IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 8, 2005 

STATE OF TENNESSEE v. JOANN WHITE POGUE

Direct Appeal from the Circuit Court for Marshall County

Nos. 15733, 15734, 15735, 15736, 15737 William Charles Lee, Judge

No. M2004-00905-CCA-R3-CD - Filed June 3, 2005

The appellant, Joann White Pogue, pled guilty in the Marshall County Circuit Court to five counts

of delivery of morphine and five counts of selling morphine, Class C felonies. The trial court

merged each delivery conviction into a conviction for selling morphine and sentenced the appellant

to an effective nine-year sentence in the Department of Correction (DOC). On appeal, the appellant

claims the trial court improperly enhanced her sentences and improperly concluded that she was not

entitled to the presumption that she was a favorable candidate for alternative sentencing. We agree

that the trial court improperly applied enhancement factors and that the appellant was entitled to the

presumption. Upon review of the record and the parties’ briefs, we conclude that the trial court erred

in its sentencing determinations and remand for resentencing.

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

Remanded.

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which JOSEPH M. TIPTON and J. C.

MCLIN, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, and Michael J. Collins, Shelbyville, Tennessee, for the

appellant, Joann White Pogue.

Paul G. Summers, AttorneyGeneral andReporter; andBrent C. Cherry, Assistant Attorney General;

William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At the appellant’s guilty plea hearing, the state presented the following factual account of the

crimes: On November 5, 12, 15, 17, and 19, 2002, agents from the Seventeenth Judicial District

Drug Task Force watched as the appellant arrived at the home of a confidential informant and sold
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him morphine pills. The appellant was arrested and gave a statement on January 17, 2003. In the

statement, the appellant said that she had a prescription for morphine and began selling 30 milligram

and 80 milligram pills in 2001 for extra money. The appellant estimated that she had sold between

$5,000 and $10,000 worth of pills. 

At the sentencing hearing, Beth Ladner from the Tennessee Probation and Parole Department

testified that she prepared the appellant’s presentence report. The appellant gave a statement for the

report, and according to the statement, the appellant had been diagnosed with liver cancer, and her

doctors had prescribed morphine pills for her. The appellant began taking the drug intravenously

and selling the pills in order to pay her bills. Ms. Ladner testified that a drug task force agent also

gave a statement for the presentence report. In the statement, the agent stated that the appellant

admitted to him that she had sold morphine to at least twelve people and had sold about seven

hundred pills. Ms. Ladner testified that the appellant has prior convictions for disorderly conduct,

assault, and shoplifting and has been receiving disability payments since 1995. She stated that the

appellant had received an alternative sentence and drug treatment in the past. She related that the

appellant has three children and that all three were in prison.

Detective Kevin Patin of the Lewisburg Police Department testified that he investigated the

death of a man named James Kelly and that an autopsy revealed Mr. Kelly died of a morphine

overdose. Mr. Patin talked with the appellant about Mr. Kelly’s death, and the appellant eventually

admitted to him that Mr. Kelly injected morphine at her home about nine hours before his death. On

cross-examination, Mr. Patin testified that he presented evidence against the appellant to a grand

jury, but the appellant was not indicted for Mr. Kelly’s death.

The forty-nine-year-old appellant testified that a doctor diagnosed her with liver cancer three

years ago and prescribed morphine pills for her. She became addicted to the drug, began taking it

intravenously, began selling the pills, and made excuses to her doctor in order to get new morphine

prescriptions. Although the appellant was still taking the drug, she stopped abusing it when she went

to jail for the current offenses. She related that in addition to liver cancer, she suffered from hepatitis

C, sleep apnea, and diabetes. She stated that she took Zoloft for anxiety and insulin twice a day for

her diabetes. She stated that she currently was undergoing chemotherapy for her cancer and that

doctors expected her to live another five to ten years. The appellant related that she had not worked

in five years. On cross-examination, she acknowledged that Mr. Kelly “shot up” morphine in her

home before he died. She said that with the money she made from selling the morphine pills, she

helped some people pay their rent and electric bills, bailed some people out of jail, and donated

turkeys to her church. She acknowledged that she sold morphine pills out of her home and had

people selling and delivering the pills for her.

The trial court found that the appellant was a Range I, standard offender. The trial court

applied enhancement factors (2), that the appellant has a “previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the appropriate range”; (11), that the

appellant “had no hesitation about committing a crime when the risk to human life was high”; and

(17) that the “crime was committed under circumstances under which the potential for bodily injury
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to a victim was great.” See Tenn. Code Ann. § 40-35-114(2), (11), (17). It also applied

enhancement factor (16), that the appellant abused a position of private trust, on the basis that she

abused the doctor/patient relationship when she obtained the morphine prescriptions from her doctor.

See Tenn. Code Ann. § 40-35-114(16). For three of her convictions, the trial court enhanced her

sentences from the three-year minimum in the range for a Class C felony to four years. See Tenn.

Code Ann. 40-35-112(a)(3). For the remaining two convictions, the trial court enhanced the

sentences to five years. The trial court ordered that the four-year sentences be served concurrently

to each other and that the five-year sentences be served concurrently. However, because of the

appellant’s criminal history, the trial court ordered that the concurrent four-year sentences be served

consecutively to the five-year sentences for an effective sentence of nine years. See Tenn. Code

Ann. 40-35-115(b)(2). Regarding alternative sentencing, the trial court held that the appellant was

not entitled to the presumption that she is a favorable candidate for alternative sentencing. See Tenn.

Code Ann. § 40-35-102(6). The trial court then stated that in light of the appellant’s poor social

history and the need to deter others from committing similar crimes, the appellant should serve her

sentences in confinement.

II. Analysis

The appellant claims the trial court misapplied enhancement factors and improperly

determined that she was not entitled to the presumption that she was a favorable candidate for

alternative sentencing. The state concedes that the trial court misapplied enhancement factors (11),

(16), and (17) to the appellant’s sentences. However, it concludes that her four- and five-year

sentences were appropriate in light of the trial court’s proper application of enhancement factor (2)

for her prior criminal convictions and criminal behavior. We agree with the appellant that the trial

court misapplied three enhancement factors in this case. We also agree that she was entitled to the

presumption that she is a favorable candidate for alternative sentencing. 

Appellate review of the length, range, or manner of service of a sentence is de novo. See

Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers the

following factors: (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 and characteristics of the criminal conduct involved; (5) evidence and information offered

by the parties on enhancement and mitigating factors; (6) any statement by the appellant in her own

behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-102, -103,

-210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant

to demonstrate the impropriety of her sentences. See Tenn. Code Ann. § 40-35-401, Sentencing

Commission Comments. Moreover, if the record reveals that the trial court adequately considered

sentencing principles and all relevant facts and circumstances, this court will accord the trial court’s

determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

A. Enhancement Factors

The appellant and the state agree that the trial court misapplied enhancement factors (11),
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(16), and (17) in this case. Regarding factor (11), that the appellant had no hesitation about

committing a crime when the risk to human life was high, there was no evidence of any risk to

human life during the transactions that occurred between the appellant and the confidential

informant. As to enhancement factor (16), that the appellant abused a position of private trust, the

trial court held that it applied because “the position of patient trust . . . was abused in an effort or in

order to facilitate the situation of these crimes.” However, in determining whether to apply this

factor, the trial court should “look to see whether the offender formally or informally stood in a

relationship to the victim that promoted confidence, reliability, or faith.” State v. Kissinger, 922

S.W.2d 482, 488 (Tenn. 1996). No victim or such relationship existed in this case. Similarly,

regarding factor (17), that the crime was committed under circumstances in which the potential

bodily injury to a victim was great, no victim existed in this case. Thus, the trial court improperly

applied the three enhancement factors. The appellant also claims the trial court misapplied

enhancement factors under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). However,

in light of our supreme court’s recent holding in State v. Edwin Gomez, ___ S.W.3d ___, No.

M2002-01209-SC-R11-CD, 2005 Tenn. LEXIS 350, at *36-71 (Nashville, Apr. 15, 2005), petitions

to rehear filed, (Apr. 2005), the appellant’s Blakely argument must fail.

B. Presumption for Alternative Sentencing

Next, the appellant claims the trial court improperly held that she was not a suitable candidate

for alternative sentencing. We agree. Tennessee Code Annotated section 40-35-102 provides,

(5) 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; and

(6) A defendant who does not fall within the parameters of

subdivision (5) and who is an especially mitigated or standard

offender convicted of a Class C, D or E felony is presumed to be a

favorable candidate for alternative sentencing options in the absence

of evidence to the contrary.

In the present case, the appellant was convicted offiveClass C felonies. Nevertheless, the court held

that she was not entitled to the presumption that she is a favorable candidate for alternative

sentencing for two of her convictions. The trial court stated,

This Court is of the opinion -- however, I have not seen any

case law that squarely addresses this proposition, since the Criminal

Sentencing Reform Act of 1989 has been passed. But I have long

since felt that the presumption that one enjoys does not -- the
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Defendant does not enjoy that in every case where the Defendant

stands before the Court with multiple convictions. Surely, for

example, if a person has broken into 25 or 30 different homes, that

although they might have the presumption on the first home and

perhaps the second home or third home, that the Defendant surely is

not presumed to be a candidate for alternative sentencing on home

Number 35.

. . . .

And given that the Court has found that the Defendant lacks

the presumption which she enjoyed in all of her cases, then the Court

denies her request for alternative sentencing.

. . . .

In this case, since it is a close question of law, the Court will

allow the Defendant to remain upon an appeal bond in the same

amount that has been posted by the Defendant as her appearance bond

if her surety will remain upon it.

The Court does that because it would be an injustice if the

Court is not correct concerning it’s interpretation of the law, given the

fact that the Defendant’s life expectancy is not as great as others to

incarcerate her pending the appeal. So perhaps we will get an answer

to the Court’s question concerning in which case the person loses

their presumption.

Despite the trial court’s misgivings, Tennessee Code Annotated § 40-35-102(6) plainly states

that if a defendant is convicted of Class C, D, or E felonies and does not fall within the parameters

of subsection (5), then the defendant is entitled to the presumption. This is true regardless of how

many convictions are involved. See, e.g., State v. Zeolia, 928 S.W.2d 457 (Tenn. Crim. App. 1996)

(noting that defendant convicted of four counts of arson, a Class C felony, was entitled to the

presumption that he was a favorable candidate for alternative sentencing). Given that all of the

appellant’s convictions were Class C felonies, she was entitled to the presumption that she is a

favorable candidate for alternative sentencing for all of them. Thus, this case must be remanded to

the trial court for resentencing.
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III. Conclusion

Upon review of the record and the parties’ briefs, we affirm the convictions; however, finding

error in the trial court’s sentencing determinations, we remand for resentencing.

___________________________________ 

NORMA McGEE OGLE, JUDGE