State v. Ben Ray ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 1999 SESSION October 25, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # 02C01-9901-CC-00021
Appellee, * HENRY COUNTY
VS. * Honorable Julian P. Guinn, Judge
BEN PHILLIP RAY, * (Possession of Drugs, Etc.)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
(On Appeal) PAUL G. SUMMERS
Attorney General & Reporter
W. JEFFERY FAGAN
Assistant District Public Defender PETER M. COUGHLAN
117 Forrest Avenue North Assistant Attorney General
Camden, TN 38320 425 Fifth Avenue North
Nashville, TN 37243
GUY T. WILKINSON
District Public Defender ROBERT ‘GUS’ RADFORD
District Attorney General
STEVEN L. GARRETT
Assistant District Attorney General
P.O. Box 94
Paris, TN 38242
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
In this unusual appeal from Henry County, the defendant, Ben Phillip Ray,
claims he should have received more jail time than he was actually given by the
trial judge. The defendant wants to serve his time in the state penitentiary
instead of in the Henry County jail. After review of the record, we conclude that
the wishes of this defendant should not be granted. A defendant does not have
the right to refuse a minimum sentence. Therefore, the trial court’s sentence is
AFFIRMED, and we decline the defendant’s opportunity to sentence him to a
greater sentence.
BACKGROUND
On April 9, 1997, the defendant was convicted in Henry County Circuit
Court of possession of Schedule II Drugs, cocaine. He was sentenced to three
years in the Department of Correction with all time suspended except one year.
While serving his one year in the Henry County jail, the defendant was
charged with the offenses related to this appeal.
The defendant pled guilty on December 8, 1998, to one count of
Introduction or possession of drugs in a penal institution and to a second count
of possession of drug paraphernalia. At the sentencing hearing, the defendant’s
retained counsel questioned the defendant concerning where he would like to
spend his time:
Defendant: I would rather spend it down in the penal institution.
Counsel: In the penitentiary rather than the Henry County jail?
Defendant: Yes, ma’am.
Counsel: Even if that means that you would get more time?
Defendant: Yes, ma’am.
Counsel: Okay; why?
Defendant: Because I look to better myself any way -- any way
I can, and being down there in the Henry County Jail
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there’s no way too much to better yourself. There’s
nothing to do but lay around. You can’t -- you don’t
get your recreation time or nothing. And I’d rather
better myself if I can.
Counsel: You had spent a year in the Henry County Jail. Is
that correct?
Defendant: Yes, ma’am.
In summation, the defendant’s retained counsel requested the court to
sentence her client to more than the minimum sentence so he could go to the
penitentiary. The trial judge was very skeptical of the defendant’s reasoning and
motives for requesting an enhanced sentence. The trial judge sentenced the
defendant to the minimum three years on the first count and eleven months,
twenty-nine days on the second count, to run concurrently with each other. The
sentence is to be served in split confinement, with one year of continuous
confinement in the Henry County jail and the remaining balance on supervised
probation.
The defendant then requested the trial judge to reconsider the sentence,
and another hearing was held. At this hearing, the defendant’s counsel again
insisted that the defendant wanted to take advantage of programs offered in the
penitentiary and unavailable in the Henry County Jail. Specifically, the defendant
wanted more opportunities to exercise and lift weights. The trial judge overruled
the defendant’s motion to reconsider his sentence.
ANALYSIS
This Court’s review of the sentence imposed by the trial court is de novo
with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This
presumption is conditioned upon an affirmative showing in the record that the
trial judge considered the sentencing principles and all relevant facts and
circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the
trial court fails to comply with the statutory directives, there is no presumption of
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correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96
(Tenn. 1997).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) sentencing comm’n comments. In
conducting our review, we are required, pursuant to Tennessee Code Annotated
§ 40-35-210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing
hearing;
(2) [t]he presentence report;
(3) [t]he principles of sentencing and arguments as to sentencing
alternatives;
(4) [t]he nature and characteristics of the criminal conduct involved;
(5) [e]vidence and information offered by the parties on the
enhancement and mitigating factors in §§ 40-35-113 and 40-35-
114; and
(6) [a]ny statement the defendant wishes to make in the
defendant’s own behalf about sentencing.
If no mitigating or enhancement factors for sentencing are present,
Tennessee Code Annotated § 40-35-210(c) provides that the presumptive
sentence shall be the minimum sentence within the applicable range. See State
v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d
785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court
should start at the minimum sentence, enhance the minimum sentence within
the range for enhancement factors and then reduce the sentence within the
range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular
weight for each factor is prescribed by the statute, as the weight given to each
factor is left to the discretion of the trial court if the trial court complies with the
purposes and principles of the sentencing act and, if its findings are supported
by the record. See State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v.
Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago, 914
S.W.2d 116, 125 (Tenn. Crim. App. 1995); Tenn. Code Ann. § 40-35-210
sentencing comm’n comments. Nevertheless, should there be no mitigating
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factors but enhancement factors are present, a trial court may set the sentence
above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); see
Lavender, 967 S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn.
Crim. App. 1994).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after giving due consideration and proper
weight to the factors and principles set out under sentencing law, and if the trial
court’s findings of fact are adequately supported by the record, then we may not
modify the sentence even if we would have preferred a different result. See
Fletcher, 805 S.W.2d at 789.
We conclude that the trial judge properly sentenced the defendant. The
defendant has not cited to any legal authority to the contrary. However, this
Court has ruled that a defendant did not have the right to refuse a sentence of
Community Correction even though he did not request such a sentence. See
State v. Estep, 854 S.W.2d 124, 127 (Tenn. Crim. App. 1992).
CONCLUSION
We conclude that this defendant does not have the right to reject the
minimum sentence he received. We AFFIRM the sentence of the trial court.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
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_______________________________
JAMES CURWOOD WITT, JR., Judge
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