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State v. Barrett

Court of Criminal Appeals of Tennessee, Knoxville

August 20, 2019

STATE OF TENNESSEE
v.
MIMI BARRETT

          Assigned on Briefs May 30, 2019

          Appeal from the Criminal Court for Sullivan County No. S66030 James F. Goodwin, Jr., Judge

         Mimi Barrett, Defendant, pled guilty to three counts of sale of a Schedule III controlled substance within a drug-free zone (counts one, three, and five), three counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two, four, and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven). The trial court ordered Defendant to serve concurrent sentences of two years in the Tennessee Department of Correction for each conviction. On appeal, Defendant argues that the trial court erred by ordering her to serve her sentence in the Tennessee Department of Correction because the trial court incorrectly determined that her convictions under the Drug-Free School Zone Act ("DFSZ Act") made her ineligible for community corrections. After a thorough review of the facts and applicable case law, we conclude that the trial court properly denied community corrections on the ground that Defendant was convicted under the Drug-Free School Zone Act. We affirm the judgments of the trial court.

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

          William Kennedy, Blountville, Tennessee, for the appellant, Mimi Barrett.

          Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Peter Filetti, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Factual and Procedural Background

         On January 27, 2016, the Sullivan County Grand Jury indicted Defendant and Co-defendant, Robert Diggs, with three counts of sale of a Schedule III controlled substance within a drug-free zone (counts one, three, and five), three counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two, four, and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven).

         On February 2, 2018, Defendant entered an open guilty plea to all seven counts of the indictment with Defendant applying for judicial diversion. Under the terms of the plea agreement, count two merged with count one, count four merged with count three, and count six merged with count five. The trial court accepted Defendant's guilty plea and scheduled a sentencing hearing.

         On August 24, 2018, the trial court held a sentencing hearing. Defendant testified that she lived with Co-defendant Diggs and his minor son. She explained that she received disability payments for a mental disability from PTSD and anxiety. Defendant testified that she regretted her actions that were the basis of the current offenses and that she was "really scared" about the prospect of receiving a sentence of confinement. She stated that, if the trial court ordered her to serve her sentence on community corrections, she would be able to complete the requirements of the program.

         On cross-examination, Defendant agreed that she received judicial diversion for a theft conviction in 2013. She also agreed that she violated the terms of her probation for that conviction, and the trial court revoked her diversion. Defendant asserted that she completed other sentencing requirements for her previous theft conviction. She agreed that she was still serving a probated sentence for the prior theft conviction. The trial court deferred from announcing its ruling until a later hearing.

         On August 31, 2018, the trial court addressed the factors set out in State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998), and concluded that in Defendant's case, the factors supported the denial of judicial diversion. The trial court also addressed ...


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