### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE June 18, 200 8 S es sio n

STATE OF TENNESS EE v . MOHAMED I MAN

Direc t Appeal from the Circ uit Court for Bedf ord County No. 15991 Robert

Crigler , Judge

No. M2007- 00103-CCA -R3-C D - F iled Dece m ber 4, 2008

The a ppellant, Mohamed Iman, pled g uilty in the Be dford County

Circuit Court to possession of a Schedule I

drug with intent to deliver with the sentenc e leng th and manner of ser vice to be de te rm ine d by the tr ia l court

. Pr ior to be ing se nte nc e d, the a pp e lla nt fi le d a mo tio n to wi thd

ra w h is g uilty plea, whic h was de nied by the trial cour

t. After a sentenc ing hear ing, the trial court se ntence d the appe llant to ten y ear s in confinement. On appeal, t he appellant contends that the tria l court er red by (1) r efe rring to the wrongstandard in de ny ing his motion t o wi t h d ra w h i s g uilty plea a nd

acc epting an unknowing plea; (2) acc epting the plea ag ree ment when it f ailed to e stablish ve nue for the cr ime; (3) not per sonally and dire ctly

addre ssing the a

ppellant during the g uilty

plea hearing ; (4) ref using to giv e the a

ppellant a c ommunity

corr ections sentenc e; and ( 5) fa iling to ce rtify the int e rp re te r. Up on

re vie w, we a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uitCo ur t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the cour t, in which J ER R Y L. S MI TH and R O BERT W. W EDEMEYER , J J ., joined.

J efr e S. Goldtrap, Na shville, Tennessee
, and Andre w J ackson Dea ring
, Shelby

ville, T ennesse e, for the appe llant, Mohamed I man.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l a nd Re po rt e r; Ma rk A. F olk s, As sis tant A tto rn e y Ge ne ra l; Charles F ra n k C ra wf

o rd, Jr., District Attorney Gene ral; Michae l D. Randles and Ann L . Filer
, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.
OP IN ION

I. F ac tu al B ac kgr ound

On Octobe r 12, 2006, the appellant pled guilty to the offense throug h an interpr eter . At the plea he aring , the State re cited the f ollowing f

acts unde rlying the appellant’ s conviction:-2- On September

4, 2005, a deputy

with t h e s heriff

’s depa rtment

o b s er v ed a vehic le trave ling on Hig hway 231. The ve hicle wa s swervingin and out of [ i t s ] lane of traff ic. The de puty

passed the vehicle. T he vehic le ac tually swerve d towards the de puty ’s vehicle

. The deputy stopped the vehic le. The dr iver wa s Mr. I man. He stated he had a driver’ s license, but did not have it [in] his possession.

Th e de pu ty

no tic e d M r. I man c he wi ng a g re e n p lant m a te ri a l. . . . The de puty

asked f or per mission t o sear ch Mr. I man’s vehic le. Mr. I ma n r e p li e d
, y e s , g o a h e a d a n d s e a r c h

. T h e d e p u ty f o und a whi te p la s ti c b a g c o n ta in in g a g r e e n p la n t ma te r ia l u n d e r the front pa sse ng e r s e a t.

The de puty

sear ched the trunk. The de puty found 16 cle ar pla sti c ba g s c on ta ini ngthe same g re e n p lant m a terial. Th e de pu ty

se ize d th is g re e n p lant m a te ri a l and a rr e ste d th e de fe nd a nt.

The g ree n plant materia l was sent to the Te nnessee Bur eau of I nvestig ations Crime L aboratory . The mate rial tested posit ive for

c a thi no ne . T he str e e t na me fo r t hat dr ug is K hat, sp e lle d K -h -a -t

. Khat is a Sche dule I

drug . And the total weig ht of t he g ree n materia l was 2.4 pounds.
Although the appellant ha d been c harg ed with possession of a Schedule I drug with intent to sell and possession of a Sche dule I drug with intent to deliver, the appe llant pled g uilty only to the latter of fe ns e . Su bs e qu e ntl y , th e a

pp e lla nt f ile d a motio n to with dr a w his g uil ty ple a , cla imi ng that “ his limit ed command of the Eng lish languag e, coupled with his limit ed understanding of laws and proce dure, c oupled w i t h his lim ited ability to contact his family , community and outside re tained counsel made for a

plea that is now ripe for withdra wal.”
At the motion hearing , the appellant, a native of Somalia, te stified throug h an interpre ter that h e h adb ee n l i v i n g i n t h e Un i t edS t at es fo r m o re t h an t wo y ea rs an d h adt ak en s o m e E n gl i s h l an gu age
c la sse s b e fo re c omi ngto t his c ountr

y . A ft e r t

he appe lla

nt’ s arr e st, c ouns e l f

ro m th e pu

bli c de fe nd er’s of

fi c e wa s a pp oin te d to re pr e se nt h im, and the a pp e lla nt m e t w ithc ouns e l on e tim e to discuss his case

. The appellant was unaware that Khat was a S chedule I drug . On Sunday , October 1 1 , 2 0 0 6 , t h e a

p p e l l a n t t a l k e d w i t h a

“ p a i d l a w ye r

. ” A h e a r i n g h a d

b e e n s c h e d

u l e d f o r t h e n e x td a y, and the a ppellant thoug ht he was “g oing to talk to the DA and make some kind of ag ree ment” at the he ari ng . Ins te a d, a

g uil ty ple a he a ri ngoc c ur

re d, and the a

pp e lla nt ple d guil ty . H e state d th a t he did not ask for a

conti n u an ce o n October 12 bec ause “ this sit uation was g oing ve ry fast so I did not reque st it. I did not understand.” He said he answe red the trial court’ s questions at the plea he aring “just like they

would expect it of m e” and t hat he was rushed into making a dec ision about his plea. The a ppellant said that he did not understand he wa s pleading g uilty to ever y thing the State a lleg ed and that he ple d g uilty beca use he “did not unde rstand any of the things that wer e g oing on.” The-3-

a pp e lla nt u nd e rs too d th a t he wa s pr e su me d inn oc e nt. Ho we ve r, he did no t un de rs tand that he c ou ld hav e g o n e to tr ia l a n d th a t h e g a v e u p h is r ig h t to a

p p e a l b y p le a d in g g u il ty

. H e also did not understand that as a re sult of his plea, he c ould be sent to prison. He said he had be en told that he would serve eig ht to ten y ear s on probation.

On c r o s s

- e xam i n a t i o n , t h e a p p e l l a n t t e s t i f

i e d t h a t h e m e t w i t h c o u n s e l f r o m t h e pu bli c defe nder’ s office only

one time outside of cour

t. He went to the publ ic def ender ’s offic e once , but he and c ounsel wer e unable to communicate be cause of t he langua g e barrier

. On the morning of the appellant’ s g uilty

plea he aring , the appe llant met with counsel and an int erpr eter , but the appellant “could n o t gra s p what they wer e talking about.” Counsel tried to talk with the a ppellant, but the appellant “ could not g rasp it.” The appellant tried to expl ain the fa cts of his ca se to counsel, but counsel did not understa

nd him very

well. The a

ppellant ac knowledg ed that counse l went over the Pe tit ion to E nte r a

Ple a of Gu ilty wi th h im a

nd that the int e rp re te r re a d the e nti re fo rm to h im i n h is native langua g e. The appellant told counsel he did not understand some pa rts of the plea

form, but counsel told the appe llant that “those thing s are not relate d to y ou.” The ap p el l an t said he aske d counsel some que stions about the ple a form. Counsel g ave him a br ief e x planation but did not give him a detailed a

nswer. H e ac knowledg ed that he sig ned the plea form b ut said he “did not compre hend what the paper was a bout.” When he signe d the g uilty plea f orm, he did not know he was plea ding g uilty to a crime but thoug ht he was being g iven another appointment for c ourt. The appellant did not know he ha d been c harg ed with possession o f Kh at for r esale and deliver y and thought he was in jail only for c onsuming it.

The a ppellant testified that the tria l court did not explain to him at t he guilty plea he aringthat he did not have to plea d g uilty , and the a ppellant did not r emember the cour t’s telling him that he ha d a ri g ht t o p le a d n ot guil ty

. Whe n a sk e d if the c ourt tol d h im that he ha d a

ri g ht t o a jur y tr ia l, repr esentation by

an attorne y , and an a

ppeal if c onvicted, the appellant s aid, “No, that is not how I understood it.” He said he thought he was g oing to court for trial and did not know the tria l court was g oing to se ntence him for his g uilty plea. How ever , he ac kno wl edg ed that he me t with an investigating of

fice r fr om the Boa

rd of Probation and Parole while in jail and that she told him she

wa s g oin g to p re pa

re a re po rt the tr ia l c ourt

wo uld c on sid e r wh en dec idi nghis se nte nc e . H e a lso

a c kn ow le dg e d th a t in

20 05 , h e wa s a rr e ste d in

Pe nn sylva

nia a nd c ha rg e d w ithpo sse ssi on

of Kh a t. He sa id that although he pled g uilty to the char g e, “It wasn’t me who ha d it.”

The trial c ourt rec alled tha t defe nse counse l spent about two and one -half hour s with the appellant on the mor

ning of the g uilty plea he aring . The trial court said the plea he aringlasted about one hour and “wa s any

thing but r

ushed.” The trial court noted tha t the appellant pa

rticipated in the hear ing a nd “indicate d he under stood what [was happening ] by his questions and his r esponses a nd g o i n g t o t h e f

a c tu a l b a s i s o f

t h e c a s e

. ” T h e t r i a l c o u rts a i d t h e a p p e l l a n th a d

a “ s e l e c t i v e m e m o r

y” and had g iven evasive answe rs at the hear ing on his moti on to withdraw. The trial court noted that the appe llant also had g iven inconsistent answe rs at the motion hearing , and the c ourt did not believe the inconsistencies w ere cause d by a communication problem. The cour t specifica lly

stated that the appellant was not “ cre dible today ” and conclude d that he had pled g uilty knowing ly
, voluntarily , and i n t e l l i g e n t l y.-4-

I mme diate ly

fo llo wi ngthe tr ia l c ourt ’s de nia l of the a pp e ll a n t ’ s m o t i o n

t o w i thd ra w h is guil ty plea, the trial court held the appellant’ s sentenc ing hear ing. At the conclusion of the hear ing, the trial court sente nced the appellant to ten y ear s in confinement.

On appe al, the appe llant raises va rious issues reg ardinghis plea, the trial co u rt’s denia l of his moti on to withdraw his plea, a nd his sentence . The State co n t en d s that the appe al should be dismiss ed bec ause the notice of a ppeal wa s untimely . The trial c ourt sentenc ed the ap p el l an t on November

20, 2006, and “11/20/06” is the date filled in for the “Date of Entry of Judgment” on the judgme nt of conviction for m. Howeve r, no file- stamp is on the form to show when the cler k enter ed the judg ment of convic tion. Pursuant to Rule 4 of the Tenne ssee Rules of A ppellate Proc edure , the appellant wa s require d to file his notice of a ppeal within thirty

day s after

the date of

entry of the judgme nt. He filed his notice of appea l on J anuar y 8, 2007, but without the clerk’s f ile-stamp on the jud g me nt of c on vic tio n, we c a nn ot de te rm ine wh e the r his no tic e of a pp e a l w a s unti me ly . Se e State v. Kirby Stephens, ___ S.W .3d ___, No. M2006-02521-CCA-R3- C D, 2007 WL 2744999, at *8 (Tenn. Crim. App. at Nashville, Sept. 21, 2007) (publication pending) (providing that the thirty -day time period beg ins to run when the judgme nt of conviction was filed by the trial cour

t clerk) . I n any event , T e n n e s s e e Ru le o f A p p e ll a te Pr o c e d

u r e 4 ( a ) p r o v id e s th a t t

h e n o ti c e o f

a p p e a l i s not jurisdictional and that timely filing ma y , there fore , be wa ived in the intere st of justice. On June 25, 2008, the appellant filed a Motion to Acc ept a L ate F iled Notice of Appea l, reque sting that this court

wa ive the tim e ly fi lin g

. We c ho os e to w a ive the tim e ly fi lin g re qu ir e me nt i n th is c a se a nd a dd re ss the a pp e lla nt’ s is su e s.

II. Ana lys is

A. Withdrawal of Unknow ing G uilty Plea

Th e a pp e lla nt c la ims tha

t th e tr ia l c ourt

re fe rr e d to th e inc or

re c t st a nd a rd

wh e n d e nyinghis mot ion to w ith dr a w h is guil ty

ple a . Sp e c if

ic a lly , h e c on te nd s t hat th e tr ia l c ourt imp ro pe rl y deter mined that g ranting his moti on to wi t h d raw was not nec essar y to corre ct manife st injust ice rathe r than de termining that no fair a nd just reason wa

rra nted g ranting the motion. He also argues that the t rial court should have gr anted his motion beca use he pr esente d a fa ir and just rea son, i.e., that he did not plead guilty knowing ly
, for withdrawing his plea. The S tate contends that the trial court re lied on the cor

rec t sta ndard and proper ly denied the motion bec ause it fa iled to find that any fair a nd just reason a llowed withdraw al of the ple a. We agree with the State.

Once enter ed, a g uilty plea c annot be withdra wn as a matter of r ight. State v. Me llon, 118 S.W .3d 340, 345 (Tenn. 2003) . Rule 32(f), T ennesse e Rules of Criminal Procedur e, provides that

a “ g uil ty ple a may be wi thd ra wn be fo re se nte nc e is i mpo sed f or any fa ir and jus t r e a so n; b ut t o
corr ect manif

est injustice, the cour

t after sentenc e, but bef

ore the judgme nt be comes fina l, may set aside the judg ment of conviction and permit the defendant to withdraw his plea.” I n this case, the appellant f

iled the motion to withdraw his guilty plea prior to se ntencing

. There fore
, the standar d he must meet is the less string ent “a n y fa i r and jus t rea son” standar d. “This cour t has listed five fac tors that are usef

u l i n deter

mining whe ther a

defe ndant has ‘a

ny fair a nd just reason’ f

or-5-

withdrawinga plea .” State v. Mar cus E. Robinson, No. M2005-00670-CC A-R3-CD, 2006 Te nn. Crim. App. L EXI S 2 8 6 , at * 1 3 (Na shville, Apr. 5, 2006), pe rm. to appea l denied, (Te nn. 2006). Th os e fa c tor s are a s f

oll ow s:
1. The leng th of time bet ween the entry of the g uilty

plea a nd the fi lin g of the mot ion

to w ith dr a w i t;
2. Why t h e grounds for w ithdrawa l were not presente d to the court

a t an e a rl ie r p oin t in

the pr oc e e din g s;

3. Whether the de fenda

nt ha s asser

ted and maintained his innocence ;

4. The c ircumstances u n d er l y ing the entry of the plea

of g uilty , the nature and bac kg round of the de fenda nt, and whethe r the de fenda nt ha s a dmi tte d g uil t;

5. Once the defe ndant has established a fair a nd just reason, whe ther the prosec ution will be prejudiced should the plea be withdra

wn.

I d. Whether a defe ndant should be allowed to w ithdraw his g uilty plea is a matter left to the sound dis c re tio n o f t

he tr ia l c ourt. State v. Cr ow e , 1 68 S.W. 3d 73 1, 74 0 ( Te nn . 2 00 5) . T his c ourt wi ll uphold a trial cour

t’s decision not to allow a def endant to withdra

w his plea a

bsent an a

buse of discretion. See State v. D avis, 823 S.W .2d 217, 220 (Tenn. Crim. App. 1991)

.
At the conc lusion of the hear ing o n t h e m o tion to withdraw, the trial cour t took judicial

n o t i ce o f t h e gu i l t y

p l ea h ea ri n g t ra n s cr i p t an d n o t ed t h at t h e ap p el l an t p ar t i ci p at ed i n t h e h ea ri n g. The trial court stated t hat t he appellant’s questi ons and re sponses indicated he understood what was happeningwhen he en t er ed h i s plea. The court spec ifically found that the a

ppellant had not bee n
c r e d i b l e a tt h e m o t i o n t o w i t h dr a w h e a r i n g a n d c o n c l u d e d

t h a th e p l e d

g u i l t y kn o w i n g l y, v o l u n t a r i l y, and under standing ly . The following exchang e then oc curr ed:

[THE COURT:] I wi l l give y a’ll a minute to dig est that. . . . I do no t fin d that he is ent it led to wi th draw hi s p lea un der Rul e 32 -F. Do not find any

manifest injustice that nee ds corr ec t i ng . Ifind that h e u n d er s t o o d

wh at h e w as d o i n g.
[ Defe ns e Couns e l:] Yo ur ho no r, re sp e c tiv e ly
, it is no t a manifest injustice. I t is for fair and just reason. Manife st injust ice -

-

THE COURT: After

the sentenc e -- Ifind that there is no -- Ifi nd that th e re is n o r e a so n - - i t w ou ld not wo rk a ny un fa ir or un jus t result to not allow this to st and.T h e S ta te info rm e d the c o u rt tha t i t wo u ld d ism iss c o u n t 1

. 1

-6- The trial c ourt initially

ref err ed to the incorrec t standard, manif est injustice, in denying the appellant’ s motion. However, de fense counsel informed the t rial court of t he correc t standard, a ny fair and just re ason, and the trial court conclude d that the appellant was not e ntitled to re lief under that standard a s well. The tria l court re lied on the cor rec t standard.

We w ill no w d e te rm ine wh e the r t he tr ia l c ourt

pr op e rl y de ni ed th e app e lla

nt’ s mo tio n to withdraw his g uilty

plea. The appellant claimed in his motion to withdraw and claims on appe al that he did not understand w hat he wa s doing w hen he ple d gu i l t y . Howeve r, the g uilty plea he aring transcr ipt shows otherwise. Ac cording to the transcr ipt, the trial court aske d the appe llant if he had signe d the Petition to Ent er Plea of Guilty . The a

ppellant said y es and a cknowledg ed that the int e rp re te r h a d re a d the fo rm to him

. Th e tr ia l c ourt a sk e d th e a

pp e lla nt i f t he int e rp re te r a

nd de fe ns e counsel had g one over the form with him, and the appellant said, “Ver y well, sir.” The trial court also asked the ap p ell ant if there was a ny thing a bout the form he did not under stand or wa nted explained further , and the a ppellant said, “N o, sir.” The trial court then informed the a ppellant that he had the right to plead not g uilty
, the right to a trial by jury
, and the rig ht to be represe nted by an attorney . The trial c ourt asked the appellant if he understood ea ch of those r ights, a nd the appe llant

answe red, “ Yes, sir.” The trial c ourt also informed the appellant of various other

rig hts, including that he had the rig ht to be prese nt at his trial and that he c ould not be forc ed to testify ag ainst himself. Periodically , the appe llant asked the tria l court to re p ea t a stateme nt, and the trial c ourt explained the ri g ht to the a

pp e lla nt a g a in. Whe n th e tr ia l c ourt a sk e d th e a

pp e lla nt i f h e wa s g uil ty

of c ounts

one and two in the indictment, the appellant said he wa s not guilty of possessing the drugwith intent to sell. Howeve r, he sa id, throug h his attorney , that he “wa s on his w ay to B edfor d County with the intent to deliver [the drug ] t o someone e lse.”

The trial c ourt stated that it was only g oing to acc ept t he appellant’s plea w ith reg ard to c ount two, possession with intent to deliver. The c ourt asked the appe l lant if he ha d been pr omised 1 any thing in re turn for his plea , and the appellant said no. The trial court infor med the appe llant that he would not have a trial but would have a sentenc ing hear ing, and the a ppellant said he unde rstood. Th e tr ia l c ourt

a lso a sk e d th e a

pp e lla nt if he had a ny

dif fi c ult y c omm un ic a tin g wi th t

he pu bli c defe nder’ s off

i ce , an d the appe llant said no. The trial c ourt ac cepte d the appe llant’s plea a nd schedule d a sente ncing hear ing. I n light of the g uilty plea he aringtranscr ipt, we believe the appe llant ple d g uil ty

kn ow ing
, int e lli g e ntl y a nd vo lun tari ly

. Hi c ks v. Sta te , 9 83 S.W. 2d 24 0, 24 6 ( Te nn . Cr im. Ap p. 19 98 ) ( c iti ng B oy

kin v. Al a bama , 3 95 U. S. 2 38 , 2 44 , 8 9 S. Ct. 17 09 , 1 71 3 ( 19 69 )) ; se e a lso State v. Macke y , 553 S.W .2d 337, 341 (Tenn. 1977)

.
Fur thermore , consideration of the five f actor s also supports the tri al co u rt ’s failing to find

“ a ny fa ir a n d j u s tr e a s o n ” f

o r w i t h dr a w i n g t h e a

p p e l l a n t ’ s p l e a

. T h e a

p p e l l a n tf i l e d t h e m o t i o nto withdraw on N ovember

14, 2006, over one month after his g uilty plea he aring
, and he ha s offe red

no re a so n f

or wh y the mot ion

wa s n ot p re se nte d to the tr ia l c ourt e a rl ie r. Th e a

pp e lla nt r e a dil y admitted at the hea

ring that he wa s g uilty

of possessing Khat with intent to deliver. The circ umstances unde rly ing the entry of t he plea also weig h ag ainst g ranting his moti on to withdraw.-7-

The ap p e ll a n t f

a c e d th e p o s s ib il it

y o f b e in g c o n v ic te d o f tw o o f f e n s e s a n d r e c e iv in g a long er sentenc e. While a defe ndant’s lack of experience with the leg al sy stem and the Eng lish langua g e ca n be a cause for conce rn, the appellant in this case answe red y es and no at the appropr iate times and

ne ve r i nd ic a te d at th e ple a he a ri ngthat he ha d a

ny tr ou ble un de rs tand inghis int e rp re te r o r h is attorney . We conclude t h at t h e ap pellant fa iled to provide any fair a nd just reason why

his plea should be withdrawn. Th er ef o re, the fifth fac tor is of no conc ern, a nd we c onclude that the tr ial court did not err

by denying the appellant’ s motion t o withdraw his g uilty plea.

B. V enue

The a ppellant contends that the trial court e rre d by acc epting his plea bec ause the State failed to esta b li s h v e n u e f

o r th e c r im e w h e n it g a v e a f a c tu a l b a s is f

o r th e p le a a t th e p le a h e a r ing . The State argues that the appellant has waived this issue. We ag ree with the State. When a def endant pleads guilty , he wa ives his rig ht to c halleng e venue. Ellis v. Carlton, 986 S.W.2d 600, 602 (Tenn. Cri m

. Ap p

. 1 9 9 8 ); Recor v. State, 489 S.W .2d 64, 69 (Tenn. Crim. App. 1972) . There fore , the appellant is not entitled to relief

.
C. Trial Court’s Addre ssing the A ppellant Duringthe Plea He aring

Ne xt, th e a

pp e lla nt c on te nds th at the tr ia l c ourt c omm itt e d r e ve rs ibl e e rr or by fa ili ngto addre ss him persona lly and direc tly during the g uilty plea hear ing. Rule 11(b)( 1), Tenne ssee Rules of Criminal Procedur e, provide s that befor e a tr ial court acc epts a defe ndant’s g uilty plea, the c ourt “shall addr ess the def

endant pe rsonally

in ope n court and inform the defe ndant of, and deter mine that he or she understands” the conse quence s of the g uilty plea a n d d et er m i n e whether

the def endant understands those c onsequenc es. Our r eview of the g uilty plea hearingtranscr ipt confirms that the trial court thoroug hly

addre ssed the defenda

nt persona lly , albeit throug h an interpr eter , in open cour t

a bo ut h is p le a . T he tr ia l c ourt inf or me d the a pp e lla nt of his ri g hts , a sk e d h im i f h e un de rs too d h is rig hts, a nd car efully explained a particula r rig ht w hen the appellant indicated he did not unde rstand. The a ppellant is not entitled to relief.

D. Communit y

Correc tions

The appellant contends that the trial court err ed by ref using to g ive him a sentenc e alter native to c on fi ne me nt, sp e c if

ic a lly c omm

un ity c or re c tio ns

. Th e Sta te c on te nd s that the tr ia l c ourt pr op e rl y denied a lternative se ntencing . We ag ree with the State.

A t t h e a p p e ll a n t’ s s e n te n c in g h e a r in g , th e a p p e ll a n t t e s ti f

ie d th a t h e d id

n o t o f f e r a ny resistanc e duringhis arre st and that he wa s cooper ative with the investig ating office r who pre pare d his presente nce r eport. He acknow ledg ed that he had almost g raduated from high school and that he pla nn e d to c on tin

ue his e du c a tio n. He state d th a t his h e a lthwa s “ [v]e ry we ll” a nd

that hi s mo st

rec ent employ

ment was for

an oxy g en supply

company

. The appellant acknow ledg ed that his entire family was from Somalia, that K hat was leg al there
, and that he share d the drug with h i s fr iends wh e n th e y

c a m e t o h i s h o u s e

. T h e a p p e l l a n t s t a t e d t h a t h e n o w kn e w K h a t w a s i l l e g a l i n th is-8-

c ountr y . H e state d that he cou ld sto p u sin g the dr ugand that he wo uld

a tte nd c la sse s to he lp h im sto p u sin g it i f t

he tr ia l c ourt so or de re d. He a lso state d h e wo uld su bmi t to dr ugte sti ng . O n c ro sse xami na tio n, the a pp e lla nt a c kn ow le dg e d that in a dd iti on to h is a rr e st o n Se pte mbe r 4 , 2 00 5, he a lso

was a rre sted for posse ssing Khat in Dece mber 2005.

The State introduce d the appe llant’s p re s en t en ce report into evidenc e. Ac cordingto the

re po rt , th e the n tw e nty -f our-y ear- old

a pp e lla nt w a s si ng le a nd

c omp le te d th e e le ve nth

g ra de in Nairobi, Ke ny a. He stated i n the report that he was in good phy sical and me ntal health but that he had bee n using K

hat since he was thirtee n y ear s old. I n the report, the appellant said he had w orked for a n ox y g en supply

company in Portland, Ore g on and for a Nissan plant in Te nnessee . The re port did not show any prior convictions. Howeve r, t he appellant stated in the re port that he wa s arr ested

on Dec ember 21, 2005, in Clar ion, Pennsy lvania, and was char g ed with posse ssion of Khat. He pled g uilty to the offe nse and w as plac ed on one y ear of unsuper

vised probation.

The trial c ourt noted that this crime involved a Sche dule I drug , the “most serious” ty pe of drug , and that the amount of the drug the appellant possessed was “fa irly substantial.” The trial c ourt applied enha

nceme nt fac tor (1), that the appellant has a “pre vious history

of cr iminal convictions or criminal beha

vior, in addition to those necessa ry to establish the appropriate r ang e,” to his sentenc e based upon the appellant’ s prior conviction in Pennsy lvania and his prior illeg al use of K hat in the U n i t e d S t a t e s

. T e n n

. C o d e A n n

. § 4 0

- 3 5

- 1 1 4 ( 1 )

. T h e t r i a l c o u rt a p p l i e d n o m i t i g a t i n g f

a c t o r s

. It noted that the appellant was a Rang e I , standard offende r facing a sentence of eig ht to twelve y ear s for a Class B felony and sentenced him to ten y ear s. See Tenn. Code Ann. § 40-35-112( a)( 2). The trial court a lso noted that the appe llant was not elig ible for pr obation under T en nessee Code Annotated se ction 40-35-303 but possibly was elig ible for a community corr ections sentenc e. See Tenn. Code Ann § 40-35-303 (providing that a def endant is not elig ible for pr obation if convicte d of violating Tenn. Code Ann. § 40-35-417( b), possession of a Schedule I drug with intent to deliver). I t c o n c lu d e d

th a t b a s e d

o n th e e v id e n c e p r e s e n te d a t t h e g u il ty p le a a n d s e n te n c in g h e a r in g s , the pr e se nte nc e re po rt , the pr inc ipl e s of s e nte nc ing , th e a rgume nts ma de a s to se nte nc inga lte rn a tiv e s, the nature and cha

rac teristics of the c riminal conduct, a nd the appe llant’s potential for r ehabilitation, it was denying the appellant’ s reque st for a n alternative sentenc e in orde r to avoid depr eciating the seriousness of the offe nse.

A p p e ll a te r e v ie w o f

th e le n g th
, r a n g e o r

ma n n e r o f s e r v ic e o f a s e n te n c e is d e n o v o

. See Ten n

. C o d e An n. § 40-35-401( d). I n conducting its de novo review , this court considers the fol l o wi ng fac tors: (1) the e vidence , if any , rec eived at the trial and the se ntencing hear ing; ( 2) the prese ntence repor

t; (3) the princ iples of sentenc ing a nd arguments as to sentenc ing a lternatives; (4) the nature and chara cter istics of the c riminal conduct involved; (5) evidenc e and inf ormation offe red by the par ties on enhanc ement and mitigating fac tors; (6) any statement by the appe llant in his own behalf ; and (7) the potential for r ehabilitation or treat m en t

. S ee T enn. Code Ann. §§ 40- 35-102, -103, -2 1 0 (2003); see also State v. Ashby , 823 S.W .2d 166, 168 (Tenn. 1991) . The burde n is on the appe llant to demonstrate th e i m p ro priety of his sentenc e. See T enn. Code Ann. § 40- 35-401, Se nte nc ingCom mis sio n Co mme nts . M or e ov e r, if the re c or d r e ve a ls that th e tr ia l c ourt a de qu a te ly-9-

considere d sentenc ing pr inciples and a ll releva nt fac ts and circ umstances, this c ourt will a ccor d the trial court’ s determinations a pr esumption of corr ectne ss. I d. at (d); Ashby , 823 S.W .2d at 169.

We re c og nize that an ap pe lla nt is eli g ibl e fo r al te rn a tiv e se nte nc ing if the se nte nc e a c tua lly imposed is ten y ear s or less. See Te nn. Code Ann. § 40-35-303( a) (2006). Moreove r, an a ppellant who is an espe cially

mitigated or

standard of

fende r convic ted of a

Class C, D, or E fe lony

should be considered a ca n d i d ate f

or alter native sente ncing . See Te nn. Code Ann. § 40-35- 102(6). In the ins tant c a se , th e a

pp e lla nt p le d guil ty

to a Cla ss B fe lony ; th e re fo re , h e is no t c on sid e re d a fa vo ra ble candidate for a lternative sentenc ing. Neve rtheless, beca use the sentenc e imposed was ten y ear s or l es s , h e i s s t i l l el i gi b l e f

o r a l t ern at i v e s en t en ci n g.
The Community

Correc tions Act of 1985 was e nacte d to provide an a lternativ e means of punis hme nt f

or “ se le c te d, no nv iol e nt f

e lony of fe nd e rs in fr on t- e nd c omm un ity ba se d a lte rn a tiv e s to incar cer ation.” Te nn. Code Ann. § 40-36-1 0 3 (1). Te nnessee Code Annotated se ction 40-36-106( a)( 1) provides that an offe nder w ho meets all of the f ollowing minimum criteria sha ll be

c on sid e re d e lig ibl e fo r c omm un ity c or re c tio ns :
(A) Per sons who, without this option, would be incar cer ated in a

corr ectional institution;
(B ) Persons who a

re c onvicted of pr operty -re lated, or dr ug -or alcohol-r elated f

elony offe nses or other felony

offe nses not involving

c rimes ag a ins t th e pe rs on a s p ro vid e d in

tit le 39 , c ha

pte r 1 3, pa

rt s 1-5;
(C ) P e rs on s w ho a re c on vic te d o f n on vio le nt f e lony of fe ns e s;
(D) Per sons who are convicted of fe lony offe nses in which the use or possession of a we apon wa s not involved;
(E) Per sons who do not demonstrate a prese nt or p as t p att ern of behavior indicating violence;
(F ) Persons who do not demonstrate a pattern of committing violent of fe ns e s.

An offe nder is not automatically entitled to c ommunity corr ections upon meeting the m inimum require ments for e ligibility . State v. Ba ll, 973 S.W .2d 288, 294 (Tenn. Crim. App. 1998)

.
For offe nders not e ligible for community corr ections under

subsection (a ), Tenne ssee Code An n o t at ed section 40-36- 106(c) cre ates a “spec ial needs” cate g ory of elig ibilit y . Subsection (c) provides that-10- [f] elony offe nders not o t h erw ise elig ible under subse ction (a) , and who would be usually considere d unfit for probation due to histories of c hr on ic a lc oh ol, dr

ug a bu se , o r m e nta l he a lthpr ob le ms, bu t w ho se sp e c ia l ne e ds a re tr e a ta

ble a nd c ou ld b e se rv e d b e st i n th e c omm un ity rathe r t han in a correc tional instit ution, may be conside red e ligible f

or punishment in the community under the provi s i o n s o f this chapter

. Tenn. Code Ann. § 40- 36-106(c ).
When determining a def

endant’ s su it a

b il it y f o r a lternative se ntencing , courts should consider whether the following sentenc in g considerations, set forth in Tennesse e Code Annotated sec tion 40-35-103( 1), ar e applica ble:
(A ) C o n fi n em en ti s n ec es s ary t o p ro t ec ts o ci et y

b y re s t ra i n i n g a de fe nd a nt w ho ha s a

lon g his tor

y of c ri min a l c on du c t;
(B ) Confinement is nec essar y to avoid depre ciating the seriousne ss of the offe nse or confine ment is pa rticularly suited to pr ovi d e an eff ective de terre nce to other s likely to commit si milar offe nses; or
(C) Mea sures les s re s trictive than c onfinement have fr equently or
re c e ntl y be e n a pp lie d uns uc c e ssf

ull y to t he de fe nd a nt.
Additionally , “[t] he potential or la ck of potential for the r ehabilitation or trea tment of the def

endant shou ld b e c o n s id e r e d

in d e te r mi n in g th e s e n te n c e a lt e r n a ti v e o r le n g th o f a te r m t o b e im

p o s e d .” Tenn. Code Ann. § 40- 35-103(5)

. A defe ndant with a long history of cr iminal conduct and “ evincing failure of past ef

forts at re habilitation” is presumed unsuitable f or alter native sente ncing . Tenn. Code Ann. § 40-35- 102(5).

On appe al, the appe llant contends that alth o u gh he has no history of mental he alth or substance a

buse issues, “his lack of

history with the criminal justice sy stem coupled with his limit ed edu c a ti o n a n d u n derstandingof the Eng lish langua g e and A merica n culture w ould lead any

trial court to c onsider him to be a ‘ specia l needs’ c andidate f or Community

Correc tions.” Howeve r, we believe the rec ord supports the trial court’s denial of a community corr ections sentenc e. The trial co u rt denied the appe llant’s reque st for alter native sente ncing based upon the amount of the druginvolved

and the a pp e lla nt’ s p ri or us e of the dr ug . T he tr ia l c ourt

a lso fo un d th a t c on fi ne me nt w a s n e e de d in order to avoid depre ciating the seriousne ss of the off ense. H oweve r, the fa cts of this case did not

war rant such a

finding . See State v. Z eolia, 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996) (stating that in denying f

ull pr obation to a

void de prec iating the seriousness of the offe nse, the c riminal act should be espec ially

violent, horrifying, s h o cking , repr ehensible, of fensive, or

otherwise of

an
ex ce s s i v e o r ex ag g erated deg ree ). I n any event, g iven the lar g e amount of the drug involved, the

a pp e lla nt’ s p ri or dr ugus e , f or wh ic h h e ha s n e ve r s ou g ht r e ha bil itatio n, a nd

his be inga rr e sted

in-11-

Pennsy lvania for

possession of Khat only three months after his ar rest in t h e present ca se, we
co n cl u d e t h at t h e t ri al co u rt p ro p er l y d en i edh i s re q

u es tfo r a l t ern at i v e s en t en ci n g.

E. I nterpre ter

F ina lly , th e a

pp e lla nt c on te nd s th a t th e tr ia l c ourt e rr e d b y fa il in g t o ce rt if

y the Som a li langua g e int e rp re te r. Th e State a rgue s th a t th e a pp e lla nt h a s w a ive d th is i ssu e be c a us e he fa ile d to ob je c t in the tr ia l c ourt

. We a g re e wi th t he State . T he re c or d r e fl e c ts that th e a pp e lla nt f a ile d to ra ise any objection to the interpre ter at the g uilty plea he aring , the hea

ring on the motion to withdraw , or the sentenc ing he aring . There fore , he has w aived this issue. See Te nn. R. App. P. 36(a); State v. Devin B anks, ___ S.W.3d ___, No. W 2005- 0 2 2 1 3

- SC -DDT- DD, 2008 WL4823068, at *___ (Te nn. at J ackson, Nov. 7, 2008). More over, w e disce rn no plain er ror. I d. at *___ (holding that defe ndant was not entitled to plain err or re lief whe n the re cord did n o t i n d i ca t e that a c ertified or reg istered interpre ter wa s rea dily available or t hat t he int erpr eter ’s translation under mined the fa irness of the proce eding ).

III. Conclusi on

B a se d u po n th e re c or d a

nd the pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

.

__________________________________ NORMA McGEE OGL E, J UDGE