Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 22, 2015.
Appeal from the Criminal Court for White County No. CR-5905 David A. Patterson, Judge
Michael J. Rocco, Sparta, Tennessee (on appeal); and Patrick Hayes, Cookeville, Tennessee (at hearing), for the Appellant, Termel Dowdy.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Philip Hatch, Assistant District Attorney General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Roger A. Page, JJ., joined.
ALAN E. GLENN, JUDGE.
In January 2013, the White County Grand Jury returned a seven-count indictment against the defendant, charging him with introduction of contraband into a penal institution; possession of a Schedule VI controlled substance, marijuana, with intent to sell or deliver; possession of a Schedule II controlled substance, Oxycodone; possession of a Schedule IV controlled substance, Alprazolam; DUI, first offense; driving on a suspended driver's license; and violation of the implied consent law. On May 6, 2013, the defendant pled guilty to the introduction of contraband into a penal institution and DUI charges, and the remaining counts were dismissed. Pursuant to the plea agreement, the defendant was sentenced as a Range III, persistent offender to ten years for the introduction of contraband conviction and to a concurrent term of eleven months, twenty-nine days for the misdemeanor DUI conviction, with the manner of service to be determined by the trial court.
The factual basis for the pleas was recited by the State at the guilty plea hearing as follows:
[O]n September 1st, 2012, a call received by White County dispatch, an EMS driver, a Christopher Dodd who was proceeeding north on Spring Street reported that a Dodge pickup moved into his lane of travel and approached the ambulance head-on, a possible impaired driver.
Shortly thereafter Sergeant Daniel Trivette with the White County Sheriffs Department encountered that same truck, observed it straddling the fog line, followed it into a parking lot, initiated the traffic stop, came into contact with [the defendant], who was the driver. Sergeant Trivette would testify that he believed that [the defendant] had alcohol on his breath, he was somewhat sluggish in his movements and unsteady on his feet. He asked [the defendant] to exit his car and conducted a patdown, which he found a Schedule II and Schedule IV controlled substance. Further search of the vehicle found some open containers of alcohol, as well as several unopened bottles of alcohol.
He placed [the defendant] into custody, asked him if he would consent to a blood alcohol [test], which [the defendant] denied. Ran [the defendant's] driver[']s license through dispatch and it was confirmed to be suspended. Then proceeded to the White County Jail. Prior to entering, Sergeant Trivette would testify that he asked [the defendant] if he had anything else on his person, such as contraband, and [the defendant] responded no, he had already searched him. Came into the jail, Correction Officer Rutherford would testify that upon searching [the defendant] prior to completing the booking in process, when they were in the in-take area, which is an area where inmates are under custodial supervision, [Officer] Rutherford saw a bag of what was believed to be marijuana fall out of the pants of [the defendant]. Officer Rutherford then gave it to Sergeant Trivette to get sent to the TBI [Tennessee Bureau of Investigation] for analysis.
Annell Carpenter, a TBI Agent, would testify that the Schedule II and IV substances that were believed to be found on [the defendant] at the scene were Oxycodone, which is a Schedule II, and Alpraz[o]lam, which is a Schedule IV. And the believed to be marijuana that fell out of [the defendant's] pants inside the jail was indeed a Schedule VI controlled substance which was marijuana.
At the August 8, 2013 sentencing hearing, Teresa Autry, the defendant's probation/parole officer, testified that the defendant was confirmed as a member of the Vice Lords gang in 2003 and that he had dropped out of school in the eleventh grade but had received his GED while incarcerated in 2010. She prepared the defendant's presentence report, which included prior convictions for aggravated burglary (three counts), robbery, driving on a suspended license, possession of a Schedule II controlled substance, sale of cocaine, possession of marijuana, coercion of a witness, aggravated assault, criminal impersonation, first degree burglary, failure to appear, theft of property up to ...