Court of Criminal Appeals of Tennessee, Knoxville
Session June 27, 2017
from the Criminal Court for Hawkins County No. CC15CR160 Alex
E. Pearson, Judge
Defendant, Robin Kathern Burton, was indicted by a Hawkins
County grand jury of one count of possession of a controlled
substance with the intent to deliver and received a sentence
of four years, with six months to be served in confinement.
In this appeal as of right, the Defendant argues that the
trial court abused its discretion in ordering her to serve a
portion of her sentence in confinement. Upon review, we
affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Baird, III, Rogersville, Tennessee, for the Appellant, Robin
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Charme Allen,
District Attorney General; and Courtney N. Orr, Assistant
District Attorney General, for the appellee, State of
Camille R. McMullen, J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr.
CAMILLE R. McMULLEN, JUDGE
December 7, 2015, the Defendant was charged with
"knowingly possessing with the intent to deliver one
hundred sixteen (116) tablets of Oxycodone, a Schedule II
controlled substance; a Class C felony in violation of T.C.A.
[section] 39-17-417(a)(4), (c)(2)(A)." The affidavit of
complaint stated that:
On March 16, 2015, affiant along with other officers of the
Hawkins County Sheriff's Office Narcotics Unit executed a
search warrant at the residence of [the Defendant], 1171 Old
Stage Rd[.], Hawkins County, Tennessee. During the search,
officers located and seized (3) three prescription bottles in
the residence for [the Defendant] that contained round blue
tablets, believed to be Oxycodone (schedule II). Each bottle
contained different quantities of tablets for an approximate
total of 116 dosage units. Also seized from the residence was
a LG cell phone and paperwork from a medical office. [The
Defendant] was arrested and transported to the Hawkins County
Jail. During an interview, after Miranda, [the Defendant]
made several verbal comments indicating her involvement in
the illegal drug trade.
a jury trial, the Defendant was convicted as charged. The
only evidence introduced at the June 24, 2016 sentencing
hearing was the presentence report prepared by the Department
of Correction. The trial court was advised by counsel that
the Defendant had recently undergone surgery to remove lymph
nodes from her arm and side and that she had scheduled
follow-up appointments with her doctors to determine whether
she would require any radiation treatments. Prior to imposing
the sentence, the trial court acknowledged that the
Defendant's "lack of prior criminal history"
was emphasized during the trial and that "certainly her
presentence report bears that out." The court further
recognized that the Defendant had previously been charged
with worthless checks, which she paid. Moreover, the trial
court noted that there was no "judgment of conviction
associated" with these checks. Although the State did
not claim the Defendant's sentence should be supported by
any specific enhancement factors, it urged the trial court to
impose "some incarceration" because the offense
involved a Schedule II narcotic, which had become an
"epidemic" in the state and community.
the hearing, the court imposed a four-year sentence, with six
months to be served in confinement and the remainder to be
served "on house arrest or Community Corrections."
On July 29, 2016, defense counsel advised the court that the
Defendant had received a "good bill of health"
during her last visit to her medical provider. The judgment
was entered the same day, and the Defendant filed a timely
notice of appeal on August 8, 2016.
appeal, the Defendant argues that the trial court abused its
discretion in denying alternative sentencing or probation.
The Defendant specifically relies on the following mitigating
factors: her possible cancer, absence of a prior criminal
record, graduation from high school, classes taken at Walters
State Community College, and gainful employment. She also
claims the following factors support a sentence of probation:
a lack of criminal history and the fact that there was no