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State v. Burton

Court of Criminal Appeals of Tennessee, Knoxville

September 7, 2017

STATE OF TENNESSEE
v.
ROBIN KATHERN BURTON

          Session June 27, 2017

         Appeal from the Criminal Court for Hawkins County No. CC15CR160 Alex E. Pearson, Judge

         The 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.

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

          R.B. Baird, III, Rogersville, Tennessee, for the Appellant, Robin Kathern Burton.

          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 Tennessee.

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

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On 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.

         Following 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."[1] 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.

         Following 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.

         ANALYSIS

         On 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 ...


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