IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 15, 2014

STATE OF TENNESSEE v. AIVAR LANG

Direct Appeal from the Circuit Court for Marshall County

No. 2012-CR-181 Lee Russell, Judge

No. M2013-01839-CCA-R3-CD - Filed February 3, 2014

The Defendant, Aivar Lang, pled guilty to one count of possession of drug paraphernalia, a

Class A misdemeanor, and agreed to allow the trial court to determine his sentence. After

a sentencing hearing, the trial court sentenced him to eleven months and twenty-nine days

in the county jail. On appeal, the Defendant contends that his sentence is excessive. After

a thorough review of the record and applicable authorities, we conclude that no error exists

in the sentence imposed by the trial court, but a corrected judgment form is required.

Therefore, the sentence is affirmed, and we remand the case for correction of a clerical error

in the judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and

Case Remanded

ROBERT W.WEDEMEYER,J., delivered the opinion of the Court, in which JOSEPH M. TIPTON,

P.J. and THOMAS T. WOODALL, J., joined.

William J. Harold, Lewisburg, Tennessee, for the appellant, Aivar Lang.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney

General; Robert Carter, District Attorney General; and Weakley Edward Bernard, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

The Marshall County grand jury indicted the Defendant, Aivar Lang, for two counts

of possession of drug paraphernalia, one count indicted as a Class E felony and the other as
a Class A misdemeanor.

A. Guilty Plea Hearing

During the guilty plea hearing, the trial court reviewed with the Defendant his guilty

plea petition. The trial court noted that the proposed plea agreement contemplated that the

Defendant would plead guilty to Count 2, the misdemeanor charge of possession of drug

paraphernalia, and that the State would dismiss Count 1, the felony charge of possession of

drug paraphernalia. Further, the agreement provided that the trial court would set the

Defendant’s sentence.

The State then informed the trial court that the factual basis supporting the charge was

as follows:

The witnesses [in this case] are available, where they were called to the

stand, and they testified on June 4th, 2012, that agents of the 17th District

Drug Task Force obtained search warrants, and executed that search warrant

at the [D]efendant’s mother’s residence here in Marshall County, Tennessee.

They did this based upon some information they’d received from

Bedford County. In a case where they made a controlled purchase from the

bait shop, of what we commonly know as synthetic marijuana.

The[y] raided the bait shop, and they obtained both what I would call

prepackaged synthetic drugs and homemade synthetic drugs in zip-lock bags.

Upon consultation with the owner of the bait shop, she disclosed where

she was receiving these from, that being the [D]efendant. She was giving him

money and he was supplying her with both those types of drugs. And she was

selling it in Shelbyville. That was what caused the search warrant to be

obtained. On execution of that search warrant, they found several items, such

as green plant material that’s used as a basis for making synthetic marijuana.

They found flavoring. They found several other items that[ ][are] listed in the

indictment, that[ ] [are] part of the production.

We have a witness who will testify that he was there and present, and

would tell the Court and the jury how [the Defendant], he witnessed [the

Defendant] and assisted [the Defendant] in the preparation in what I call the

homemade, synthetic marijuana . . . .

2
The trial court ensured that the Defendant understood his rights and then accepted the

Defendant’s “best interest” guilty plea to one count of misdemeanor possession of drug

paraphernalia.

B. Sentencing Hearing

At the Defendant’ssentencing hearing, the trial court reviewed the presentence report,

which showed that the Defendant had previously been convicted twice of possession with

intent to sell a Schedule VI drug, marijuana, in an amount between ten and seventy pounds.

The Defendant received a four-year probationary sentence for each of those convictions. The

Defendant also had three prior convictions for the sale of marijuana. He was sentenced to

two years of probation for each of those three prior convictions. The Defendant pled guilty

to all of his prior convictions simultaneously, and his total effective sentence was six years

of probation beginning May 15, 2009.

After reviewing the report and the arguments of counsel, the trial court found:

[This conviction] does carry up to 11/29.

[ ][I]n return for pleading open to the misdemeanor [the State]

dispose[d] of the felony.

So, to say he gets credit for not putting us through a jury trial, we didn’t

go through a jury trial, that is true. He got considerable benefit from that. But,

the enhanc[ement] factors are not mandatory when we are talking about a

misdemeanor but they are instructive. He does have a history, a prior history

of drug convictions, two of which involved over 10 pounds of marijuana but

over a short period of time, December and January, one right after the other.

So it is a short period of time on the one hand but some very significant

drug activity on the other.

He was still on probation at the time he committed this offence [sic].

And I am going to find that enhanc[ement] factor[s] 1, 8 and 13 are in

fact all present. I am going to sentence him to 11 months and 29 [days] at 75

percent.

I am going to waive any fine in that situation unless it is mandatory.

3
. . . .

He is certainly not a candidate for alternative sentencing given this

history. If it were a felony . . . there would be a presumption in favor of it.

I think that would be well overcome under these circumstances with his p[a]st

record.

The trial court ordered that the Defendant’s sentence run consecutively to his sentences for

his previous convictions. The judgment form entered by the trial court does not reflect the

75% minimum service ordered by the trial court, and therefore, we are remanding the case

to the trial court for correction of the clerical error in the judgment.

II. Analysis

On appeal, the Defendant contends that his sentence is excessive. He asserts that his

sentence was not appropriate under the facts as stated in the record. He asserts that the

“totality of the circumstances” was such that it did not warrant the sentence imposed. The

Defendant points out that his felony convictions occurred several years before and that he has

no other convictions on his record.

Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-

302, which provides that the trial court shall impose a specific sentence consistent with the

purposes and principles of the sentencing statutes. See State v. Palmer, 902 S.W.2d 391, 394

(Tenn. 1995). While a separate sentencing hearing is not mandatory for misdemeanor

sentencing, the trial court is required to provide the defendant with a reasonable opportunity

to be heard as to the length and manner of the sentence. Tenn. Code Ann. § 40-35302(a).

The trial court must sentence the misdemeanor offender to a determinate number of hours,

days, or months, and fix a percentage of that sentence for the offender to serve, after which

the offender becomes eligible for rehabilitative programs. Tenn .Code Ann. § 40-35-302(d).

In determining the percentage of the sentence, the trial court must consider enhancement and

mitigating factors as well as the legislative purposes and principles related to sentencing. Id.

The misdemeanor sentencing statute grants the trial court the authority to place the defendant

on probation either immediately or after a time of periodic or continuous confinement. Tenn.

Code Ann. § 40-35-302(e).

When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.

2012). This standard of review also applies to “the questions related to probation or any

other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). This

4
court will uphold the trial court’s sentencing decision “so long as it is within the appropriate

range and the record demonstrates that the sentence is otherwise in compliance with the

purposes and principles listed by statute.” Id. at 709-10. Moreover, under such

circumstances, appellate courts may not disturb the sentence even if we had preferred a

different result. See Carter, 254 S.W.3d at 346.

The party challenging the sentence imposed by the trial court has the burden of

establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2010), Sentencing

Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). While the Tennessee

Supreme Court has not addressed whether the Bise and Caudle standard of review apply to

misdemeanor sentencing, this court has applied the abuse of discretion with a presumption

of reasonableness standard of review in misdemeanor sentencing cases. See, e.g., State v.

Michael Glen Walsh, No. E2012-00805-CCA-R3-CD, 2013 WL 1636661, at *4 (Tenn. Crim.

App. Apr.17, 2013), no perm. app. filed; State v. Sue Ann Christopher, No. E2012-01090-

CCA-R3-CD, 2013 WL 1088341, at *7 (Tenn. Crim. App. Mar.14, 2013), perm. app. denied

(Tenn. June 18, 2013). Therefore, we will apply that standard of review in this case. We

note that the supreme court has previously held that the sentencing court is entitled to

considerable latitude in misdemeanor sentencing. State v. Johnson, 15 S.W.3d 515, 518

(Tenn. Crim. App.1998) (citing State v. Troutman, 979 S.W.2d 271, 273 (Tenn.1998)).

In determining whether to grant or deny probation, a trial court should consider the

circumstances of the offense, the defendant’s criminal record, the defendant’s social history

and present condition, the need for deterrence, and the best interest of the defendant and the

public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). A trial court should base its

decision regarding any sentence involving confinement on the following considerations:

(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;

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

been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2010). Furthermore, the trial court should examine the

defendant’s potential for rehabilitation or lack thereof when determining whether an

alternative sentence is appropriate. Id. § 40-35-103(5).

Asthe trial court noted, the Defendant had multiple prior felony convictions, although

those offenses all occurred close in time to each other. The Defendant was on probation for

5
those offenses at the time that he committed the offense in this case. The Defendant has not

shown that the trial court abused its discretion when it sentenced him to serve eleven months

and twenty-nine days in the county jail.

III. Conclusion

Based on the record and aforementioned authorities, we conclude that trial court did

not err when it sentenced the Defendant. As such, the trial court’s judgment is affirmed, but

the case is remanded for correction of the clerical error in the judgment.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

6