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State v. Shorter12/30/2003
On April 11, 2002, officers searched the defendant's residence pursuant to a search warrant and discovered 6.3 grams of cocaine in her possession. She entered an "open" guilty plea to possession of .5 grams or more of cocaine with intent to sell. Following a sentencing hearing, the trial court imposed a nine-year, nine-month sentence and denied alternative sentencing.
SENTENCING HEARING
The presentence report showed that the twenty-seven-year-old defendant had prior convictions for assault and driving under the influence in Tennessee, and convictions for false informing, criminal conversion, and a weapons offense in Indiana. Some of these offenses along with the instant offense were committed while she was on probation.
The defendant testified she cooperated with the authorities and provided them with information regarding the role of other persons in drug trafficking. She admitted she was convicted for offenses committed while she was on probation, and that she was on probation for assault at the time she committed the instant offense. She also admitted she had been selling drugs for two months at the time of her arrest.
The trial court applied enhancement factor (2), the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range, and enhancement factor (9), the defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(2), (9) (Supp. 2002). The trial court also applied mitigating factor (10), the defendant assisted the authorities in locating other persons involved in the crime, and mitigating factor (13), any other factor consistent with the purpose of this chapter because the defendant pled guilty to the charge against her. See id. § 40-35-113(10), (13) (1997). The trial court, stating it placed "considerable" weight upon the enhancement factors, imposed a sentence of nine years and nine months. The trial court also found the defendant had failed to establish she was a proper candidate for community corrections because measures less restrictive than confinement had been unsuccessful in rehabilitating the defendant.
STANDARD OF REVIEW
A defendant's sentence is reviewed by the appellate courts de novo with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). For this presumption to apply to the trial court's actions, there must be an affirmative showing in the record that the trial court considered sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999).
If the trial court has imposed a lawful sentence by following the statutory sentencing procedure, has given due consideration and proper weight to the factors and sentencing principles, and has made findings of fact adequately supported by the record, this court may not modify the sentence even if it would have preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).
ANALYSIS
The defendant argues the trial court erred in applying enhancement factor (9), the defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community, because the defendant was never placed on "intensive monitoring of probation or other options such as Community Corrections." The record on appeal clearly established the defendant on prior occasions committed offenses while on probation. Enhancement factor (9) is applicable regardless of
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