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State v. Ogden

Court of Criminal Appeals of Tennessee, Jackson

May 20, 2015

STATE OF TENNESSEE
v.
TAMMY JOY OGDEN

Assigned on Briefs March 3, 2015

Appeal from the Circuit Court for Hardeman County Nos. 35CC1-2014-CR-18, 35CC1-2014-CR-113 J. Weber McCraw, Judge

Karen T. Fleet (on appeal), Bolivar, Tennessee, and Falen Chandler (at plea and sentencing), Somerville, Tennessee, for the appellant, Tammy Joy Ogden.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe VanDyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

OPINION

ROBERT H. MONTGOMERY, JR., JUDGE

At the guilty plea hearing on July 18, 2014, the State summarized the factual bases of the pleas: In case number 35CC1-2014-CR-18, Agents Drewery and Cook of the Twenty-Fifth Judicial District Drug Task Force made arrangements on January 24, 2013, for a confidential informant to call the Defendant to purchase morphine pills. Agent Drewery ultimately purchased five thirty-milligram morphine pills from the Defendant for $50. During the exchange, carisoprodol was also offered for purchase. In case number 35CC1-2014-CR-113, the agents made arrangements on January 16, 2013, to purchase a controlled substance from the Defendant. Agent Drewery purchased ten morphine pills and eight alprazolam pills from the Defendant at her home.

At the sentencing hearing, the Defendant testified that she had spinal cancer, cervical cancer, multiple sclerosis, and chronic obstructive pulmonary disease. She also had a right knee replacement for which she was attending therapy three days per week. She was sometimes unable to care for herself and had a nurse, who sometimes fed or bathed her. She took prescription medication. She apologized for "com[ing] in this county and do[ing] this" and said that it would never happen again.

On cross-examination, the Defendant testified that she did not "take issue" with the presentence report and acknowledged her prior criminal convictions. She agreed that she had sold drugs from her house. She denied that house arrest would allow her to commit crimes easily and said she had moved since the offenses.

Nurse Felicia Brown testified that she visited the Defendant five days per week. She assisted the Defendant with showers, ran errands, reminded the Defendant to take her medications, cleaned and cooked, and sometimes fed the Defendant. She said the Defendant took many medications and could not care for herself daily.

Johnny Dillinger, the Defendant's fiancé, testified that he had lived with the Defendant for about nineteen months but had been dating her for about two years. He said that sometimes the Defendant could not get up at night to use the restroom and had to use a bedpan. He said the Defendant had difficulty walking due to her multiple sclerosis, had recently undergone a knee replacement, fell frequently, and was forgetful. He provided assistance to the Defendant, whom he was with most of the time, and answered any questions she had as a result of her forgetfulness.

Mr. Dillinger testified that he helped take the Defendant to her doctors' appointments, that she sometimes had two or three appointments per week, and that she had a physical therapy session scheduled for that morning. He said that if the Defendant received house arrest, he would ensure she complied with the restrictions and that if a fine were assessed, he would ensure she was "responsible" for paying it.

The presentence report showed that the fifty-two-year-old Defendant had previous convictions for burglary, aggravated motor vehicle theft, three counts of felony theft, five counts of misdemeanor theft, attempt to commit a felony, ten drug-related offenses, vandalism, three counts of driving under the influence (DUI), reckless driving, and four counts of driving with a suspended, cancelled, or revoked license. The first conviction occurred in 1983 when the Defendant was twenty-one years old, and the last occurred in 2011 at age forty-nine. For nine of the convictions, the Defendant received probation or received a suspended sentence. She violated the rules of probation in 1993, and her probation was revoked for a period of time. At the time of the report, an active arrest warrant existed in Oklahoma.

Relative to the Defendant's general background, the Defendant dropped out of high school after the eleventh grade. She did not consume alcohol and reported numerous health-related issues. She was taking celexa for depression, and she had received mental health counseling and drug and alcohol counseling. She had received a medical furlough pending the sentencing hearing. She was divorced, and she had four adult children. She had been employed previously, most ...


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