# FILED
March 22, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9805-CC-00139 Appellee, ) ) HARDIN COUNTY VS. ) ) HON. C. CREED McGINLE Y, RICKY KEELE, ) JUDGE ) Appellant. ) (Sale of Methamphetamine)

FOR THE APPELLANT : J. DANIEL FR EEMON 327 West Gaines Street P.O. Box 727 Lawrenceburg, TN 38464-0727 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter MARVIN E. CLEMENTS, JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General JOHN W. OVERTON Assistant

District Attorney

General P.O. Box 484 Savannah, TN 38372-0484

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 We address these issues in an order different from that in defendant’s brief. 2 OPINION Defendant, Ricky Keele, was found guilty by a Har

din C ounty jury of one count of selling methamphetamin e, a Cla ss C felony. The trial c ourt sentenced defendant to a Range I sentence of four year s and denied alterna tive sentencing. In this appeal as of right, d efendant contends that: (1) the trial court’s conduct was prejudicial; (2) the trial court faile d to preserve and maintain its independence as a neutral and detached arbiter; (3) the trial court erred i n imposing a four year sent ence; (4) the trial court erred in d e nying alternative se ntencing; and (5) the sentence was disproportionate to other defendants’ sentences with like circumstances. 1
This Court finds no revers ible error and AFFIRM S the trial court’s jud gment.

I. FACTS Although sufficiency of the ev idence is not at issue in this case, a brief recitation of facts is necessary to pl ace the issues in pro per perspective. On the morning of March 8, 1997, Donald Bullock o ffered to sell methamphetamine to Sylvester

Island, an undercover dr ug task force ope rative. In the co urse of a discussion between Bullock and Island, defendant i ndicat ed that the drugs would be of better quality than the night before. Island tol d them he need ed to get the money, dropped Bullock a t a nearby a u to parts store, and contacted I nvestigator Tommy Churchwell. Churchwell met Island, searched him for drugs and money, placed a transmitter

on him, and gave him $100 w ith which to

make the buy. Island retur ned to pick up Bullock who di rected him to defe ndant’s home. On ce there, Island ga ve the money to Bullock and wa s told to go home and wait for defendant and Bullock to deliver the drugs

. Island went home and waited approximately two hours during which time he2 A reading of the trial transcript reveals no incidents of the trial judge being imitated.

Rather, it appears that defendant meant to refer to “ intimations .” As a result, the state appears to have improperly addressed its argument. The result on appeal remains the same.
3 During cross-examination of Bullock, defense counsel inquired as to the reason for the rescheduling

of Bullock’s sen

tencing hearin

g. The transcr

ipt reads as follow

s: COUNS EL: Why was your sentencing hea ring put off from the 2nd? COURT: That was put off at the Court’s motion Mr. Freemon. Let’s move on. COUNS EL: Was there any indication given by the Court that your testimony wou

ld in any way

affect or impac

t the sentence tha

t you would receive in your case?
3 did not hear

from Bul lock or

defe n dant. Thinki ng they mig ht have chea ted him, Island returned to defendant’s home to demand either the $100 or the drugs. When he arrived, an unidentified female directed Island to the woods behind the house where Bullock and defendant sat in defenda nt’s truck. Island pulled his car near to the truck and exited his car. Bullock got out of the truck and met him halfway. When Island made his demand, Bullock returned to the truck where defendant handed him something. Bullock came back to Island and removed two packets of drugs from his pants pocke t. He gave the larger packet to Island and kept the smal ler as “profit” on the tr ansaction. Bullocktestified at trial that in exchange for Island’s $100, defend ant provided him with th e metham phetam ine he gave to Island. Island testified that the drugs he received from Bullock were the drugs he gave to Investigator Churchwell.

II. CONDUCT OF THE TRIAL COURT Defendant assertsthat “the personal imitation of the Trial Judge ruffled his demeanor” 2 such that his conduct was prejudicial to defendant. To suppo rt this assertion, def enda nt cites two types o f conduct: (1) the trial cour t’s efforts to maintain the pace of the proceedings, and (2) a particular

verbal exchange betw

een the trial judge and defense counsel . Defendant specifically as signs as error the several instances in which the trial judge commented upon the slow pace of the trial and the trial court’s reac tion to def ense coun sel’s thinly vei led accusation of partiali ty. 3COURT: Mr. Freemon, I will answer that question. If the man testifies with c andor and ho nesty, it mi ght be taken into consi derat ion by t his C ourt. If he should lie, that also will be taken into consideration. That was put off not on motion of the State. That was put off on the Court’s own motion. COUNS EL: Could I ask the Court for what reason? COURT: Because the Court chose to put it off. COUNS EL: To assist the prosecution in this case? COURT: Absolutely n ot. Let’s take

the jury out. Although the witne

ss’ sentencing d

ate was releva

nt to his credibility

, counsel’s implici

t accusation of pa

rtiality of th

e trial judge in th

e presence of th

e jury appe

ars to this Court to have been highly inappropriate.
4 A trial court has the inher ent power to supervise and control its own court proceedings. State v. Cazes , 875 S.W.2d 253, 260 (Tenn. 1994); State v. Bragan , 920 S.W.2d 227, 239 (Te nn. Crim. App. 1995). However, the trial court must take
care not to convey to the jury an appearance of taking sides. See State v. Suttles , 767 S.W

. 2d 403, 407 (Tenn. 1989); State v. B rown , 823 S.W.2d 576, 588 (Tenn. Crim. App. 1991). Our review of the transcr ipt reveals nothing t

o indicat e that t he judge’s attempts to speed the proceedings or hi s reaction to counsel’s ac cusation were of a nature to cause the jury to perceive any bias

against defendant. This issue is without merit.

III. SENTENCING Defendant claims

that the four-year sentence imposed upon him is improper. He claims the trialcourt imprope rly enhanc ed his sen tence an d denied alternat ive sentencing based solely upon his r efusal to reveal the name of his drug suppliers. Defendant also avers the t ria l court imposed a dispropor tionate sentence as punishmentfor exercising his right to a jury t rial rather than plead to the indictment. Our review of th e senten ce impos ed by t he trial court is de novo , with a presumption that the determinations of the tri al court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim.App. 1993). The presumption of correctness which at taches to the trialcourt's action is conditioned5

upon an affirmative showing in the record that the tr ial court considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn 1991). Bullocktestified at the sentencing hea ring that de fe ndant had methamphetamine “on hand” and that he saw defendant engage in many drug sales with many different

people. Defendant testified that he was not in the business of making money by sell ing drugs, but refused to reveal the names of his suppl iers. The trial court acknowledged the substantial proof of defendant’s statu s as a “sma ll time” dealer, but also noted his ready identity as a source of illicit drugs

. In particular, the court gave credence to Bu llock’s t estimony which indi cated defendant’s involvement in the drug tra de was mo re than a “ca sual flirta

tion.” To the trial court, these unindicted offenses, in addition to defendant’s refusal to reveal his suppliers’ identities, signified a pattern of behavior b ythe defendant to be weighed in its sentenc

ing decision. A r eview of the sentencing hearing transcript c

onvinces us that the tria l court did consider the sente ncing p rinciples and all rel evant facts and circumstances surrounding this case. Thus, our review is de novo with the attached presumpti on of correctness.
A. Length o f Sentence If mitigating or enhancement factors for sentencing are present, a trial court should start at

the minimum sentence, enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitig ating fact ors. Tenn. Code Ann. § 40-35-210( e). No particular w

eight for each factor

is prescribed by the statute, but is left to the discretion of the trial court
as long as t he trial court complies w ith the purposes and princip les of the sentencing act and its findings are s upported by the record. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim

. App. 1997); State v. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. Should there6

be enhancing factors present, but n o mit igating factors, a tri al court may set the sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d);
see State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 1998); Manning v. State , 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994). In this instance, defendant was guilty of a Class C felony and was a Ran ge I standard offender. Thus, the court deter mined the proper

se ntencing range as three to six years and then considered the enhancing and mitigating factors offered by counsel. Defendant had thre e pri or misdemeanor convictions for possession of marijuana, D.U.I., and public intox ication. The trial court agreed with the state that defendant had a previous history of criminal conviction s or criminal behavior in addition to those necessary to establish the appropriate range. See Tenn. Code Ann. § 40-35-114(1). The trial c ourt refused to find that defendant was a leader in the commission of an offense, or that he had no hesitation about committing a crim e when the risk

to human life was high. See Tenn. Code Ann. § 40-35-114(2), (10). Conversel y, the court refused to find that defendant’s conduct neither caused nor threatened serious bodily inj ury, or that he played a minor role in the commission of the offense as suggested by defense cou n sel. See Tenn. Code Ann. § 40-35- 113(1), (4). As a result of its deliberati ons, the court found one applicable enhancement factor, no mitigating factors, and enhanced defend ant’s sentence from three to four years. Where our review, as here, reflects that the trial court followed the statutory sentencing procedur e, imposed a lawful sen tence after giving due consideration and proper weight to the factors and p rinciples set out under s entencing law, and the trial court’s findin gs of fact are adequately supporte d by the record, then we may not modify the sentence

. Stat e v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). This issue is without merit.

B. Denial of Alternative Sentencing7 Defendant argues that the trial c ourt denied alternative s en tencing based solelyupo n his refusal to reveal the names of his sources. How ever, a careful review of the record indicates that the court w eighed other

factors in comingto its final decision in this matter. Co-defendant, Bullock, testified at tr i al and at sentencing. His testimony showed not only that defendant was the source of metha mphetamine for the sale at issue in this case, but that Bullock saw defendant enga ge in many drug transactions

with many

different people. Defendant testified that he was not in the business of making money from drug sales. He also refused the court’s reques t to reveal the names of his sourc es. The trial court a ck nowledged defendant’s presumpti ve eligibility

for alternat ive sentencing, but found that defendant lacked candor and honesty in his dealings with the court and deemed defendant unamenable to rehabilitation. U pon this basis, the court denie d alternative sentencing

. U nder the Criminal Sen tencing Reform Act of 1989, t rial judge s ar e encouraged to use alternatives to incarceration. An especially mitigated or standard offenderconvicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencin g option s in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). There is no mathematical equation to be utiliz ed in determining sentencing alternatives. State v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). Not onlyshould the sentence fit the offense, butit should fit the offender as wel l. Tenn. Code Ann. § 40-35-103(2 ). Indeed , individualized pun ishment is the essence of alternat ive sentenc ing. State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). It is improper for a trial court to deny altern ative sen tencing based solely upon a defendant’s refusal to reveal the names of his sources. Se e State v. Tim He nsley , C.C.A. No. 03C01-9102-CR-00040, Johnson County (Tenn. Crim . App

. filed October 16 , 1991, at Knoxville) , re v’ d in part on other grounds , No. 01S01- 9203-CR-00026(Tenn. 1993). This Court cer tainly realizes

the possible jeopardy8

to safety tha t could result from such a disclosur e. However, a tri al court may consider such re fusal al ong with other

fa ctor s in deter mining whe ther alte rnative sentencing is in the best interest of the defendant and society. See State v. Larry Neal Wilson , C.C.A. No. 02C01-9303-CC-00040, Hardin County (Tenn. Crim. App. filed April 6, 1994, at Jackson). In this instance, we note that the trial court con sidered de fendant’s refusal to name his sources in reachi ng its decision. If this w ere the sole basis for

denial of alternative sentencing, it would be improper. However, the trial court specifically noted in ruling on the motion for new trial, that it was not the sole factor. The court also assigned great wei ght to B ullock’s testimony at trial and sentencing which indicated the defendant had e ngaged in many drug transactions. The trial court also considered defendant’s prior c onviction s, one of which was ano ther drugrelated offense. Further, the trial co urt did not find the defendant to be cred ible regardinghis involvement in sel ling drugs. Untruthfulness may be considered in determining whether alternativ e sentencing is appropri ate. State v. Dowdy , 89 4 S.W.2d at 306. We are “not authorized to s ubstitute [our] judgment for that of the trial court when [it’s judgment] i s supported by [the]evidence.” State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983). The trial court evaluated Bullock’s testimony, defendant’s testimo ny, and the circumstances surrounding the offense. It determined that defendant was not am enable t o rehabil itation a nd chose to deny alt ernative sentencing. This determination is entitled to a presumption of correctness. The defendant has not met his burden of showing that th e deni al of alternative sentencing

was improper. This is sue is without merit.
C. Proportionality Defendant contends hi s sentence is disproportionate to other defenda nts’ sentences f or drug convictions arising from the same undercover operati on. As discussed above, the Sentencing Reform Act inten ds sentencing to be individually tai lored to ea ch offender based upon a variety of considerations. There is no9

equation to follow, and sentencin g must be determined on a case-by-case basis. Each sentence must betailored to that particul ar defendant based upon thefacts of that case and the circumstances of that defendant. State v. Moss , 727 S.W.2d at 235. The trial court clearly

tailored defendant’s punishment as it deemed proper. The fact thatthere exist other defendants w ith drug convictions w

ho received lesser sentences is not determinative. Defendant’s claim of a disproportiona te sentence is misplaced given that each case will necessaril y entail a different set

of facts and circumstances to be consider ed by the trial court. This issue is without merit.

IV. CONCLUSION Based upon the foregoing, the judgment of the trial court is AFFIRMED.10 ______________________________ JOE G. RILEY, JUDGE
CONCUR:

______________________________ DAVID G. HA

YES, JUDGE

______________________________ JOHN EVERETT WILLIA MS, JUDGE