IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 26, 2010

STATE OF TENNESSEE v. APRIL JENNIFER WARREN

Direct Appeal from the Circuit Court for Blount County

No. C-15710 Jon Kerry Blackwood, Senior Judge

No. E2010-00740-CCA-R3-CD - Filed November 8, 2010

The defendant, April Jennifer Warren, pled guilty in the Blount County Circuit Court to one

count of voluntary manslaughter, a Class C felony. Pursuant to the plea agreement, the

defendant agreed to a sentence of ten years a Range II, multiple offender, with the manner

of service to be determined by the trial court. Following a sentencing hearing, the trial court

sentenced the defendant to confinement. In this appeal as of right, the defendant contends

that the trial court erred in denying her request for alternative sentencing. Following our

review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, delivered the opinion of the Court, in which JERRY L. SMITH and

JOHN EVERETT WILLIAMS, JJ., joined.

Stacy Nordquist, Maryville, Tennessee (at trial); and J. Liddell Kirk, Knoxville, Tennessee

(on appeal), for the appellant, April Jennifer Warren.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; Mike Flynn, District Attorney General; and Tammy Harrington, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

A Blount County Grand Jury indicted the defendant of the second degree murder of

her live-in boyfriend, Charles Russell. Pursuant to a plea agreement, the defendant pled

guilty to voluntary manslaughter and agreed to be sentenced outside her range to ten years

as a Range II, multiple offender. The terms of the plea agreement left the manner of service

of the sentence within the discretion of the trial court. Following a sentencing hearing, the

trial court denied alternative sentencing and ordered the ten-year sentence to be served in
confinement. The defendant challenged the denial of alternative sentencing in a direct appeal

to this court. See State v. April Jennifer Warren, No. E2008-01135-CCA-R3-CD (Tenn.

Crim. App. at Knoxville, Dec. 1, 2009).

During the pendency of her direct appeal, “evidence of possible improper conduct by

the trial judge came to light,” so this court stayed the direct appeal and remanded the case for

an evidentiary hearing concerning the alleged improper conduct. Warren, slip op. at 7. We

ultimately reversed the sentencing decision of the trial court and remanded the case for

resentencing, before a new trial judge, based upon our conclusion “that the trial judge’s

conduct [during the initial sentencing proceedings] was prejudicial to the judicial process”

due to the trial court’s ex parte contact with members of the victim’s family concerning the

sentencing decision. Id. at 9.

As summarized in this court’s opinion from the defendant’s first appeal, the evidence

presented at the first sentencing hearing is as follows:

Doctor Darinka Mileusnic-Polchan, Chief Medical Examiner for Knox

County, testified that she performed an autopsy on the victim. She said the

“cause of death was a single shotgun wound to the left temple, which involved

the eyes and the brain and perforated the skull.” She said the victim’s injuries

were consistent with a tight contact shotgun wound, meaning the shotgun

barrel was close, but not necessarily touching the skin. She said the victim

would have lost consciousness immediately and would have died within a

couple of minutes. The autopsy report and a photograph of the victim’s

shotgun wound were received into evidence.

The [Defendant’s] mother, sisters, and brother testified that the victim

and the Defendant fought often and that the Defendant usually had injuries all

over her body. All admitted the Defendant had substance abuse problems. All

said the Defendant would leave the victim after a fight and stay with them

several times a week. The Defendant’s brother, Eddie Warren, testified that

he saw the victim push the Defendant, pull a gun on her, and “whip[]” a beer

can at her. The Defendant’s sister, Dulcie Gunter, testified that the victim

swung a baseball bat at the Defendant and at her. Another sister, Wendy

Warren, said that when she asked the victim’s and the Defendant’s daughter

why the girl had laid a pillow over a doll and stomped on it, the girl replied,

“That’s what Daddy does to Mama.” Ms. Warren said the Defendant told her

the pillow lessened the bruising. Andrea Sutfin, Eddie Warren’s fiancée,

testified that she saw the victim kick and slap the Defendant while the

Defendant lay on the floor and that Mr. Warren had to pull the victim off the

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Defendant.

Shari Garner testified that she owned Subway restaurant in Vonore,

Tennessee, and that the Defendant had worked for her off and on for two

years. She said the Defendant was currently employed as an assistant manager.

She described the Defendant as a good employee and agreed the Defendant

would be reliable if granted probation.

Jessica Keith testified that she worked with the Defendant at Subway

and that she was the victim’s third cousin. She said the Defendant often had

bruises and choke marks on her neck. She said the victim would repeatedly

call the Defendant at work and argue. She said that on her manager’s

instruction, she once refused to let the victim talk to the Defendant and that the

victim threatened to drive his truck through the restaurant. She said the victim

had pushed the Defendant out of his truck, had pulled a gun on the Defendant,

and had removed the license tags from the Defendant’s car to prevent her from

driving home.

The Defendant testified that she had a GED and had completed two

years of classes at Pellissippi State Community College. When asked about

alcohol and drug abuse, she admitted she started using alcohol at thirteen or

fourteen years old and cocaine at eighteen or nineteen years old. She said that

she stopped drinking and using cocaine in her twenties but that she started

using both again after she began dating the victim in 1999. She said they

moved in together after dating five months. She could not explain why she

attended only two classes at Bradford Health Services after she was admitted

for alcoholism in 1993. She confirmed that the two drug screens she had taken

since the shooting were negative. She said she started working at Subway

restaurants in 1999 or 2000. She said that the job would become stressful, that

she would leave the position, and that she would return. She said that in

between her jobs at Subway, she worked for her father and in construction.

The Defendant testified there were instances of violence before she

moved in with the victim. She said the victim grabbed her hair and slammed

her face into the front of his truck. She said that the victim’s ex-wife claimed

the victim had hit her but that the ex-wife did not give any details. She said

she knew the victim had been charged with domestic violence. She described

several instances when the victim beat her, including kicking her in the

stomach when she was pregnant. She said she did not call the police or leave

the relationship because she loved the victim and did not want him to get into

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trouble. She said that they both used alcohol and crack cocaine and that much

of the abuse occurred when the victim was intoxicated.

The Defendant testified that on the day of the shooting, she had gone

to the doctor for a checkup following treatment she had received for a tubal

pregnancy. She said that she returned home about 4:00 p.m. and that she drank

some wine but did not take illegal drugs. She said that the victim was already

at home and that he was drinking beer. She said that they left to go pick up the

victim’s paycheck, that they stopped at the dollar store, and that the victim

remained in the car while she went inside. She said she observed a man she

knew as a crack dealer talking to the victim, although she did not see an

exchange. She said they returned home about 6:00 p.m. and smoked crack.

She said that a friend of hers called wanting to buy marijuana and that the

victim left to purchase some for the friend. She said that the victim called her

to tell her he was on his way home and that when he did not return

immediately, she called her sister to see if the victim was there, which he was.

She said that when the victim returned home, they fought but that she could

not remember about what. She said that the victim ordered her to leave and

that as she took some belongings to her car, the victim grabbed her by the hair.

She said that the victim released her and pushed her from behind as she walked

out the door and that her belongings spilled onto the ground. When asked

what she was thinking at that moment, she replied, “I was mad and sad and just

tired.” She said that she walked into the house and that she could barely

remember going to the gun cabinet and grabbing the gun. She said she thought

she grabbed shotgun shells. She recalled walking into the bathroom and

closing the gun. She said the next thing she remembered was watching the

victim fall backwards.

The Defendant testified that she did not remember the gun firing. She

said the gun was the same one the victim had pointed at her on several

occasions. She said she had never fired the gun and her intent had been to

scare the victim, not kill him. She said that she was tired of being the one

always made to leave and that she had wanted him to leave that time. She said

that after the victim fell, she dropped the gun and called 9-1-1. She said that

the 9-1-1 operator instructed her on how to perform CPR on the victim. She

said that the police arrived and that she talked to an officer. The 9-1-1

recording and a responding officer’s in-car video were received into evidence.

She said that she spoke to officers the next day and that they took pictures of

her bruises.

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The Defendant testified that she had been convicted of driving under

the influence (DUI) and driving on a revoked license but that she had no

convictions for felonies or violent crimes. She said that she was responsible

for the victim’s death but that she had not planned the crime. She agreed she

gave her consent to search her car and trailer and gave a blood sample because

it was “the right thing to do.” She said that she was still working as an

assistant manager at Subway and that she had not been arrested for anything

since the shooting. She said that her driver’s license had been reinstated and

that nothing prevented her from meeting with a probation officer. She said she

lived with her mother. She agreed to attend alcohol, drug, or mental health

assessments if the trial court determined that she needed to do so. On crossexamination, the Defendant testified that she could not remember whether the

victim said anything to her immediately before he was shot. She admitted that

after her release on bond, she used marijuana three or four times over a period

of months. She said she believed the shooting was an accident, but she could

not remember exactly what happened.

In the State’s rebuttal, the victim’s stepson, Daniel Ty Nguyen, testified

that he saw the victim push the Defendant when the Defendant threatened to

cut his telephone line in retaliation for his putting too much laundry detergent

in the washing machine. On cross-examination, Mr. Nguyen said that on two

occasions, he saw the Defendant slap the victim in the face. He said that the

Defendant drank every day and used marijuana and that he found crack

cocaine in a can under the bathroom sink. He said that his stepfather drank

alcohol but that he never saw his stepfather use illegal drugs. On redirect

examination, Mr. Nguyen testified that marijuana plants were grown inside the

Defendant’s closet. He said he did not know for sure whether they were grown

by the victim or the Defendant.

Kenneth King testified that he had a relationship with the Defendant

from September 2006 to December 2007 and that he saw her smoke marijuana

perhaps five times at her sister’s house. He said the Defendant would become

belligerent when she drank alcohol and would want to fight. He said that the

Defendant would push and punch him and that twice he pushed her. On crossexamination, Mr. King testified that he had proposed to the Defendant and that

the Defendant had accepted. . . . He said he was sober when he threw the

Defendant into a television console. He would not agree that the Defendant

ended the relationship.

In the defense’s surrebuttal, the Defendant testified that she was not

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growing marijuana in her closet and that she gave police consent to search her

house on the night of the shooting. She agreed that the police had not asked

her anything about marijuana in her closet. She acknowledged that after the

shooting she removed a can containing crack cocaine from under the [victim’s]

bathroom sink but that she left a can containing crack cocaine under her sink.

. . . On cross-examination, the Defendant denied that she had ever hit or

slapped Mr. King or the victim. She said that she did not have the gun to the

victim’s head, that the victim was standing at the toilet, and that she was

standing in the middle of the bathroom. She testified that a diagram and a

photograph she was shown accurately depicted the location of the victim’s

body after he had been shot. She said she did not move the victim’s body.

Id., slip op. at 2-5.

Also relevant to this appeal is the evidence presented at the November 23, 2008

hearing concerning the defendant’s request for bond during the pendency of her first appeal.

As discussed in this court’s first direct appeal opinion:

. . . . The Defendant’s mother, Dolores Warren, testified that with the

permission of the bail bondsman, the Defendant had traveled out of state and

had returned. She said the Defendant continued to work at her job. She said

she knew of nothing that would prevent the Defendant from reporting to a

probation officer. She said that the Defendant kept her appointments with

defense counsel and that she had not missed a court appearance. She said that

the Defendant’s original bond was $125,000 and that the Defendant would be

living at her house if the Defendant were released on that bond. She said she

had unsupervised visitation with the Defendant’s daughter every other

weekend. On cross-examination, Ms. Warren testified that during the time the

Defendant had been on bond, the Defendant sometimes stayed with her

boyfriend or with other family members. She agreed that she was supposed to

supervise the visitation between the Defendant and the Defendant’s daughter.

When asked whether she had allowed the Defendant and the Defendant’s

daughter to be together unsupervised, she replied that a responsible adult was

present “every time I know of.” She agreed she heard testimony at the

sentencing hearing about the Defendant’s using drugs and alcohol while on

bond, but she said she never saw it. She agreed that the Defendant had

engaged in behavior of which she had been unaware.

The Defendant testified that while she was released on bond,she stayed

with her mother and at Kenneth King’s trailer, which was owned by her father

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and was located two trailers away from her parents’ house. She agreed that no

conditions of her bond required her to stay at her mother’s house. She said

that if the trial court ordered it, she would be willing to live at her mother’s

house pending appeal. She said that she had received permission from her

bondsman to travel out of state and that she had checked with him as required.

She said she had worked for Subway companies for about seven years before

she started working at Sheri Garner’s Subway restaurant. She confirmed that

she was employed as an assistant manager and that she was responsible for

running the restaurant. She agreed that a custody battle over her daughter was

ongoing and that she never took her daughter anywhere without her mother’s

knowledge and without another adult who had received her mother’s consent,

as required by the juvenile court.

The Defendant testified that she had a conviction for DUI from 1994,

that she was sentenced to supervised probation, and that she had completed

probation. Shesaidshenevermissedameetingwithherprobationoficeroracourtappearance. Shesaidthatsinceherreleaseonbondin

2005, she had never missed a court appearance and had never failed a drug test. She agreed

to undergo drug testing, alcohol and drug assessment, and alcohol and drug treatment if

ordered by the court as a condition of her release on bond. She agreed that in the three years

she had been out on bond, she had not acquired any new charges. She said she would do

anything necessary to be released until her appeal was heard.

On cross-examination, the Defendant agreed that she had never faced

a prison sentence and that her circumstances had changed since the last time

she appeared in court. She said that before Kenneth King moved into the

trailer owned by her father, she sometimes stayed at his residence when he was

out of town. She said that she stayed with William Newton “a couple of times

through the week” and that she sometimes stayed with her sister. She said that

her mother did not know she was using alcohol and drugs and that she got the

drugs from a friend. She agreed she was never around her daughter without

another adult supervising the contact. On redirect examination, the Defendant

testified that no revocations of bail had been filed against her and that there

were no bond conditions against her drinking alcohol.

Id., slip op. at 5-6. From the record, it appears that the original trial court revoked the

defendant’s bond pending appeal. After evidence of the trial court’s improper contact with

the victim’s family was discovered, the newly-designated trial court held an evidentiary

hearing concerning the impropriety, disqualified the original trial court, and granted the

defendant bond pending appeal. Ultimately, the defendant filed a motion in this court

requesting that her case be remanded for a new sentencing hearing based upon the original

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trial court’s improprieties, and the State did not oppose the motion.

On remand, the newly-designated trial court held a full evidentiary hearing concerning

the defendant’s request for alternative sentencing. At the March 4, 2010 hearing, the trial

court reviewed and considered all the evidence presented at the first sentencing hearing, as

previously discussed. Additionally, the parties presented evidence relevant to the defendant’s

conduct subsequent to the granting of her appeal bond.

Mike Caldwell of the Tennessee Department of Probation and Parole testified that he

supervised the defendant from November 2008 until December 2009 while the defendant was

on bond pending her first appeal. He said that the defendant kept all of her appointments

except for one when she had a “transportation” problem. He said that following the missed

appointment, the defendant indicated that she was considering returning to custody. He

recalled giving two or three random drug screens to the defendant and that she passed all of

the drug screens except for one which showed evidence of tampering. Mr. Caldwell said that

the defendant accepted responsibility for the victim’s death. An arrest warrant was entered

by a stipulation to show that defendant was charged with criminal trespass on December 25,

2008.

Lori Blair, the victim’s sister, expressed her desire that the defendant be sentenced to

custody without any form of probation or alternative sentence.

Brenda Summey testified that she saw the defendant at the Dragon’s Den, a local bar,

sometime in September 2009. Ms. Summey sat at one end of the bar and talked to the

defendant’s sister, Dulcie Gunter. The defendant sat at the opposite end of the bar and

“started giving [Ms. Summey] a hard time about . . . being . . . gay.” Ms. Summey recalled

that the defendant’s sister told her to ignore the defendant because, the sister explained, the

defendant was “crazy.” Ms. Summey testified that the defendant was drinking beer. She

recalled that the defendant walked over to them, reached across her sister’s face, and tried

to punch Ms. Summey. Ms. Summey said that the defendant was thrown out of the bar by

the bartender, Debbie, after Debbie “whipped her.” The record reflects that a violation of

probation report was filed based upon this incident and the ensuing arrest.

Dulcie Gunter, the defendant’s sister, testified that she had known Ms. Summey for

approximately ten years. She denied seeing Ms. Summey at the Dragon’s Den, and she said

that Ms. Summey was lying about the altercation with the defendant. Ms. Gunter also

testified that she and her mother went to pick up the defendant and victim’s daughter, from

the victim’s mother’s home on Christmas Day 2008. She denied that the defendant

accompanied them to pick up the child. She denied that any of the purported witnesses to

the defendant’s alleged aggravated criminal trespass on that day were present when she and

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her mother picked up the child. The record reflects that a violation of probation report was

filed concerning the aggravated criminal trespass arrest.

The defendant’stestimony concerning the tumultuousrelationship she shared with the

victim was consistent with that of the first sentencing hearing. She explained that their

relationship was “rocky from the get-go” and involved both emotional and physical violence.

She said that they both used cocaine and alcohol on occasion. She admitted that she became

aggressive while drinking. She testified that she just wanted to scare the victim when she

shot him and that she was “mad . . . tired emotionally, physically, [and] mentally just

drained.”

The defendant testified that she had complied with all the terms of her pretrial bond

by maintaining employment and living with her mother. She said that she attended various

treatment programs, parenting classes, and Bible study courses while incarcerated from July

2008 until she was released on bond in December 2008. The defendant said that after being

released on bond, she attended Narcotics Anonymous meetings, Alcoholics Anonymous

meetings, and anger management classes. She also underwent mental health treatment at

Cherokee Mental Health Facility.

The defendant denied Mr. Nguyen’s report that she had grown marijuana in her closet

while living with the victim. She admitted that she had used drugs while on pretrial release,

but she denied using drugs while on appeal bond. She said that Mr. King, Ms. Summey, and

Ms. Russell were all lying about her violent behavior and violations of the terms of her bond

release.

Based upon this evidence, the trial court denied alternative sentencing and imposed

a ten-year sentence of confinement. The trial court accredited Ms. Summey’s testimony

concerning the assault. The trial court noted that the defendant “has had a history of drug

and alcohol abuse” and characterized it as “the lifestyle that she chose and a lifestyle that she

continued to engage in even after this event occurred.” The trial court acknowledged the

defendant’s efforts to rehabilitate herself while incarcerated but said that her behavior while

on release “mitigate[d] somewhat [those]successful efforts.” Concerning the circumstances

of the offense, the trial court disagreed that the defendant’s “just [being] tired” of the volatile

relationship with the victim rose to any level of provocation to warrant alternative

sentencing. The trial court noted that, although the defendant was a favorable candidate for

probation and had potential for rehabilitation, any sentence less than confinement would

depreciate the seriousness of the offense and not serve a general deterrent purpose.

The defendant now appeals from the denial of alternative sentencing. She contends

that she is statutorily eligible for a suspended sentence and that the trial court did not make

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sufficient findings in support of its denial of alternative sentencing she asks this court to

modify her sentence to one year of incarceration followed by supervised probation. The State

contends that the defendant’s drug and alcohol abuse and her continued criminal conduct

after the commission of the offense reflects negatively on her potential for rehabilitation and

justifies a sentence of confinement. Following our review, we agree with the State.

Appellate review of the length, range or manner of service of a sentence is de novo.

See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers

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; (4) the nature and characteristics of the criminal conduct involved;

(5) evidence and information offered by the parties on enhancement and mitigating factors;

(6) any statistical information provided by the administrative office of the courts as to

sentencing practices for similar offenses in Tennessee; (7) any statement by the defendant

in her own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.

§§ 40-35-102, -103, -210 (2006);see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).

The burden is on the defendant to demonstrate the impropriety of her sentence. See Tenn.

Code Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the

trial court adequately considered sentencing principles and all relevant facts and

circumstances, this court will accord the trial court’s determinations a presumption of

correctness. See id. at (d); Ashby, 823 S.W.2d at 169.

The Sentencing Reform Act of 1989 encourages judges to utilize non-incarceration

sentencing alternatives. See Tenn. Code Ann. § 40-35-103(6); see also State v. Ring, 56

S.W.3d 577, 585 (Tenn. Crim. App. 2001). But the Act also provides that certain offenders

should be considered “favorable candidate[s] for alternative sentencing.” Tenn. Code Ann.

§ 40-35-102(6). Although the defendant is statutorily eligible for alternative sentencing, she

is not among those considered “favorable candidate[s]” because, although she was convicted

of a Class C felony, she was sentenced as a multiple offender. Id. The trial court’s decision

to sentence a defendant to confinement should be based upon the following considerations:

(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

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(C) Measures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1). The trial court may also consider the applicable mitigating

and enhancing factors under Tennessee Code Annotated sections 40-35-113 and 40-35-114

as well as “the potential or lack of potential for rehabilitation” in determining whether

incarceration is appropriate. State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996);

see also Tenn. Code Ann. § 40-35-103(5).

The trial court did not err in denying alternative sentencing. We disagree with the

defendant’s contention that the trial court failed to make sufficient findings in support of its

denial of alternative sentencing. To the contrary, the trial court made very specific findings

and outlined the reasons why alternative sentencing was not appropriate. In particular, the

trial court stated that the need to avoid depreciating the seriousness of the offense and the

need for general deterrence as well as the defendant’s history of drug and alcohol abuse and

continued criminal activity justified the denial of alternative sentencing. Significantly, with

respect to the defendant’s potential for rehabilitation, the trial court noted with favor the

defendant’s rehabilitative efforts while incarcerated. However, the trial court found, and we

agree, that the weight of these efforts was mitigated by the defendant’s behavior while on

bond pending appeal. Accordingly, the record supports the trial court’s findings, and our

review gives us no reason to question its sentence.

_________________________________

NORMA MCGEE OGLE, JUDGE

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