E2001-00264-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 601, at *12 (Knoxville, Aug. 9, 2001). Furthermore, the numerous supportive letters f

rom membe

rs of the community

demonstr ate that the appe llant’s c ase was wellknown in the community, sugg esting that the case received substantial publicity. Notably , several of the letters indicate that the appellant’s case was publicized in local newspapers; specifically , one-6-

of the letters mentioned that the appellant’s case “ma[de] the front pag e news.” Accordingly , the trial court did not err in considering the det errent effec t of confinement in deny ing the a ppellant full probation. Regar

dless, even if t

he trial c ourt err

ed in appl

yin g the de

terrence fac tor, it
nev e rthelesscorrectly

denied total probation to avoid depreciating the seriousness of the offense. This court ha s previou sly concluded that the

natu re and ci rcumstances underly ing the criminal conduct may alone g ive rise t

o the denia

l of probation. Tenn. Code Ann. § 40-35-210(b)(4). See Statev. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). When imposing conf inement basedupon the serio

usness of the offe nse, the t rial cou rt must fir st

determine if “‘the circumstances of the offe nse as co mmitted [ar

e] espec ially

violent, horrifying , shocking, reprehensible, offensive,
or otherwise of an excessive or exagge rated degree.’” Zeolia , 928 S.W. 2d at 4 62 (qu otin g ( State v. Bingham , 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995)).

The appellant pled guilty

to a violation of Tennessee CodeAnnotated section 53-11- 401(a)( 1) (1997) , which sta tute provides that i

t is unlawf

ul for a pharmac ist to distribu

te or disp ense

a controlled substance in violation of § 53- 11-308 or to distribute or dispense any c ontrolled substance for any purpose other tha

n those au

thorized b y a

nd consis ten t with such person’s professional or occupational licensure or registration law, or to distribute

or dispen se any

controll ed substance in a manner prohibited by

such person’s professionalor occupational licensure or registration law. Tennessee Code Annotated section 53-11-308(c) (1997) pro hi bi ts th e di spe nsa ti on o f Sc hed ul e III
or Sc he du le IV d ru gs by a pharmacist without a valid prescription. Thus, the appellant would have been guilty of

an offense had he falsified only one prescription for

each of the sixteen people named in the information. However, “[i]n considering the circumstancesof the offense[s], the court may go beyond the neg otiated pl ea and consider the ‘true nature’ of the crime[s].” Stat e v. Biggs , 769 S.W.2d 506, 5 07 (Te nn. C rim. A pp. 19 88) (ci ting Sta te v. Hollingswor th , 647 S.W.2d 937, 939 (Tenn. 1983)). In the instant ca se, the trial court noted:

But si gnificant to the Court’s decision here today , that the total of those figures alone was approximately a hundred

and fort y thousand (140,000) pills in the sixteen (16) variou s and independent charges that wer e involved. So this appears to be extraordinary . . . . Now, what happened when these hundred and forty thousan d (140,000) pills were released into the community to individuals, whethe r the y be s ufferi ng from

pain, as e

xplained by

[the appellant] in his statemen t to the Pro

bation Of ficer, you do have a

hundred and fort y [thousand (140,000)] pills going out of co ntro l into the c ommunity withoutthe supervision of the Tennessee Department of Health or the

. . . Board of Pharmacy . So that does create a substantialdan ger to the communit

y beca u se we don’t know what these people – they might have taken them, which could have been a detrimen t to them,-7- they may have, in o

rder to o btain inc ome, sold t

hem to other people,
co uld ha ve, y ou know, th e potenti alities a

re endle ss of whe

re these pills could have gone

because they clearly went out of control of the drugstor e an d the licensed pharmacist when they got out. So the nature of this offense appears to be in the extreme. In sum, over the course of three y ears, the appellant dispen sed an extraord inary amount of

pills throu gh a large number of falsified pre scriptions

. S ee State v. James Randolph Bradford , No. 01C01-9004-CC-00101, 1991 Tenn. Crim. App. LEXI S 296, at **5-6 (Nashville, Apr. 18, 1991). The trial court found that the appella nt was re morsefu l and that he had e nrolled in a rehabilitation progra m to figh t his substance addiction; however, the court neverthele ss found that the appellant had a “susta

ined inte nt to violat

e the law .” This finding is supported by the appellant’ s distribution of 140,000 pills to sixteen individuals over a three year period. Again, we note that the trial court gave caref

ul conside

ration to t

he appellant’s se

ntencing . We agr

ee with th

e trial c ourt th at th e circumstances underly

ing the appellant’s convictions were of an excessive or exaggerated de gree. See State v. Charles Chesteen , No. E1999-00910-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 455, at **31-32 (Knoxville, June 8, 2000). Ac cording ly, we conc lude that the trial court did not err in denying the appellant full probation.

The appella

nt a ls o contends that the trial court erred in enhancing the appellant’s sentence “based upon the presence of the facts and elements of the offenses cha rged.” The appellant and the State entered into a plea agreement which was approved by the trial court. The agreement specific ally

provided the sente nce the a ppellant was to receivefor each conviction. Thus, the record does not reflect

that the trial court “enhanced” any sentence based upon

facts wh ich were elements of the charged offense s.

Fi na ll y, the appellant alleges that the trial court improperly balan ced the enhanc eme nt and mitigating factors. However ,

[t]he appellant's sentence is not determined by the mathematical proces s of adding

the sum tota

l of enha ncing f actors p resent th e n sub tracting from this figure the mitigating factors present for a net number of year s. Rather, the weight to be afforded a n existing factor is left to th e tria l cour t's discreti on so long as the court compli es with the purposesand princ iples of t he 1989 Se ntencing Act and it s findings are adequately

supported by the record. Boggs , 932 S.W.2d at 475- 476. We conclude that the trial court did not err in its application of the enhancement or mitigating factors.
III. Conclusion

Based upon the foregoing , we affirm the judgment of the trial court.

___________________________________-8- NORMA McGEE OGLE, JUDGE