State of Tennessee v. James Gooch, a/k/a \"Angie Foot\" ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
July 1, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9703-CR-00093
)
) Sumner County
v. )
) Honorable Jane Wheatcraft, Judge
)
JAMES ALLEN GOOCH, SR., ) (Sale of less than one-half gram of
a/k/a “Angie Foot” ) cocaine)
)
Appellant. )
For the Appellant: For the Appellee:
Mark W. Henderson John Knox Walkup
1719 West End Avenue Attorney General of Tennessee
Suite 600-E and
Nashville, TN 37203 Georgia Blythe Felner
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Lawrence Ray Whitley
District Attorney General
and
Dee Gay
Assistant District Attorney General
113 West Main Street
Gallatin, TN 37066
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, James Allen Gooch, Sr., a/k/a “Angie Foot,” appeals as of
right from his conviction upon a guilty plea in the Sumner County Criminal Court for the
sale of under one-half gram of cocaine, a Class C felony. The defendant was charged
with two counts of selling less than one-half gram of cocaine, possession of marijuana,
and possession of drug paraphernalia. Pursuant to an agreement, the defendant
entered a guilty plea to one count of selling less than one-half gram of cocaine, and the
remaining charges were dismissed. The defendant was sentenced as a Range I,
standard offender to five years in the custody of the Department of Correction. The trial
court also imposed a two-thousand-dollar fine. The defendant contends that the trial
court erred by failing to consider a sentence other than confinement by the Department
of Correction. We affirm the judgment of the trial court.
The record reflects that on April 1, 1996, the defendant sold forty dollars
worth of crack cocaine to a confidential informant. The next day, the defendant sold
twenty dollars worth of crack cocaine to the same informant. When the defendant was
arrested on April 4, 1996, he was in possession of marijuana and drug paraphernalia.
At the sentencing hearing, the defendant testified that he had a six-month-
old son who lived with him. He also stated that he worked full-time for General
Contractors in Nashville. The defendant stated that he sold drugs to support his
cocaine habit but said that he was no longer using cocaine. The defendant admitted
that when he entered his guilty plea six weeks earlier, he would not submit to a drug
test because he believed that he would test positive for cocaine. He also admitted that
he had been involved in either the use or sale of drugs for twenty years. He stated that
when he would travel to buy cocaine he would use it while driving back home. He
admitted that he could not count the number of people to whom he had sold drugs. He
admitted that he had numerous prior convictions, mostly misdemeanors, ranging from
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drug offenses to attempted aggravated assault. The defendant testified that he
continued to sell cocaine and marijuana while he was on probation for another crime.
The presentence report reflects that the defendant dropped out of school
in the ninth grade. In the report, the defendant estimated that he used an ounce of
marijuana and an eight ball of cocaine per week. He had been in two drug and alcohol
treatment programs and completed only one of those programs. The report states that
the defendant had thirty-one prior convictions, one for felony drug sale and the
remainder for misdemeanors involving such things as theft, weapons offenses,
worthless checks, harassment, possession of a gambling device, unlawful storage of
liquor for sale, contributing to the delinquency of a minor, attempted aggravated assault,
assault and battery, public intoxication, aiding and abetting prostitution, and disorderly
conduct.
The trial court, denying alternative sentencing, sentenced the defendant to
five years incarceration. The court recognized that most of the defendant’s prior
convictions were misdemeanors, but the court expressed concern over the number of
lives that were affected by the defendant’s long history of drug use and sales.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-401(d)
and -402(d). As the Sentencing Commission Comments to these sections note, the
burden is now on the appealing party to show that the sentencing is improper. This
means that if the trial court follows the statutory sentencing procedure, makes findings
of fact that are adequately supported by the record, and gives due consideration and
proper application of the factors and principles that are relevant to sentencing under the
1989 Act, we may not disturb the sentence even if a different result were preferred.
State v. Fletcher, 803 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
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As a Range I, standard offender who has been convicted of a Class C
felony, the defendant is presumed to be a favorable candidate for a sentence other
than confinement, if there is no evidence to the contrary. See T.C.A. § 40-35-102(5)
and (6). The presumption in favor of alternative sentencing may be rebutted if (1)
“confinement is necessary to protect society by restraining the defendant who has a
long history of criminal conduct,” (2) “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,” or (3) “measures less
restrictive than confinement have frequently or recently been applied unsuccessfully to
the defendant.” T.C.A. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166,
169 (Tenn. Crim. App. 1991).
The defendant contends that the trial court failed to give adequate
consideration to sentencing alternative to incarceration in the custody of the
Department of Correction. Specifically, the defendant argues that in light of his
responsibility for his six-month-old son, the trial court should have given greater
consideration to sentencing him to some form of probation, house arrest, or
incarceration with work release.
Initially, we note that the record does not include a transcript of the guilty
plea hearing at which the convicting evidence would have been presented by stipulation
or testimony. In order for us to conduct a proper de novo review, the guilty plea hearing
transcript should be made a part of the record on appeal. The defendant must prepare
a transcript of the evidence that is necessary to convey a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of appeal.
T.R.A.P. 24(b). Absent a record of the guilty plea hearing, at which evidence relevant
to sentencing is often provided, we are unable to perform a complete de novo review.
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In any event, although the trial court did not provide a record of findings
and considerations as contemplated by the sentencing laws, we conclude that the
record supports the sentence imposed. The trial court indicated that the defendant’s
long criminal history and the resulting danger to society outweighed all other
considerations. With the defendant having thirty-one prior convictions, thirteen of which
are drug-related, we conclude that the evidence supports the sentence imposed. We
do not believe that the claimed hardship on the defendant’s family warrants a different
result under the circumstances of this case.
In consideration of the foregoing and the record as a whole, the judgment
of conviction entered by the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
David H. Welles, Judge
Joe G. Riley, Judge
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