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State v. Marshall6/17/2005
On December 18, 2003, the defendant pled guilty to one count of possession of more than .5 grams of cocaine with intent to sell and one count of possession of marijuana. See Tenn. Code Ann. §§ 39-17- 417(a)(4), -418(a). Pursuant to a plea agreement, the trial court imposed concurrent sentences of twelve years and eleven months and twenty-nine days, to be served on community corrections. On April 7, 2004, a community corrections violation warrant was filed wherein it was alleged that the defendant had violated the terms of his sentence by failing to pay court costs and fines, by failing to complete a drug and alcohol treatment program, and by failing to report his arrest for burglary, possession of a Schedule IV controlled substance, and public intoxication.
At the revocation hearing, Marcus Jones, the defendant's community corrections supervisor, testified that the defendant failed to pay any of the court costs or fines associated with his convictions. Jones stated that the defendant also failed to report a new arrest and failed to complete a drug and alcohol treatment program. According to Jones, the defendant entered a residential treatment program at Aspell Manor in February of 2004, quit the program the following month without completing treatment, and was arrested one week later.
The defendant admitted that he had not paid the fines and court costs, explaining that he used the money instead to "g t drunk and . . . d cocaine." He also acknowledged having left the treatment program after doing drugs for "half the night" while out on a pass with his fiancée. He testified that he did not report his new arrest because the jailers would not allow him access the telephone number of his community corrections supervisor.
At the conclusion of the hearing, the trial court revoked the defendant's community corrections sentence based upon his failure to report the new arrest, his failure to pay court costs, and his failure to complete the drug rehabilitation program.
At the sentencing hearing, the defendant made an unsworn statement, see Tenn. Code Ann. § 40-35-210(6), claiming that he entered into the plea agreement against the advice of his counsel. He claimed that he was not really guilty of the crimes charged and entered pleas only because he wanted to be out of jail for the holidays. He explained that he violated the terms of his community corrections sentence only because of his drug and alcohol problem.
In arriving at a sentence of twenty years for the defendant's cocaine conviction, the maximum within the range, the trial court applied enhancement factors (2), that the defendant has a history of criminal convictions or criminal behavior in addition to that necessary to establish the appropriate range, and (9), that the defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release into the community. See Tenn. Code Ann. § 40-35-114(2), (9) (2003). The trial court determined that factor (2) was entitled to "great weight" and that factor (9) was not entitled to "a whole lot of weight."
In this appeal, the defendant asserts that the trial court erred by failing to apply a mitigating factor. He also argues that the application of enhancement factor (9) violates the requirements of Blakely v. Washington, 524 U.S. ___, 124 S.Ct. 2351 (2004).
When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the
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