### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M ay 14, 2003
STATE OF TENN ESSEE v. GIESELA ROB INSON
Direct Appeal from the Criminal Court for P utnam County No. 01-0207 Leon Burns & Lillie Ann Sells, Judges

No. M2002-00548-CCA-R3-CD - F iled June 10, 2003

The Defendant pled

guilty to one cou

nt of fac ilitation o f the poss ession of over .5 g rams of cocaine withthe intent to

sell or deliver, a Class C felony . In accorda nce with her plea agree

ment, she was sentenced to a term o f six y ears, w ith the manner of service of the sentence to be determined by the trial court. After a sentencing hea ring, the trial court ordered her se ntence to be served in the Department

of Correction. In this app eal, the Defendant argues that the trial c ourt erred by not granting her probation or some other form of alternative sentence. We a ffirm the judgment of the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined.
H. Marshall Judd, Cookeville, Tennessee, for the appellant, Giesela Robinson.

Paul G. Summers, Attorney Ge neral and Reporter; Renee W .Turner , Assistan t Attorne y General ; Bill Gibson, District Attorney

General; and David Patterson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant was charged in a seven-count indictment with (1) possession of over .5 gra ms of cocaine withthe inten

t to sell; (2 ) possess ion of ove r .5 gra ms of cocaine with intent to deliver; (3) possession of drug paraphernalia; (4) possession of Schedule IV controlled substance s with the intentto sell; (5) pos sessio n of Schedule IV controlled substanc es with intent to deliver; (6) tampering with or fabricating evidence; and ( 7) res is ti ng a rre st . In a negotiated plea agr eement, the Defendant

pleaded guilty

to one count of facilitation of possession of over . 5 gramsof coca ine with the intent to

sell, a Cla ss C felony . Her ple a agre ement pr ovided fo r a sente nce of si x yea

rs, with the
manner of service of the sentence to be determined by the tr

ial court. In exchange

for her guilty

plea,-2-

the State ag

reed to n olle all ot

her cha rges se t forth in the indictment. Following a sentencing hearin g, the trial court denied any alternative sentencing options and ordered the Defendant

to serve her sentence in the Department of Correction. The De fendant now appeals, arguing that the t rial court should have granted her probation or some ot

her alte rnative to incarceration in the Department of Correction.

When an accused challenges the leng th, range, or

manner of service of a sentence , this Court has a duty to conduct a de novo review of the sentence witha presumption that the determinations made by the trial court a

re correct. See Tenn. Code Ann. § 40-35-401(d). T his presumption is “condition e d upon the affirmative showing in the record that the tria l court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, re ceived

at the trial and sentencing hearing; ( b) the presentence report; (c) the principles of sentencing and arg

uments as to sentencing al ternativ es; ( d) th e nature and characteristics of the criminal conduct involved; (e) any statutory mitigating

or enhancement factors ; ( f) an y statement made by t

he defe ndant re garding sente

ncing; a nd (g) t he pote ntial or lack of potential for rehabilitation or treatment. SeeTenn. Code Ann. §§ 40-35 -102, -1 03, -210; State v. Brewer , 875 S.W.2d 298, 302 (Tenn. Cri m. App. 19 93); State v. Thomas , 755 S.W.2d 8 38, 844 (T enn. Crim. App. 1988).

If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imp osed a lawful sentence after having given due consideration and proper we ight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely su pp or te d b y th e r ec or d, th en we ma y no t m od if y the sent ence even if we would have prefe rred a different result. See State v. Pike , 978 S.W.2d 9 04, 926-2 7 (Tenn. 1998); State v

. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A defendant who “is an especially mitigatedor standard offender convicted of a Class C, D,
or E felony is presumed to be a favorable candidate for a lternative sentencing options in the absence of evidence to the contr

ary .” Tenn. Code Ann. § 40-35-1 02(6); State v. Lane , 3 S.W.3d 456, 462 (Tenn. 1999). Guidance rega rding what constitutes “evidence to the contrar y” which would re

but the presumption of alter

native se ntencing can be f ound in Tennessee Code Annotated section 40-35- 103(1), w hich sets forth the

following

consider ations:
(A) Confi nemen t is n ecessa ry to prot ect so ciety by rest raini ng a defendant who has a long h istory of crimin al conduc

t; (B) Confinement

is necessary

to avoid depreciating the seriousness of the offense or confinement

is particularly suited

to provide a

n effective dete

rrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement ha v e frequently

or recently

been applied unsuccessfully

to the defendant[.]1 The recor d ref lect s t hat the tape of the se nten cing hear ing was de str oyed i n a f lood.
-3- See State v. Hooper , 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby , 823 S.W.2d 166, 170 (Tenn. 1991).

Ad di ti on al ly, the principles of sentencing reflec t that the sentence should be no greater than that deserved for the offense committed and should be the least severemeasure necessary to achieve the purpos es for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The court should als o conside

r the pote

ntial for rehabil itation or treatme nt of the defenda

nt in determining the appropriate sentence

. See id. § 40-35-103(5).

A defenda

nt is e ligible

for prob ation if th

e actua l sentenc e imposed

upon the d

efenda nt is eight years or less and the offense for which the defendant

is sentenced is not specifically excluded by statute. See Tenn. Code Ann. § 40-35-303(a). Probation is to be au tomatica lly c onsidere d as a sentence alternative for eligible defenda nts; however, the burden of proving suitability for probation rests with the defendant. See id. § 40-35-303(b).

In determining whether to grant proba tion, the court must consider the nature and circumstances of the of

fense; th e defendant’s c

rimi nal record; his or her backgr ound and social hi st or y; h is or her present condition, including phy sical and mental condition; the deterrent effect
on the defe

ndant; and the li

kelihood t

hat proba tion is in the

best inter ests of bo th the publ

ic and the defenda nt. See Stiller v. St

ate , 516 S.W.2d 6 17, 620 (T enn. 1974 ); State v. Ken drick , 10 S.W.3d 650, 656 (Ten

n. Crim. App. 1999). If th e court d etermine s that a pe

riod of pr obation is appropriate, it shall s entence the def

endant to a specific sentence but then suspend that sentenc e and place the defendant on supervised or unsupervised probation either immediately or after the service of

a period of confinement. See Tenn. Code Ann. §§ 40-35-303(c), -306(a).

We glean from

the guilty plea

transcript and presentence report that the c harges against the Defendant

resulted from a drug investigation and the execution of a searc h warrant for the residence of the Defendant’s co -defen dant, where the Defendant was also pre sent. The search produced approxima

tely twenty grams o f cocai ne, scal es, misce llaneousparaphe

rnalia, and over

thirty tablets determi ned to be altrazolam, diazepam and clonazepam. At the time the search warr ant wa s executed, the Defendant was discovered by t he offic ers atte

mpting to flush several bags of cocaine down a toi let. When th

e police attempte d to apprehend her, the Defendant attempted to evade the officers and resisted arrest.
According to the present

ence re port, at th e time of sentencing the Defendant wa s thirty-nine yearsold and single. Her formal education ende d with the eleventh grade, and she reported having
no significant employ

ment histor y. She was unemployed at the time of he r arrest. Although the record does not c ontain

a verba tim t ranscr ipt o f the s enten cing he aring, 1 the Defendant did file a very brief statement of the evidence presented at the sente n cing hearing pursuant to Rule 24(c) of the Tennessee Rules of Appellate Procedure. According to this statement of the evidence, the Defendant testified that she had “previously went into drug rehabilitation prior to her sentencing hearing and-4-

was willing t

o continue

withany necessa ry treatme nt for he r addict ion.” The statemen t also ref lects that the Defe ndant “f elt that she had taken steps to rehabilitate herself and could be a law-abiding citizen.”

In he r prese ntence r eport, the Defe

ndant subm

itted the f ollowing statemen t: I was living with L

eroy Mar tin for a while and we both happened to get hooked

on cocaine. I ba sically

feel and think I was at the

wrong p lace at

the wron g time. I

did grab the drug s off the

coffee table and tried to f

lush them. To me that

was auto matic first instinct also b eing str ung out I was frig htened a nd not think

ing cle arly

at all.

Acco r ding to th e stat ement of the evide nce pre sente d at th e sent encin g hearin g, the t rial j udge deniedalterna

tive sente

ncing o ptions and

ordere d her sen

tence se rved in the Dep artment of Correction based primarily upon the D efendant’s pr ior cr iminal history. The presentenc e report certain ly reflects a signifi cant prior criminal history. The re port reflects that, during 2001, the Defendant

receiv ed appro ximately

thirty convicti ons, appa

rently all misdemeanors, for passing worthles s checks. These offenses were c ommitted wi thin a time -frame

of about eight months. For eachof these offenses, she received a se ntence of eleven months and twenty -nine days, a nd some of the sentences were apparently ordered to be served consecutively . Most of the j ail ti me was suspende d, althoug

h she wasordere d to serve some time i n the coun

ty ja il.

In 1986, the Defendant was convicted of driving while under the influenc e of an in toxicant. In addition to a fine and suspende d se ntence, she was o rdered to serve forty -five da

ys i n confine ment.

At the time th

e Defe ndant ple d guilty

in this case, she was servinga ninety-day term in the county jail as a re sult of her probation being revoked. She had bee n on probation for a

conviction for simple possession of cocaine. Also, the presentence re port reflects that there

were tw o worthle ss check charges pending ag ainst the Defendant in an adjoining co unty at t he time the presentence report was prepared.

It is apparent from the record that, except for the 1986 DU I conviction, the Defenda

nt did not have a significant record of criminal activity prior to June

of 2000, w

hen the se arch wa

rrant in this
case was executed. It is also appare nt from the record

that, at the time the Defendant was sentenced in this case, she had quickly accumulated

a significant number of criminal convictions. We conclude that the Defe ndant’s h istory of crimin al conduct is suffic ient to rebut the presumption that she was entitled to an alternative sentence. For the sa me reason, we conclude that the trial judge a cted with in her discretionary a

uthor ity when s he ordered the Defendant’s sente nce to be served in the Department of Correction.

The Defend ant also a ss erts that her co-defendant rece ived probation and that her sentence should be no more onerous than his. She notes that one of the purposes of our sentenc ing law

is to eliminate unjustified disparity in sentencing

. See Tenn. Code Ann. § 40-35-102(2). The record before us do es not conta in a tr anscri pt of t he co-d efenda nt’s gu ilty ple a or sen tenci ng heari ng.-5-

According to the co- defenda nt’s p resentenc e report, which is in the record, he had only one prior criminal convicti on, a misde meanor d rug co nviction. The rec ord in this c ase does n ot support a finding of unjustif

ied dispa rity in sentencing. T

his argument hasno merit.
The judgment of the trial court is according ly affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE