# FILED July 13, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON APRIL 1999 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9808-CC-00232 Appellee, ) ) Lake County v. ) ) Honorable R. Le e Moore, Jr., Judge MERRIAN LOGAN, ) ) (Sentencing) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : CLIFFORD K. McGOWN, JR. PAUL G. SUMMERS 113 North Court Square Attorney General & Repor ter P. O. Box 26 Waverly, TN 37185 PETER M. COUGHLAN (On Appeal) Assistant Attorney Gener al 425 Fifth Avenue North G. STEPHEN DAVIS Cordell Hull Buildi ng, 2nd Floor District Public Defender Nashville, TN 37243-0493 208 North Mill Avenue P. O. Box 742 C. PHILLIP BIVENS Dyersburg, TN 38025-0742 District Attorney General (At Trial and Of Counsel on Appeal) P. O. Drawer E Dyersburg, TN 38025-0220

OPINION FILED: _________________________

_______ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE2 

### O P I N I O N
The ap pella nt, Merrian Logan, referr ed herein as the “defendant,” appeals as of right pursuantto Rule 3 of the Tennessee Rules of Appellate Procedure from a judgment of the Lake County Circui t C ourt. Upon her plea of guilty to introduction of drugs into a penal institution, a Class C felony, the tr ial court imposed a sentence of thr ee years in the Department of Correction, suspended to si x months with the balanc e to be served on supervised probation. The defendant presents one appellate issue:whether the trial court erred in requiring her to serve six months i n the Lake County Jail before being placed on probation.
Upon a review of the entir e record, briefs of the parties,and applicab le law, we affirm the trial court’s judg ment.

FACTUAL BA

CKGROUND
On November 27, 1997, the defendant w as arrested by the

Lake County

Sheriff’s Departmentat the Northwest Corre ctional Complex for intr oducing marijuana into the complex. Deputy Sheriff Joseph Vernon, while searchi ng visitors at the com plex, discovered 48.6 grams of marijuana in the defendant ’s baby carrier. The defendant was at the complex to visit

her husband, who was incar cerated for the offense of aggravated robbery. On June 3, 1998, the defendant entered a plea of guilty to unlawfully introduci ng a controlled substance, to w it, marijuana , into a penal institution. The tri al court was to determine an appropriate sentence and the defendant’ s request for probation. A presentence report was ordered . At the conclusio n of a sentenc ing he aring on July 21, 1998, the trial court sentenced the defend ant to t hree years as a Range I, standard offender. The court also ordered, after service of six months in the Lake County Jai l, the remainder of the defendant’s sentence to be served on supervised probation.3 SENTENCING HEARING
Joseph Vernon, deputy sheriff for Lake County and sergeant for the Department of Correction at the Northwest Corr ectional Complex for fourte en years, testified that he arres te d the defendant at the complex. Duri ng a routine search of vi sitors, Sergeant Vernon found 48.6 grams (two ounces ) of marijuana in a baby carrier in the defendant’s possession. The defendant was at the complex to visit her husband. The defendant initiallyadmitted to bri nging the drugs into the complex and then denied it.The defendant and her companion were arrested.Later, after booking, the defendant s igned a waiver of rightsand admitted in a sign ed statement that the marijuana w as hers. Her companion was then released.

As part of Sergeant Vernon’s duti es at the complex, he compiles statistics on drug use by inmates. Vernon testifie d tha t, a fter mon thly rando m drug scre ens, twen ty-five percentof the inmates test positive for the presence of illegal dr ugs. T he common form of entry of d rugs into t he compl ex is throu gh visitors . Visitors account for nine ty to ninet yfive percent of the illegal entry of drugs into the complex. Thus, Sergeant Vernon testified that heavy sentences are necessary to deter other visitors from bringing drugs into the complex.

The defendant testified she is a resident of Shelby County, Tennessee, and has four children, ages 6, 8, 9, and 10. Her hus band is incarcerated for agg ravated robbery. At the time of sentencing, the defen dant was employed at Shoney’s and received an AFDC supplement. The defendant graduated fromhigh school and sought tr aining at a beauty colle ge, but failed to complete the course. The defendant takes heart medicat ion. Th e defendant admitted she pled guilty to carrying mariju ana into the prison. However, in the presentence report, the defendant stated she did not know the marijuana was

in the baby carrier. Then, the defendant testified that her statement to the probation officer was tr ue, but “[i]t’s really not true because I knew that she had it. O nce we had got there, I knew she had it, but -- I really knew she had it.” The defendant admitted she was wi lling to “take the4

charge.”As to her written st atement to Sergeant Vernon, the defendant t estified “[h]e wrote it, and I just agreed to it.”
During cross-examination, the defendant testified her companion was really Tomeka Birds, but she was using the alias Iris Gilliland. Birds’s baby was listed on the defendant’s husb and’s visito r list, because her husband felt like a godfather to the baby . The defendant testified she and Birds had sh ared an apartment for six months.Birds was at the complex to see Henry Brooks, bu t was on H arry Dillard’s visitor list. The defendant admitted her husband was not the father of any of her children.

The presentence report veri fies the defendanthas no history of arrests or convictions. Based upon this evidence, the trial court imposed a three-year sent ence, with supervised probation after serving six months in the Lake County Jail

.
SENTENCING CONSIDERATIONS

The defendant contends that she is entitled to co mplete p robation and that to incarcerateher for six months woul d work an undue fina ncial hardsh ip. She has four children and a good work history. The state counters that the defendant is not worthy of full probation on the basis she is unwi lling to accept respons ibility for her criminal conduct and a particularized need for deterrence in this case, because it involved a penal institution.

When a defendant complains of the impo sition of his or hersentence, we must conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35- 401(d). Therefore, the burden of showing that the senten ce is improper is upon the appealing party. Id. The pre sum ption that determinations made by the trial court are cor rect is c onditioned upon the affirmative showing in the record that the trial court considered the sent encing pri nciples a nd all rele va nt facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Smith, 898 S.W.2d 742, 745 (Tenn.5

Crim. App. 1994), per. app. denied (Tenn. 1995).

If appellate review r

eflects that the trial court properly considered all relevant facts, and its findings of fact are adequately supported by the record, this Court mus t affirm the sentence “even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an appropriate sentenc e, the tri al court m ust consi der: (1) th e evi dence, i f any, received at the guilty plea 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 inv olved; (5) evidence and informat ion of fered by the parties on enhancement and mitigating factors; ( 6) any statements the defendant w ishes to make in the defendant’s behalf about the sentencing ; and (7) the potential for rehabilitation and treatment. Tenn. Code Ann. § § 40-35-210(a) and (b), 40- 35-103; State v. Holland, 860 S.W.2d 53, 60 (Ten n. Crim. App. 1993).

From our review of the rec ord, the trial court did consider the sentencing pr inciples of the Tennessee Criminal Sente ncing Ref orm Act of 1989, thus our revi ew is with a presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Te nn. 1991). Since the defend ant cont ends she should no t have split confinement for six months, the record must support the trial court’s judgment. In requiring the defendant to serve six months, the trial court found confinement necessary to avoid depreciating the seriousness of the crime, confinement was necessary as a general deterrence, an d

[ t]h e potential for rehabilitation is something that is very questionable because in this pa rticular s ituation , we’ve had three or four different stories that M rs. Logan has told about whatactuallyhappened. She comesin today and tells ev en a different story. With her attorney making every effort possible to get her to accept res ponsib ility for the situation, she just refuses to completely do that. Under the circ ums tances, The Court feels that some period of incarceration is necessary although The Court d oes not f eel that the presu mptive minimum of three years total i s necessary.

In certain circumstances, a trial cour

t may d eny full probation and consider split confinement based on the s eriousness

of the offense. To

deny an al ternative sentence6

based on the seriousness of the offense, “the circumstances

of the offense as committed, must be especially vi olent, horrifying, shocki ng, reprehensible, offensive, or otherwise of an excessive or ex

aggerated degree,” and the nature ofthe offense must outweigh all of the factors that favo r a sen tence other than confinement. State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). W e cannot sa y the fact s in this record meet the standards set forth in Hartley, 818 S.W.2d at 37 4-75. H owever, in arri ving at a proper sentence and its im position, the trial court is entitl ed to inquire into the natur e and characteristics of the criminal conduct involved. Tenn. Code Ann. § 40-35-210(b)(4) ; State
v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983). We concur in the trial court’s finding that some confinement is appropriate for this offense. The defendant made a conscious decision tosmuggle marijuana into a penal insti tution in a baby carri er and to deliver the same to her husband. The Government has a legitimate interest i n preventing visi tors from smuggling drugs into prisons. Thus, consideration of the seriousness of the offense was appropriate.

As part of ordering the defendant to sp lit confinement, the trial cour t was concerned with deterrence. Before the court considers deterr ence, there must be some evidence in the record that the s entence imposed will have a d eterrent effect within the jur isdiction. State v. Bonestel, 871 S.W.2d 163, 170 (Tenn. Crim. A pp. 1993). This Court has repeatedly held that a finding of a deterrent effe ct within the jurisdiction cannot be merely concluso ry, but must be supported by proof. Ashby, 823 S.W.2d at 170. There is adequate evidence in the record to support the trial court’s determination that deterrence is applicable in these facts. Sergeant Vernon testif ied that a random monthly check of inmates for drugs reveals twenty-five perc en t of the inmate population tests positive for drugs, and the main introduction of ill egal drugs into the Nor thwest Correctional Complex is through visitors.Sergeant Vernon testified that heavy sentences will act as a deterrent in the prevention of

drug smuggling into penal institutions. We find the trial court w as correct in considering this factor.
Furthermore, in imposing the six- month confinement period, the trial court was7

concerned with the defendant’s lack of tr uthfulness and her potential for rehabi litati on. Credibility

is best judged by

the trial court, which is in the best position to see and ev aluate the testimony of a defendant. We have held that a defendant’s credibility and willingness to accept responsibility for the offense are ci rcumst ances relevant to determini ng her r ehabilitation potential. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. A pp. 1994) ; St ate v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim. App. 1992). We can logicall y assumethat one who seeks probati on and who is less than truthful about her invol vement in the offense would have a poor potential for successful rehabilitation. Such cons ideration of truthfulness by the trial court was appropriate unde rthese facts. During the i nitial search, the defendant admitted the marijuana w as hers, and t hen denied possession, resulting in he r and Tomeka Birds’s arrest s. The defendant explained her written statement to Sergeant Vernon as “I j ust agreed to it.” The defendant w as equivocal in her statements to the probation department. Also, in her testimony, the defendant w as equiv ocal before t he tria l court . We conclud e that th e trial court’ s consi deratio n of th e defendant’s candor was a relev ant factor

in determining the imposition of split confinement.

The defendant has failed to establish the t rial court’s decision, as to split confinement, was erroneous. Ther efore, the trial court’s j udgment is affirmed.

__ _______________________ ______________

_ L. T. LAFFERTY, SENIOR JU DGE CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ DAVID G. HAYES, JUDG E8