Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 16, 2014
Direct Appeal from the Circuit Court for Marshall County Nos. 12CR142, 12CR143, 13CR7, 13CR8, 13CR9 Lee Russell, Judge
Michael Auffinger, Lewisburg, Tennessee, for the appellant, Emmett Lamon Roseman.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Robert James Carter, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall and Alan E. Glenn, JJ., joined.
NORMA McGEE OGLE, JUDGE
On September 13, 2013, the appellant pled guilty to possession of a Schedule VI controlled substance, namely marijuana, with the intent to sell, a Class E felony; to sale of a Schedule II controlled substance, namely crack cocaine, a Class B felony; and to delivery of a Schedule II controlled substance, namely crack cocaine, a Class B felony. The appellant pled guilty on a separate indictment to failure to appear on a statutory rape charge on January 15, 2013; to failure to appear on a charge of possession of a Schedule VI controlled substance with the intent to sell on January 8, 2013; and to failure to appear on a charge of possession of a Schedule VI controlled substance with the intent to sell on December 19, 2012, all Class E felonies. The plea agreement provided that the trial court would determine the length and manner of service of sentence.
A transcript of the guilty plea hearing was not included in the record on appeal. However, the presentence report, which was introduced at the sentencing hearing, reflects that on January 12, 2011, members of the 17th Judicial District Drug Task Force and detectives with the Lewisburg Police Department utilized the services of a confidential informant (CI). The CI purchased $60 worth of marijuana from the appellant in the parking lot of an apartment building on Haynes Street in Lewisburg. After the transaction, the appellant returned to an apartment on the top left side of the building. The agents and detectives watched the building for one or two hours and noticed several individuals arrive and leave from the appellant's apartment. One of the individuals, who was stopped by Agent Brad Martin, possessed a small bag of marijuana. Officer Tim Miller decided to approach the apartment and perform a "knock-and-talk." He walked up the stairs, looked through the blinds, and saw the appellant and a young female in the living room. When Officer Miller knocked on the closed door, he saw the female grab a Ziploc bag from the couch and run toward the rear of the apartment. The bag appeared to contain a large amount of marijuana. The appellant answered the door, and Officer Miller walked down the hall where the female had gone. He noticed a light on in the bathroom off the hall. An empty Ziploc bag was lying on the floor and approximately three ounces of marijuana was floating on the water inside the toilet. The agents performed a consensual search of the appellant and found $450 of suspected illegal drug proceeds, including $60 from the controlled buy. A subsequent consensual search of the residence revealed two sets of digital scales in the master bedroom. The appellant spoke with the agents and acknowledged ownership of the marijuana and scales.
The presentence report further reflects that on October 19, 2011, Agent Brad Martin and Officer Tim Miller met with a CI, who told them that the appellant and Whitney Green were involved in the illegal distribution of cocaine. At approximately 7:04 p.m., the CI called Green and asked to buy $100 worth of crack cocaine. Around 7:21 p.m., Green sent the CI a text message, instructing him to meet her at Kris's Store. The appellant and Green arrived at the store in a red Ford Focus. The CI approached the car and had a "hand-to-hand exchange" with the appellant. Afterward, the CI rendezvoused with the agents and relinquished a small, white, plastic bag containing crack cocaine.
The presentence report also reflects that the appellant had two prior misdemeanor convictions for failure to appear; three convictions of assault; eight convictions of selling marijuana; four convictions of possessing marijuana; one conviction of disorderly conduct; and two convictions of possessing drug paraphernalia.
Renee Howell, a probation officer, testified that she prepared the appellant's presentence report. She stated that the appellant previously had probationary sentences revoked on at least two occasions. She also stated that the appellant was on probation when he committed the three failure to appear offenses; however, he was not on probation when he committed the drug offenses.
On cross-examination, Howell said that when she spoke with the appellant, he indicated that he was trying to "turn his life around as best as he can." He told her that he was taking courses while he was incarcerated.
Regarding the conviction of possession of marijuana with the intent to sell, the parties agreed that the appellant was a Range II offender, that he was entitled to release eligibility after service of thirty-five percent of his sentence, and that he was subject to a sentence between two to four years. The parties also agreed that the appellant was a Range I offender on the crack cocaine conviction, that he was entitled to release eligibility after service of thirty percent of his sentence, and that he was subject to a sentence between eight to twelve years. Finally, the parties agreed that the appellant was a Range III offender for his convictions of failure to appear, that he was entitled to release eligibility after service of forty-five percent of his sentence, and that he was subject to a sentence between four to six years.
To each conviction, the court applied enhancement factor (1), that the appellant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range. Tenn. Code Ann. § 40-35-114(1). The court specifically noted that it did not consider the felony offenses used to establish the appellant's sentencing range but considered his multitude of misdemeanor offenses. The court also applied enhancement factor (8), that the appellant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community, to all of the convictions. Id. at (8). The court noted that the appellant had previously violated probation on at least two occasions. Finally, the court applied enhancement factor (13)(C), that the appellant was on probation at the time he committed the offenses, to the failure to appear convictions. The court applied mitigating factor (1), that the appellant's criminal conduct neither caused nor threatened serious bodily injury, to all of the convictions. Tenn. Code Ann. § 40-35-113(1). However, the court did not afford the ...