State of Tennessee v. Roy Rowe, Jr.

Citation: Not availableDocket: M2009-00943-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; March 31, 2010; Tennessee; State Appellate Court

Original Court Document: View Document

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Roy Rowe, Jr. pled guilty to seventeen counts of selling controlled substances and was sentenced by the trial court to an effective six-year term as a Range I offender, with a split sentence requiring 365 days in county jail followed by probation. On appeal, Rowe argued that the trial court improperly enhanced his sentence to the maximum allowed. The court reviewed the case and affirmed the trial court's decision, finding no error in the sentencing. 

The underlying conduct involved multiple drug transactions monitored by the 17th Judicial District Drug Task Force using a confidential informant who was searched and equipped with covert recording devices. These transactions included the sale of Alprazolam, Diazepam, Dihydrocodeine, and Meperidine, all of which were verified by the TBI crime lab. The defendant was charged with various counts related to the sale and delivery of these substances. During the sentencing hearing, evidence included testimony from Terese Fraser, a probation officer, who indicated that Rowe had a history of selling other controlled substances like Lortab and Xanax. 

The appellate decision was delivered by Judge Robert W. Wedemeyer, with Judges David H. Welles and Alan E. Glenn concurring. The appeal was processed under Tenn. R. App. P. 3, affirming the judgments of the Circuit Court.

The Defendant admitted to selling drugs on twelve or thirteen occasions over six months but was formally charged with only six counts. He acknowledged selling drugs to a Lewisburg police officer multiple times and indicated that he sold drugs to supplement his Social Security benefits of $752 per month. The Defendant had a prior drug-related conviction from January 25, 2008, for which he pled guilty on February 18, 2009, but failed to serve his sentence, leading to an indictment for failure to appear, which was pending at the time of sentencing. He had not been employed since 1994 due to termination for poor work performance and reported struggling with mental health issues, back problems, and Parkinson’s disease.

Timothy Lane, the Director of the 17th Judicial District Drug Task Force, testified that the Defendant sold prescription pills obtained for free through government programs, emphasizing that prescription drug sales were the primary issue faced by the task force. Although Lane believed that incarceration served as a deterrent, he did not conduct statistical analyses to support this claim. The Defendant assisted in setting up a drug buy for the task force, and Lane provided information about the Defendant's sales to law enforcement.

The trial court merged several counts and imposed a four-year suspended sentence for three counts each of Sale of a Schedule III and IV Controlled Substance, and one count of Delivery of a Schedule IV Controlled Substance. For two counts of Sale of a Schedule II Controlled Substance, the Defendant received a six-year sentence, with 365 days in county jail and the rest on probation, all to be served concurrently. 

On appeal, the Defendant argued that his sentence was excessive and inconsistent with the 1989 Sentencing Act, claiming the trial court improperly weighed enhancement and mitigating factors. The State contended that the trial court adhered to sentencing principles. The trial court identified one enhancement factor—prior criminal behavior—and two mitigating factors, including the Defendant's assistance to authorities and his admission of guilt in other offenses.

The trial court assessed the Defendant's potential for rehabilitation, noting his failure to appear for a prior sixty-day sentence, which negatively impacted his amenability to probation. The court determined that confinement would serve as a deterrent for similar offenses. It imposed a longer-than-usual sentence due to enhancement and mitigating factors, sentencing the Defendant to six years for Class C felonies and four years for Class D felonies, all to run concurrently. Considering the Defendant's age and health issues, the court decided he would serve 365 days in county jail followed by probation. 

Upon appeal regarding the sentence's length or manner, a de novo review is conducted with a presumption of correctness for the trial court's determinations, contingent on proper sentencing procedures being followed. The burden of proof lies with the appealing party to demonstrate any sentencing impropriety. The review must include evidence from the trial and sentencing hearings, the presentence report, and consideration of various sentencing principles and factors. The Criminal Sentencing Act of 1989 outlines that a trial court can impose a sentence within the applicable range if it aligns with the Act’s purposes.

T.C.A. 40-35-210 (c)(2) and (d) (2006) outlines that a sentencing court in Tennessee can utilize enhancement factors to increase a defendant’s sentence, specifically noting that a history of criminal behavior beyond the necessary convictions can be considered (T.C.A. 40-35-114(1)). The trial court must document any enhancement and mitigating factors considered, along with the rationale for the sentence (T.C.A. 40-35-210(e)). Following the 2005 amendments to the Sentencing Act, the grounds for appeal regarding the trial court's evaluation of these factors were removed (2005 Tenn. Pub. Acts ch. 353, 8, 9). Consequently, while appellate review cannot challenge the weighing of enhancement factors, it can assess their application (T.C.A. 40-35-401(d) (2006)). 

In this case, the court determined that the evidence supported the application of enhancement factor number (1), as the Defendant acknowledged selling drugs beyond the charged offenses and misused TennCare to procure drugs for resale, indicating a pattern of criminal conduct. The trial court's decision for split confinement was deemed consistent with the Sentencing Act’s objectives. Mitigating factors were acknowledged, but the court noted the Defendant's prior failure to appear for a sentence. The trial court appropriately weighed the Defendant's health, age, and rehabilitation potential in its sentencing. The appellate court affirmed the sentence, concluding that the Defendant was not entitled to relief on this matter.