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State v. Frazee10/25/1999
The defendant, David W. Frazee, appeals his Benton County Circuit Court conviction for possession of a Schedule VI controlled substance, a Class A misdemeanor. See Tenn. Code Ann. § 39-17-418(a) (1997). The trial court imposed a $250 fine and an eleven-month, 29-day jail sentence, six months of which is to be served in jail with the remainder to be served on supervised probation. In his appellate brief, the defendant raised two issues: (1) whether the convicting evidence was insufficient because the controlled substance was not properly made an exhibit to the forensic scientist's testimony, and (2) whether the trial court erred in not imposing an alternative sentence. During oral argument, however, the defendant's counsel conceded that there was no basis in the record for establishing his claim on the first issue. Accordingly, we have limited our review to the sentencing issue and have found no error requiring reversal. Thus, we affirm the judgment of the trial court.
The defendant was prosecuted for the sale of marijuana on the basis of an August 21, 1997 undercover drug purchase. The defendant acted as an intermediary between the undercover agent, who gave the defendant $125, and the defendant's cousin, who accepted the money and gave the defendant a package containing an ounce of marijuana to deliver to the agent. The defendant testified that he did not know that the material in the package was a controlled substance. Based upon these facts, a jury convicted the defendant of simple possession.
The trial court imposed the fine and the eleven-month, 29-day sentence on the same day the verdict was returned, despite the defendant's request for a delay in sentencing. The trial Judge said, "I can always consider motions to lessen the sentence later." The defendant later moved for a new trial and a modification of the sentence. At the hearing on these motions, he presented court records of 70 general sessions court cases processed between 1993 and 1998 in which defendants were sentenced for possession of marijuana. The average length of incarceration in those cases was 25 days. At the Conclusion of the hearing, the trial court modified the sentence so as to require six months incarceration followed by five months and 29 days supervised probation. The motion for new trial was denied.
Against this factual backdrop, we consider the defendant's sentencing challenge.
In determining whether the trial court has properly sentenced an individual, this court engages in a de novo review of the record with a presumption that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997). In conducting our de novo review, we must consider the evidence at sentencing, the presentence report, the sentencing principles, the arguments of counsel, the statements of the defendant, the nature and characteristics of the offense, any mitigating and enhancement factors, and the defendant's amenability to rehabilitation. Tenn. Code Ann. § 40-35-210(b) (Supp. 1998); Tenn. Code Ann. § 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. On appeal, the appellant has the burden of showing that the sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby, 823 S.W.2d at 169.
In felony sentencing, the trial court has an affirmative duty to state in the record, either orally or in writing, which enhancement and mitigating factors it found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); Tenn. Code Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). In contrast, the misdemeanor sentencing statute only requires that the trial court consider the enhancement and mitigating f
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