IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 17, 2009

STATE OF TENNESSEE V. LAVON DENISE RANSOM

Appeal from the Circuit Court for Bedford County

No. 16203, 16628 & 16629 Robert Crigler, Judge

No. M2009-00150-C-CA-R3-CD - Filed January 25, 2010

Appellant, Lavon Denise Ransom, pled guilty in Bedford County to two counts of possession

of cocaine for resale, two counts of possession of cocaine for delivery, and one count of

selling cocaine. Several of the convictions were merged by the trial court, and Appellant

received an effective ten-year sentence. She appeals the denial of alternative sentencing.

After a review of the record, we determine that the trial court properly denied alternative

sentencing where Appellant had an extensive criminal history, had failed to comply with

conditions of sentences involving release into the community and confinement was needed

to protect society by restraining a defendant who has a long history of criminal conduct, and

to avoid depreciating the seriousness of the offenses. Therefore, the judgments of the trial

court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are

Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

CAMILLE R. MCMULLEN, JJ., joined.

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the

appellant, Lavon Denise Ransom.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; Charles Crawford, District Attorney General, and Michael D. Randles and Hollyn

Eubanks, Assistant District Attorneys General for the appellee, State of Tennessee.
OPINION

Factual Background

Appellant was indicted by the Bedford County Grand Jury in three separate

indictments. In case number 16602, Appellant was indicted for one count of possession of

more than .5 grams cocaine for resale and one count of possession of more than .5 grams of

cocaine for delivery. In case number 16628, Appellant was indicted for one count of

possession of more than .5 grams cocaine for resale and one count of possession of more than

.5 grams of cocaine for delivery. Finally, in case number 16629, Appellant was indicted for

the sale of more than .5 grams of cocaine and one count for the delivery of more than .5

grams of cocaine.

On November 17, 2008, Appellant pled guilty to the charges in the indictments in an

open plea, with the manner and length of the sentence to be determined by the trial court at

a hearing. At the guilty plea hearing, the facts which gave rise to the indictments were

summarized by the district attorney. In case number 16602, the task force had been receiving

information about Appellant for a “period of time” that led to a consensual search of

Appellant’s residence. During the search, 2.8 grams of cocaine were found in a medicine

bottle under the bathroom sink. In case number 16628, Appellant was arrested in

conjunction with “a rather extensive investigation involving a number of people.” Appellant

was carrying 3.9 grams of cocaine in her purse. In conjunction with this arrest, Appellant

“made an admission and gave a statement to the effect of her involvement in the distribution

of crack cocaine.” Finally, in case number 16629, Appellant was arrested after selling $100

worth of crack cocaine to a confidential informant. The cocaine in that case weighed .6

grams. Appellant was out on bond for the first arrest at the time of each subsequent arrest.

At the sentencing hearing, the trial court heard testimony from Timothy Lane, director

of the 17 Judicial Task Force. Director Lane described the “bad” crack cocaine problem

th

that existed in Bedford County. He commented that the drug problems had a negative impact

on the community as well as individual families. According to Director Lane, Appellant had

admitted to selling nearly $10,000 worth of crack cocaine and was able to provide the names

of other people who were selling drugs in the area.

Appellant testified that she was thirty-two years old. Appellant did not have custody

of her fourteen-year-old daughter. The child lived with her grandmother. Appellant admitted

thatshe had an addiction and had cooperated with authorities by providing the names of other

drug sellers because it was in her best interest. Appellant also admitted to a “terrible”

employment history. Appellant’s entire work history was comprised of two jobs, working

-2-
for two weeks at Tyson when she was eighteen years old and working for eight months at

McDonald’s when she was thirty years old. Appellant had never attended drug treatment and

informed the trial court that she had a lengthy criminal record. Appellant now claimed that

she wanted to get treatment for her addiction, asking the trial court to sentence her to

Community Corrections. Appellant denied that she had admitted to selling $10,000 worth

of drugs, estimating that she had only sold about $1,000 worth.

At the conclusion of the hearing, the trial court examined the enhancement and

mitigating factors in Tennessee Code Annotated sections 40-35-114 and -115 and applied

mitigating factor (13), the “catch-all” factor, because Appellant chose to plead guilty,sparing

the State the expense of trial. T.C.A. § 40-35-115(13). Additionally, the trial court found

Appellant’s actions “indicative of remorse” and concluded thatshe was “an honest witness.”

The trial court also applied mitigating factor (9), finding that Appellant had assisted

authorities in her willingness to name other drug dealers. T.C.A. § 40-35-115(9).

The trial court applied two enhancement factors relating to appellant’s prior criminal

history, factor (1), that Appellant had a previous history of criminal convictions in addition

to those necessary to establish the appropriate range, and that Appellant has failed to comply

with conditions of sentences involving release into the community on a number of occasions,

factor (8). T.C.A. § 40-35-114(1), (8).

As a result, in case number 16602, the trial court merged the conviction for possession

with intent to deliver with the conviction for possession with intent to sell and sentenced

Appellant to a ten-year sentence as a Range I, standard offender. In case number 16628, the

trial court again merged the conviction for possession with intent to deliver with the

conviction for possession with intent to sell and sentenced Appellant to a ten-year sentence

as a Range I, standard offender. Finally, in case number 16629, the trial court merged the

conviction for “delivery” with the conviction for “sale over half a gram” and sentenced

Appellant to a ten-year sentence. The trial court ordered the sentences to run concurrently.

The trial court denied alternative sentencing, noting that Appellant was “out on bond”

for the first two offenses when the third offense was committed. The trial court found that

Appellant’s work history was “terrible” and her social history and education were “poor.”

The trial court opined that Appellant “could not . . . successfully complete Community

Corrections or probation.” The trial court determined that an alternative sentence was

inappropriate because “confinement [wa]s needed to avoid depreciating the seriousness of

the offense.” To that end, the trial court accredited the testimony of Director Lane. The trial

court also felt that this meant “confinement [wa]s particularly suited to provide an effective

deterrent to people likely to commit similar offenses.” Finally, measures less restrictive than

confinement had been previously applied to Appellant without success.

-3-
Appellant appeals the denial of an alternative sentence.

Analysis

On appeal, Appellant argues that the trial court improperly denied alternative

sentencing. Specifically, Appellant argues that because she was sentenced to Class B

felonies with a sentence of less than ten years she should have been granted an alternative

sentence. She claims that there is no proof in the record that the sentence would have a

deterrent effect and that probation would be in her best interest and the best interest of the

public. The State, on the other hand, argues first that Appellant failed to file a notice of

appeal. Additionally, the State argues that the trial court properly denied alternative

sentencing.

At the outset, we note that the State argues that this Court lacks jurisdiction to hear

Appellant’s appeal. The State contends that the technical record does not contain a notice

of appeal, so this Court has no jurisdiction. The record on appeal contains a notice of appeal

that was stamped “received” on December 9, 2008, and a motion to consolidate cases

numbered 16602, 16628 and 16629 that was filed on January 29, 2009. This Court issued

an order noting that one notice of appeal was filed and that the cases had been given one

docket number on appeal, so Appellant’s motion to consolidate was moot. Therefore, we

believe we have jurisdiction of this appeal.

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo

review on the record of the issues. The review shall be conducted with a presumption that

the determinations made by the court from which the appeal is taken are correct.” T.C.A. §

40-35-401(d). “[T]he presumption of correctness ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies

inappropriate mitigating and/or enhancement factors or otherwise fails to follow the

Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant

bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at

169.

In making its sentencing determination, the trial court, at the conclusion of the

sentencing hearing, first determines the range of sentence and then determines the specific

sentence and the appropriate combination of sentencing alternatives by considering: (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

-4-
and characteristics of the criminal conduct involved; (5) evidence and information offered

by the parties on the enhancement and mitigating factors; (6) any statistical information

provided by the administrative office of the courts regarding sentences for similar offenses,

(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;

and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b),-103(5);

State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

When imposing the sentence within the appropriate sentencing range for the

defendant:

[T]he court shall consider, but is not bound by, the following advisory

sentencing guidelines:

(1) The minimum sentence within the range of punishment is the sentence that

should be imposed, because the general assembly set the minimum length of

sentence for each felony class to reflect the relative seriousness of each

criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate, by

the presence or absence of mitigating and enhancement factors set out in §§

40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (emphasis added). However, the weight given by the trial court to the

mitigating and enhancement factors are left to the trial court’s discretion and are not a basis

for reversal by an appellate court of an imposed sentence. Carter, 254 S.W.3d at 345. “An

appellate court is . . . bound by a trial court’s decision as to the length of the sentence

imposed so long as it is imposed in a manner consistent with the purposes and principles set

out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

With regard to alternative sentencing, Tennessee Code Annotated section

40-35-102(5) provides as follows:

In recognition that state prison capacities and the funds to build and maintain

them are limited, convicted felons committing the most severe offenses,

possessing criminal histories evincing a clear disregard for the laws and morals

of society, and evincing failure of past efforts at rehabilitation shall be given

first priority regarding sentencing involving incarceration. . . .

-5-
A defendant who does not fall within this class of offenders “and who is an especially

mitigated offender or standard offender convicted of a Class C, D, or E felony should be

considered as a favorable candidate for alternative sentencing options in the absence of

evidence to the contrary. A courtshall consider, but is not bound by, this advisory sentencing

guideline.” T.C.A. § 40-35-102(6); see also Carter, 254 S.W.3d at 347. Furthermore, with

regard to probation, a defendant whose sentence is ten years or less is eligible for probation.

T.C.A. § 40-35-303(a).

However, all offenders who meet the criteria for alternative sentencing are not entitled

to relief; instead, sentencing issues must be determined by the facts and circumstances of

each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State

v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). Even if a defendant is a favorable candidate

for alternative sentencing under Tennessee Code Annotated section 40-35-102(6), a trial

court may deny an alternative sentence because:

(A) Confinement is necessary to protectsociety 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

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant. . . .

T.C.A. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the trial

court should also consider Tennessee Code Annotated section 40-35-103(5), which states,

in pertinent part, “[t]he potential or lack of potential for the rehabilitation or treatment of a

defendant should be considered in determining the sentence alternative or length of a term

to be imposed.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim.

App. 1994). The trial court may consider a defendant’s untruthfulness and lack of candor

as they relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289

(Tenn. Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983);

State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919

S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

-6-
Appellant herein pled guilty to two counts of possession of cocaine with the intent to

sell, a Class B felony, and one count of selling over .5 grams of cocaine, also a Class B

felony. She was also sentenced to a sentence of ten years. Therefore, she is eligible for

alternative sentencing including probation. See T.C.A. §§ 40-35-102(6) & -303(a).

The presentence report shows that Appellant had a criminal history spanning at least

fourteen years with a “history of probation revocations and failure to pay fines and costs.”

Appellant had at least four revocations of probation in the past. Clearly, her history of failed

probation attempts alone supports a denial of alternative sentencing. See T.C.A. §

40-35-102(6)(C). Additionally, there was testimony in the record from Director Lane that

there was a need for deterrence in the county due to the seriousness of the drug problems.

We have reviewed the record on appeal and find that the trial court considered the sentencing

principles and all pertinent facts in the case, therefore, there is a presumption of correctness

in the findings of the trial court. There is ample support for the denial of probation or any

form of alternative sentencing with regard to Appellant.

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

___________________________________

JERRY L. SMITH, JUDGE

-7-