FILED

August 17, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710-CC-00469

)

Appellee, )

)

) BLOUNT COUNTY

VS. )

) HON. D. KELLY THOMAS, JR.

MIKE RAMSEY, ) JUDGE

)

Appellant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF BLOUNT COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JULIE A. MARTIN JOHN KNOX WALKUP

P.O. Box 426 Attorney General and Reporter

Knoxville, TN 37901-0426

GEORGIA BLYTHE FELNER

MACK GARNER Assistant Attorney General

District Public Defender 425 5th Avenue North

419 High Street Nashville, TN 37243

Maryville, TN 37804

MIKE FLYNN

District Attorney General

PHILIP MORTON

Assistant District Attorney General

363 Court Street

Maryville, TN 37804

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

Tenn. Code Ann. § 39-17-417.

-2-

OPINION

The Defendant, Mike Ramsey, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. He was convicted, upon his pleas of

guilty, of two counts of delivery of marijuana, Class E felonies, and one count of

possession of cocaine for the purpose of resale, a Class B felony.1 The agreed

sentences for the two Class E felonies were two years as a Range I standard

offender. The agreed sentence for the Class B felony was eight years as a

Range I standard offender. It was further agreed that the two-year sentences

were to be served concurrent with each other but consecutive to the eight-year

sentence, for an agreed effective sentence of ten years. The manner of service

of the sentences was left to the discretion of the trial judge. After conducting a

sentencing hearing, the trial judge ordered that the Defendant serve seven

months in the county jail for the Class E felonies, followed by a consecutive term

of five months in the county jail for the Class B felony, for a total of twelve months

in the county jail. The balance of the effective ten-year sentence was ordered to

be served in the community corrections program. The Defendant appeals from

the trial judge’s order that twelve months of the sentences be served in

confinem ent. We affirm the judgment of the trial court.

The marijuana charges resulted from the Defendant’s sale of marijuana to

a confidential informant. While the marijuana charges were pending, the

Defendant was arrested on a charge of possessing more than .5 grams of

cocaine. The indictments state that the marijuana sales occurred on January 9
-3-

and January 16, 1996, and that the cocaine possession took place on August 26,

1996. On appeal, the Defendant argues that the trial judge abused his discretion

by requiring the Defendant to serve an additional five months for the cocaine

conviction.

When an accused challenges the length, range, or manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

The presentence report reflects that the Defendant was twenty-eight years

old, single, and had no children. His formal education ended with the eleventh

grade but the Defendant stated that he earned his GED. His employm ent history

is fair. He lost his most recent job as an electrician’s assistant due to his arrest
-4-

and legal problems. He had been terminated from his prior employment because

he was suspected of smoking marijuana while on his break and subsequently

refused to take a drug test. 

The Defendant’s criminal history is quite extensive. He has been arrested

approximately eighteen times. Among his convictions are several traffic offenses

(including two convictions for driving on a suspended license), one public

intoxication, one casual exchange of marijuana, one sale of marijuana, two thefts,

and several other unspecified misdemeanors. On the dates of the marijuana

sales, the Defendant was on probation from prior convictions. At the time the

Defendant was charged with possessing the cocaine, his probation had expired

but he was on bond pending resolution of the marijuana charges.

The Defendant testified concerning his long history of drug and alcohol

abuse. He started experimenting with marijuana when he was about thirteen

years old. In addition to alcohol, he “went to pills like valium s, and then

eventually . . . started cocaine use.” He reached the point that he was

experiencing memory loss and blackouts. He said that he sold marijuana to

support his own drug habit. The Defendant admitted that he started using

cocaine fairly heavily following his arrest on the charges of selling marijuana.

The Defendant testified at the sentencing hearing that he had been in jail for

about five months, and ?after being in jail this long and they’ve been

overcrowding us, and for fear of going to prison, I intend to walk a straight line

and show the court I can do right.”
-5-

Concerning the amount of time the Defendant was to serve in confinem ent,

the judge stated, 

He is being given an alternative sentence, but still the — giving him

the longer time in custody, I think, are all the same things that would

have justified sending him to the penitentiary. That is, it’s necessary

to protect society by restraining a person who has a long history of

criminal conduct, necessary to avoid depreciating the seriousness

of the offense, and things less restrictive than confinement have

been used recently without success. All of those things apply to this

set of facts that we have here.

We believe that the Defendant’s lengthy criminal record, the failure of past

attempts to rehabilitate him, and his continued disregard for the laws of this State

justify the length of confinement ordered by the trial judge. Trial judges are

traditionally vested with broad discretion in sentencing matters. From this record,

we are unable to conclude that the trial judge erred or abused his discretion.

The judgment of the trial court is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE