Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 29, 2014
Appeal from the Circuit Court for Marshall County No. 2013-CR-101 F. Lee Russell, Judge
Donna Orr Hargrove, District Public Defender, Lewisburg, Tennessee; Michael J. Collins (at plea hearing and on appeal), Assistant District Public Defender, Shelbyville, Tennessee; and Andrew Jackson Dearing III (at plea hearing), Assistant District Public Defender, Lewisburg, Tennessee, for the appellant, Rudy Vincent Dunn.
Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Robert James Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which John Everett Williams and Robert H. Montgomery, Jr., JJ., joined.
ROGER A. PAGE, JUDGE
At the guilty plea submission hearing, the State submitted that a confidential informant working with the drug task force in Marshall County provided information to them with regard to appellant's offer to sell marijuana to the informant. After the arrangements between the informant and appellant were finalized, the drug task force set up several mobile surveillance vehicles to enable them to follow appellant to the location of the transaction. While watching appellant's vehicle, officers observed him throw an object from the window that was "consistent with a blunt." Officers conducted a traffic stop, and upon perceiving the "overwhelming smell of raw marijuana coming from the car, " they searched the vehicle and recovered one pound of marijuana.
At the sentencing hearing, the State introduced the presentence report and a certified copy of a judgment for possession of heroin. The parties agreed that appellant should be sentenced as a Range I, standard offender. The State called Crystal Gray, the probation officer who prepared the presentence report, as a witness. She testified that appellant had been evasive about his prior criminal record and that he had mischaracterized the circumstances and disposition of his previous drug charge. Appellant had also offered an explanation for a prior charge of burglary, stating that he had been "in the wrong place at the wrong time" with his cousin and a friend. Appellant reported that he smoked marijuana weekly and that he had smoked it after his guilty plea submission hearing.
Appellant called Alyssa Johnson, a minister at the jail in Davidson County, as a witness. Ms. Johnson was acquainted with appellant through her daughter, who was dating appellant at the time. She stated that when she first met appellant, he was "under the bridge feeding homeless people." She was impressed by his appearance when she met him because he was "professional looking" and did not "look like the baggy pants." She described appellant as being a hard worker and a good person. Ms. Johnson stated that appellant also helped care for her grandchildren. She believed that appellant had a supportive network of people who would help him succeed on probation, and she asked the court for leniency.
Pastor Robert L. Collins, Jr., was appellant's next witness. Pastor Collins was appellant's brother-in-law and had known him since he was seven years old. He reported that appellant had attended his church in Michigan, and when they moved to the Nashville area, appellant was one of his parishioners and participated in youth group activities. Pastor Collins indicated that appellant had two biological children who did not reside with him and that he had taken the "full responsibility" of being a father to his fiancee's four children by supporting them and raising them as his own. Pastor Collins described appellant as the "hardest worker" he knew. He asked the court for leniency and said that he would support appellant "in every way."
Appellant also offered into evidence a letter from his sister, and he further noted the presence of several other family members in the courtroom. He then testified on his own behalf. He explained that he was evasive with Ms. Gray during his interview because another attorney had told him that nothing appeared on his criminal history, likely because appellant was sixteen years old when the heroin conviction occurred. He stated that he had been with friends and that the drugs were found in the same general area, so he was arrested and later convicted of possession of heroin. With respect to the charge of possession of marijuana with intent to sell or deliver for which he was in court, appellant stated that his former supervisor called and asked him to deliver the marijuana to him and that in doing so, appellant "made a bad mistake." Appellant said he was promised $75 for his participation.
Appellant said that if he were granted probation, he would not smoke marijuana. He explained that after he pleaded guilty, no one informed him that he could not continue to smoke. He said that he had been employed in the area of finance for over twenty years and that if he were sentenced to prison, he would never be able to work in that field again.
On cross-examination, appellant testified that he was "fronted" the marijuana and was to collect the money and pay the person following the transaction. He declined to give the person's name and telephone number and said that he did not wish for anyone else to ...