State v. Phenix Ross ( 2010 )


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  •              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    JANUARY SESSION, 1999
    FILED
    STATE OF TENNESSEE,          )                                 February 3, 1999
    )    No. 02C01-9808-CC-00246
    Appellee               )                                Cecil Crowson, Jr.
    )    CHESTER COUNTY               Appellate C ourt Clerk
    vs.                          )
    )    Hon. John Franklin Murchison, Judge
    PHENIX H. ROSS,              )
    )    (Possession of Marijuana)
    Appellant              )
    For the Appellant:                For the Appellee:
    C. Michael Robbins                John Knox Walkup
    46 North Third Street             Attorney General and Reporter
    Suite 719
    Memphis, TN 38103                 Elizabeth T. Ryan
    Assistant Attorney General
    (ON APPEAL)                       Criminal Justice Division
    425 Fifth Avenue North
    George Morton Googe               2d Floor, Cordell Hull Building
    District Public Defender          Nashville, TN 37243-0493
    Michael Rasnake
    Asst. Public Defender
    227 West Baltimore Street         James G. (Jerry) Woodall
    Jackson, TN 38301                 District Attorney General
    (AT TRIAL)                        Nick Nicola
    Asst. District Attorney General
    P. O. Box 2825
    Jackson, TN 38302-2825
    OPINION FILED:
    AFFIRMED
    David G. Hayes
    Judge
    OPINION
    The appellant, Phenix H. Ross, 1 was found guilty by a Chester County jury of
    possession of marijuana, a class A misdemeanor. At a subsequent sentencing
    hearing, the trial court imposed a sentence of eleven months and twenty nine days,
    suspending all but one hundred and twenty days with the balance of the sentence to
    be served on supervised probation. The appellant now appeals the sentencing
    decision of the trial court.
    After review of the record, we affirm.
    Background
    On February 11, 1997, at approximately 9:50 p.m., Henderson Police Officer
    Ronnie Faulkner was called to a local Bull Market convenience store. The clerk at
    the store directed the officer’s attention to the appellant who at the time was in his
    vehicle on the parking lot with the engine running. As the car door opened, Officer
    Faulkner detected a strong odor of alcohol. Faulkner requested that the appellant
    perform a field sobriety test, which the appellant was unable to successfully execute.
    The appellant was then arrested for driving under the influence and Faulkner
    conducted a pat down search of his person. The pat-down resulted in the discovery
    of a pack of rolling papers in the appellant’s front pocket. The appellant was placed
    in the patrol car, and Officer Faulkner, now accompanied by Chester County Deputy
    Weaver, conducted a search of the appellant’s vehicle. Faulkner discovered a white
    plastic bag on the floorboard of the passenger’s side of the appellant’s car. The bag
    contained, what was later confirmed to be, 1.7 grams of marijuana. The appellant
    1
    The indictment reflects that the appellant’s middle initial is “H.” The testimony developed
    at the appellant’s trial indicates that the appellant’s middle name is Neshano.
    2
    was transported to the county jail where he refused to take a breathalyser test.2 He
    was subsequently indicted for driving under the influence and possession of
    marijuana. A jury found the appellant not guilty of the DUI charge but guilty as to the
    possession charge.
    At the sentencing hearing, the State relied upon proof of the appellant’s two
    prior DUI convictions. The appellant’s proof consisted of three character witnesses:
    his minister, his wife, and his employer. The appellant’s minister testified that the
    appellant occasionally attended church and worked for the church. The appellant’s
    wife stated that she and the appellant had three children and that “he works every
    day.” Finally, the appellant’s employer testified that the appellant had a “good
    attendance record. He’s there on time. He is multi talented, versatile -- I depend on
    him every day.”
    The trial court’s findings are noted as follows:
    I think an appropriate sentence in this case would be imprisonment for
    11 months and 29 days and a $500 fine. He has got to serve some jail
    time because he has two prior very super serious misdemeanors, and
    those being driving under the influence of an intoxicant, and, of course,
    in this case he did possess marijuana -- and he did possess rolling
    papers. I am not counting that as an enhancement or anything, and
    he wasn’t convicted of that. He did have it. I think an appropriate jail
    period would be 120 days.
    Accordingly, the defendant is sentenced to a period of imprisonment of
    11 months and 29 days, all suspended but 120 days, which he must
    serve. He can serve that on work release, if he can qualify with the
    Sheriff.
    Analysis
    Again, the appellant alleges that the trial court’s imposition of 120 days
    incarceration is excessive. Specifically, the appellant complains that the trial court
    2
    The appellant’s refusal ultimately resulted in his driving privileges being suspended for a
    period of six months pursuant to 
    Tenn. Code Ann. § 55-10-406
    .
    3
    failed to consider his lack of criminal history, his stable employment, and his
    responsibilities as provider for his family in determining an appropriate sentence. In
    addressing the appellant’s challenge, we are mindful that our de novo review is
    conditioned with the presumption that the sentencing determination of the trial court
    is correct. See 
    Tenn. Code Ann. § 40-35-401
    (d) (1997). Moreover, the appellant
    bears the burden of establishing that the sentence imposed by the trial court is
    improper. Sentencing Commission Comments, 
    Tenn. Code Ann. § 40-35-401
    (d).
    The misdemeanor offender must be sentenced to an authorized determinant
    sentence with a percentage of that sentence designated for eligibility for
    rehabilitative programs. See State v. Hailey, No. 02C01-9705-CR-00198 (Tenn.
    Crim. App. at Jackson, May 14, 1998); see also 
    Tenn. Code Ann. § 40-35-302
    (1997). Notwithstanding this limitation, the court can grant probation immediately or
    after a period of split or continuous confinement. See 
    Tenn. Code Ann. § 40-35
    -
    302(e). The governing statute is designed to provide the trial court with continuing
    jurisdiction in misdemeanor cases and a wide latitude of flexibility. See Troutman,
    979 S.W.2d at 273.
    In determining the appropriate term of confinement, the trial court should
    consider that the misdemeanant, unlike the felon, is not entitled to the presumption
    of a minimum sentence, State v. Creasy, 
    885 S.W.2d 829
    , 832 (Tenn. Crim., App.
    1994), and that the burden of establishing suitability for probation rests with the
    defendant. 
    Tenn. Code Ann. § 40-35-303
    (b). With these considerations, the trial
    court should examine the misdemeanor offense in the light and character of the
    circumstances of the offense as well as under the mandated sentencing principles.
    State v. Brannon, No. 03C01-9508-CR-00233 (Tenn. Crim. App. at Knoxville, Apr. 3,
    1996), perm. to appeal denied, (Tenn. Nov. 4, 1996)).
    In the present case, the appellant was convicted of a class A misdemeanor.
    4
    The penalty for a Class A misdemeanor is a term of imprisonment “not greater than
    eleven months, twenty nine days.” See 
    Tenn. Code Ann. § 40-35-111
    (e)(1). In
    sentencing the appellant, the trial court relied heavily upon the seriousness of the
    appellant’s prior convictions for driving under the influence. The fact that the
    appellant occasionally attended church, was a good employee, and provided for his
    family do not outweigh the appellant’s prior criminal history and obvious failed
    attempts at rehabilitation. Certainly, the trial court’s imposition of a sentence of one
    hundred and twenty days confinement was consistent with the principles, purposes
    and goals of the Sentencing Act and was not an abuse of the court’s discretion. The
    appellant’s challenge is without merit.
    The judgment of the trial court is affirmed.
    ____________________________________
    DAVID G. HAYES, Judge
    CONCUR:
    __________________________________
    JOE G. RILEY, Judge
    __________________________________
    JOHN EVERETT W ILLIAMS, Judge
    5
    

Document Info

Docket Number: 02C01-9808-CC-00246

Filed Date: 12/1/2010

Precedential Status: Precedential

Modified Date: 4/17/2021