State of Tennessee v. Pharez N. Price

Citation: Not availableDocket: M2000-01227-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; March 21, 2001; Tennessee; State Appellate Court

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Pharez N. Price was convicted by a Lewis County jury for criminal responsibility for facilitation of a felony and possession of drug paraphernalia, with the underlying felony being possession of cocaine with intent to sell or deliver. His brother had pled guilty to the same felony charge. Price was sentenced to nine years of continuous confinement for the facilitation conviction and eleven months and twenty-nine days in the workhouse for the paraphernalia conviction, with both sentences served concurrently for a total of nine years. In his appeal, Price argued the length and manner of his sentence were inappropriate. However, after reviewing the limited record, the court affirmed the trial court's decision, finding the sentence appropriate. The case involved a traffic stop where Deputy Sherman discovered Price driving with an expired license and detected alcohol odor. The brother was seen discarding items during the stop, leading to their arrests and the discovery of drug paraphernalia in the vehicle. The trial included several counts against Price, but he was found guilty on the facilitation and paraphernalia counts while a count of driving on a revoked license was dismissed.

An open, cold beer container and a plastic bag with white powder, later identified as cocaine through a field test, were discovered next to the passenger door where the defendant was seated. A further search revealed two additional bags of white powder nearby. The defendant’s brother admitted guilt to charges of possession of cocaine and drug paraphernalia, while the defendant denied any knowledge of these items.

The defendant is contesting the length and manner of his sentence based on three claims: 1) incorrect classification as a Range II multiple offender, 2) improper application of three enhancement factors, and 3) wrongful denial of entry into the Community Corrections Program. The court is obligated to conduct a de novo review of the record, presuming the trial court's determinations are correct unless it can be shown that the trial court did not adequately consider sentencing principles or relevant facts.

Key to this review is the evaluation of evidence presented, the presentence report, sentencing principles, arguments from counsel, the nature of the offense, any mitigating or enhancing factors, and the defendant’s statements regarding rehabilitation potential. The defendant carries the burden of proving the trial court's sentence was erroneous.

In determining the appropriate sentencing range, the trial court first assesses the defendant’s prior convictions. Range II applies to multiple offenders with a requisite number of prior felony convictions, specifically when there are at least two relevant prior felony convictions. Convictions from offenses occurring within 24 hours as part of a single event count as one for this assessment, excluding those involving bodily injury. The defendant was convicted of criminal responsibility for facilitation of a felony, which is classified one level below the facilitated felony.

Facilitation, as defined by law, involves a person providing substantial assistance to a felony perpetrator without the intent to promote or benefit from the felony. In this case, the defendant's brother pled guilty to a Class B felony for possession of cocaine. The defendant was convicted of facilitation, a Class C felony, and found criminally responsible, making him a Range II multiple offender, which carries a punishment range of six to ten years.

The trial court's determination of the defendant's Range II status was based on past convictions for Class D felony theft, specifically from docket numbers 8271 and 7979, both from 1994. The defendant contested this classification, arguing that an aggravated assault conviction included in the State’s Notice of Intent to Seek Enhanced Punishment lacked a specified offense date, which he claimed rendered it invalid for establishing Range II status. However, the trial court did not rely on this aggravated assault conviction; it solely used the two theft convictions.

The defendant further questioned whether the theft charges could be viewed as separate offenses or part of a common scheme. However, he did not submit the relevant documents from the State's Notice of Intent to the appellate court, which are necessary for reviewing his claims. The Tennessee Rules of Appellate Procedure outline the requirements for presenting such issues on appeal.

The defendant/appellant is responsible for including all relevant documents related to the appeal, as established in previous cases. Failure to provide necessary documentation, such as motions or transcripts, can lead to waiving issues on appeal, as seen in State v. Zirkle and State v. Miller. The court presumes the trial court's rulings correct if the appellate record lacks supporting transcripts, which was noted in State v. Jones. The defendant's argument regarding the concurrent sentencing of two theft convictions does not hold merit, as there is no legal basis for presuming them as one conviction, and the necessary documentation is missing from the record.

Regarding sentencing, the defendant challenges the trial court's application of three enhancement factors: (1) a history of previous criminal behavior, (2) a history of noncompliance with community release conditions, and (3) willful failure to pay an administrative fee despite having court-appointed counsel. The trial court, when determining a sentence for a Class C felony, may increase the sentence above the minimum if enhancement factors exist, but the presence of mitigating factors requires starting at the minimum and adjusting within the range. The court has discretion in weighing these factors, provided its decisions align with the 1989 Sentencing Act and are supported by the record. The trial court applied three enhancement factors and one mitigating factor in this case.

Enhancement Factor (1) was considered by the court after establishing that the defendant's sentencing range was six to ten years for a Class C felony, with six years being the presumptive minimum. The court found that the defendant had a history of criminal behavior beyond what was necessary to establish his range, as evidenced by prior convictions listed in the pre-sentence report and additional convictions referenced in the State’s Notice of Intent to Seek Enhanced Punishment. The defendant argued that enhancement factor (1) was improperly applied since all previous convictions were used to determine his Range II, multiple offender status. However, the trial court clarified that only two Class D felony theft convictions were used for this determination. The trial court also cited an escape conviction to support enhancement factor (1), which was corroborated by defense counsel's acknowledgment of a related misdemeanor charge. The defendant's criminal history spanned seven years, leading to the conclusion that enhancement factor (1) was appropriately applied.

Regarding Enhancement Factor (8), the trial court noted the defendant's history of non-compliance with probation conditions, having been violated on previous occasions. The defendant conceded that his probation was revoked but argued that the reasons for the revocation were not adequately documented, suggesting factors other than unwillingness to comply. However, without documentation in the appeal record to support his claims, the court referenced a precedent (State v. Elam) which upheld the application of enhancement factor (8) based on a similar inability to comply with community corrections. Since the defendant did not dispute the revocation itself, the court concluded that enhancement factor (8) was also properly applied.

Enhancement factor (21) was challenged by the defendant, who argued that the trial court improperly applied it due to a lack of evidence demonstrating his ability to pay a $50 administrative fee for court-appointed counsel. Under Tennessee law, this fee can be waived or reduced if a defendant is found to lack the financial means to pay. The trial court noted that the defendant was appointed counsel on June 3, 1999, and had not paid the fee by the time of his trial on March 2, 2000, despite being on bond. The defendant contended that his failure to pay was not willful, citing periods of incarceration and lack of proof of financial ability. The court agreed, stating that there were no findings supporting the conclusion that the defendant could pay the fee. Unlike a previous case (State v. Jerry Ray Chandler), where the defendant was found to have income supporting his ability to pay, no such evidence was presented here. Consequently, the trial court erred in applying enhancement factor (21).

In determining the sentence, the trial court identified three enhancement factors, including factor (21), resulting in a ten-year sentence. However, after considering a mitigating factor—specifically, that the defendant's conduct did not threaten serious bodily injury—the court reduced the sentence to nine years. The appellate court concluded that, despite the improper application of factor (21), the defendant's criminal history and inability to meet probation conditions justified the ten-year enhancement based on the other two valid factors. Thus, a nine-year sentence as a Range II multiple offender was deemed appropriate.

Additionally, the defendant argued he was not properly considered for community corrections, asserting he met all requirements under Tennessee Code Annotated Section 40-36-106 (a) for suitability.

The trial court sentenced the defendant to nine years of incarceration, exceeding the limit for alternative sentencing despite the defendant being a C felony and presumed a favorable candidate. The court found no evidence supporting the defendant's eligibility for special needs consideration under community corrections statutes. However, contrary to the court's interpretation, as a Range II multiple offender, the defendant is not automatically presumed favorable for alternative sentencing. Although he is ineligible for probation due to his sentence length, he could qualify for community corrections if he meets the minimum criteria outlined in Tennessee Code Annotated Section 40-36-106(a)(1). The Community Corrections Act allows for creative sentencing options for certain nonviolent offenders. The criteria for eligibility include being incarcerated without this option, having nonviolent felony convictions, and lacking a history of violent behavior. The court agrees the defendant meets these criteria, but eligibility does not guarantee participation. Previous less restrictive measures have failed for this defendant, leading to the conclusion that he cannot be rehabilitated outside of incarceration. The court affirmed the trial court's judgment regarding both the sentence length and manner of service, determining that continuous confinement in the Tennessee Department of Correction was appropriate.