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State v. Miller

Court of Criminal Appeals of Tennessee, Nashville

February 6, 2017

STATE OF TENNESSEE
v.
MISTY ANN MILLER

          Assigned on Briefs December 14, 2016

         Appeal from the Criminal Court for Davidson County No. 2014-B-1812 Monte Watkins, Judge

         The defendant, Misty Ann Miller, appeals the trial court's denial of her Rule 35 motion to modify the sentences imposed against her pursuant to a negotiated plea deal. On appeal, the defendant argues the trial court abused its discretion in finding no new post-sentencing developments exist to justify a modification of her sentences. After our review, we affirm the decision of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Manuel B. Russ, Nashville, Tennessee, for the appellant, Misty Ann Miller.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Glenn Funk, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         The defendant was indicted by a Davidson County Grand Jury for two counts of aggravated child neglect and four counts of attempted aggravated child neglect against five of her minor children. On October 9, 2015, the defendant pled guilty to three counts of attempted aggravated child neglect, Class B felonies. Pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997) and as agreed upon in the plea deal, the defendant received a sentence of eighteen years in confinement as a standard offender with a release eligibility date of 35% for each conviction.[1] Id. at 709. The three sentences were to be served concurrently.

         After entering her guilty plea, the defendant filed a pro se motion to modify her sentences pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. The defendant alleged she was entitled to a reduction of her sentences based on the numerous mental and physical conditions from which she suffered. The defendant also stated she was remorseful.

         Within the Rule 35 motion, the defendant also alleged ineffective assistance of counsel regarding her guilty plea. Because the defendant was attempting to appeal her convictions, this Court dismissed the defendant's notice of appeal as waived pursuant to her guilty plea and advised the defendant to pursue her ineffective assistance of counsel claims under the Post-Conviction Procedure Act. On remand from this Court, the trial court appointed counsel to represent the defendant on her Rule 35 motion. The trial court then conducted an evidentiary hearing before ruling on the defendant's motion.

         The defendant testified at the hearing regarding her mental and physical conditions and the alleged inadequate care she has received since being incarcerated. The defendant stated her conditions require treatment outside of that available in the Tennessee Department of Correction. The defendant explained she has suffered from bipolar disorder, depression, and post-traumatic stress disorder, among other conditions, since the deaths of her parents and sister fifteen years ago. She also attributed her mental health conditions to years of sexual abuse, beginning at age six and occurring until age twenty-four. The defendant stated she received bi-weekly therapy treatment and took medication for her mental conditions prior to being incarcerated. The defendant further explained she suffered from fibromyalgia which she treated with medication prior to incarceration. In support of her motion, the defendant stated she believes she would receive better treatment if she were not incarcerated. The defendant also noted the Tennessee Department of Correction does not have the proper medication to treat her fibromyalgia. Finally, the defendant admitted to long-term drug use, but claimed she has been sober since her incarceration.

         On cross-examination, the defendant admitted the State was aware of her mental and physical conditions prior to entering her guilty plea. In fact, the defendant stated her mental and physical conditions were taken into consideration in negotiating her plea deal. The defendant admitted at the time of her arrest for the present convictions, she was taking cocaine and Lortab and was on probation for aggravated assault. Finally, the ...


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