State of Tennessee v. Debra Foster ( 2003 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 22, 2003
STATE OF TENNESSEE v. DEBRA FOSTER
Direct Appeal from the Criminal Court of Sullivan County
No. S46, 107 Phyllis. H. Miller, Judge
No. E2002-01825-CCA-R3-CD
June 4, 2003
The appellant, Debra Foster, pled guilty to seven counts of attempt to obtain possession of a
controlled substance by fraud, Class D felonies. She received an effective sentence of eight years
as a Range II, multiple offender. The trial court denied alternative sentencing and the appellant
timely appealed. Upon review of the record and the parties’ briefs, we affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.
Doug Vance, Jr., Bristol, Tennessee, for the appellant, Debra Foster.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant Attorney General,
for the appellee, State of Tennessee.
OPINION
I. Factual Background
The State’s proof at the sentencing hearing revealed that on seven occasions the
appellant made telephone calls to various pharmacies in the Bristol area. The appellant claimed that
she was calling from a doctor’s office to authorize prescriptions for Lortab and Alprazolam. The
prescriptions were determined to be fraudulent, resulting in the appellant’s arrest.
The appellant testified at the sentencing hearing regarding her addiction to
prescription drugs. She related that she had been taking pain medication for approximately fifteen
years. Initially, she was prescribed medication following surgery. She had undergone nine surgeries
since she was in her early twenties. Subsequently, her doctor determined that the appellant “had drug
seeking behavior,” and refused to authorize additional prescriptions for the medications. After being
abruptly taken off the medications, the appellant attempted to obtain unauthorized prescriptions.
The appellant testified that at the time of her last arrest, she was taking approximately
thirty (30) pills per day, “not counting the nerve medication [she] was taking.” The appellant
admitted that she occasionally sold some of the drugs, but maintained that she primarily obtained
them for her own use. She admitted that she had a drug addiction and asked the court to place her
on probation so that she could obtain treatment. She conceded that she had other charges pending
in Virginia and had been previously sentenced in Washington County for similar offenses. She
committed the instant offenses while she was on bond on the Washington County charges.
In accordance with the plea agreement, the trial court sentenced the appellant as a
Range II multiple offender to eight years incarceration in the Tennessee Department of Correction
on counts one and two of the information.1 Additionally, the appellant was sentenced as a Range
I standard offender to four years incarceration on each of the remaining counts. The trial court
ordered the sentences for these seven convictions to be served concurrently, but consecutively to two
prior sentences in Washington County, resulting in an effective sentence of thirteen years.
After hearing the testimony and reviewing the presentence report, the trial court
determined that while the appellant was presumed to be a favorable candidate for alternative
sentencing, the State had successfully provided evidence to the contrary. The court found that the
appellant had failed to demonstrate to the court that full probation “would serve the ends of justice,
yourself or the community.” The court noted that the appellant had “just been unstoppable on
committing crimes.”
Further, the trial court found that the appellant had been placed on some type of
alternative sentencing in the past without success. Additionally, the court determined that the
appellant “was not credible.” The trial court noted that the appellant had stated in the presentence
report that she sold drugs because it was an easy way to make money. However, at the sentencing
hearing the appellant claimed that she made the statement regarding her sale of drugs because she
had not admitted to herself that she was addicted to drugs and she also did not want her family to
know of her drug use.
II. Analysis
When a criminal appellant challenges the length, range, or manner of service of a
sentence, the reviewing court must conduct a de novo review of the sentence with a presumption that
the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997).
This presumption, however, is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to show such consideration, the
1
The appellant waived the right to be tried upon presentment or indictment and consented to prosecution by
information. See Tenn. Co de A nn. § 4 0-3-1 01 (199 7).
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review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992). Because the trial court correctly followed the statutory sentencing procedure, we will review
the sentence with a presumption of correctness.
In making its sentencing determinations, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence, and then determines the specific sentence
and the propriety of sentencing alternatives by considering: (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 the enhancement and mitigating
factors, (6) any statements the appellant wishes to make in the appellant’s behalf about sentencing,
and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103(5) (1997), -
210(a) (Supp. 2000); see also State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).
When imposing a sentence, the trial court must make specific findings of fact on the
record supporting the sentence. See Tenn. Code Ann. § 40-35-209(c) (1997). The record should
also include any enhancement and mitigating factors applied by the trial court. See Tenn. Code Ann.
§ 40-35-210(f). Thus, if the trial court wishes to enhance a sentence, the court must state its reasons
on the record. The purpose of recording the court’s reasoning is to guarantee the preparation of a
proper record for appellate review. See State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App.
1996).
A defendant 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.” Tenn. Code Ann. § 40-35-102(6) (1997); see also State v.
Lane, 3 S.W.3d 456, 462 (Tenn. 1999). Thus, being a multiple offender, the defendant is not entitled
to the presumption. In any event, consideration for a sentence of confinement can be found in
Tennessee Code Annotated section 40-35-103(1), which sets forth the following considerations:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) 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
(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
See also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); Ashby, 823 S.W.2d at 170.
Additionally, the principles of sentencing reflect that the sentence can be no greater
than that deserved for the offense committed and should be the least severe measure necessary to
achieve the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2) and
(4). The court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. at (5). A defendant with a long history of criminal
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conduct and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative
sentencing. Tenn. Code Ann. § 40-35-102(5).
We conclude that the record in this case amply supports the trial court’s denial of
alternative sentencing. As the trial court noted, the appellant has a lengthy history of criminal
convictions and criminal behavior. The presentence report reflects that the appellant has numerous
convictions for theft and forgery, a conviction for driving under the influence, and convictions for
prior attempts to obtain controlled substances by fraud.
Indeed, the instant offenses were committed while the appellant was on bond for other
charges resulting from her attempts to obtain medication through fraudulent prescriptions. Notably,
the appellant admitted that she had taken Lortab the day before her interview with the probation
officer who prepared the presentence report. As the trial court found, measures less restrictive than
confinement have been applied repeatedly and unsuccessfully to the appellant. Moreover, the
appellant’s almost continuous criminal activity over a long period of time indicates that her potential
for rehabilitation is poor. Despite repeated convictions, the appellant has continued to violate the
law and abuse drugs. She has proven that she is unable to conform her behavior to comply with the
law.
III. Conclusion
Finding no error, we affirm the judgment of the trial court.
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NORMA McGEE OGLE, JUDGE
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