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State v. Lottie

Court of Criminal Appeals of Tennessee, Nashville

November 1, 2019

STATE OF TENNESSEE
v.
WILBERT LAMARI LOTTIE, III

          Assigned on Briefs October 15, 2019

          Appeal from the Circuit Court for Bedford County No. 18546 Forest A. Durard, Jr., Judge.

         Wilbert Lamari Lottie, III, ("Defendant") pled guilty, as a Range I standard offender, to one count each of possession of 0.5 grams or more of cocaine with intent to sell and possession of 0.5 grams or more of cocaine with intent to deliver and received a ten-year community corrections sentence. Six months into his sentence, the trial court issued a violation of community corrections warrant, which alleged that Defendant had tested positive for cocaine. Following a hearing, the trial court found that Defendant had violated the terms of his community corrections sentence. The trial court revoked Defendant's community corrections sentence and resentenced Defendant to twelve years to serve in the Tennessee Department of Correction. On appeal, Defendant argues that his sentence is excessive and that the trial court "did not follow the established sentencing guidelines." Upon review, we affirm the judgment of the trial court.

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

          Thomas E. Parkerson, Murfreesboro, Tennessee, for the appellant, Wilbert Lamari Lottie, III.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Robert J. Carter, District Attorney General; and Mike Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Factual and Procedural Background

         On April 17, 2017, the Bedford County Grand Jury indicted Defendant for possession of 0.5 grams or more of cocaine with intent to sell and possession of 0.5 grams or more of cocaine with intent to deliver, Class B felonies. On July 24, 2017, Defendant entered an open guilty plea to the indictment. At a sentencing hearing conducted November 20, 2017, the trial court merged his convictions and sentenced Defendant, as a Range I standard offender, to ten years to serve on community corrections. In its sentencing order, the trial court provided the following summary of relevant facts:

On January 14, 2014, [D]efendant was stopped by agents of the 17th Judicial District Drug Task Force. Various articles were found either on [D]efendant's person or in his vehicle. These included, among other items, laptops, a Kindle Fire, a pistol, cash and approximately [five] grams of cocaine. Once at the jail [D]efendant voluntarily produced slightly less than [two] grams of marijuana. Immediately before booking [D]efendant agreed to assist agents with further activities and investigations involving the drug trade.

         In sentencing Defendant to community corrections, the trial court explained that it did so, in part, because it appeared that Defendant had "turned himself around" in the three years between his arrest and guilty plea. The trial court found that Defendant had "a terrible misdemeanor record back to about 1998[, ]" as well as numerous prior probation violations. The trial court also noted that Defendant had "a long history of drug and alcohol abuse despite being in Cumberland Heights and successfully completing their course." The trial court considered, as enhancement factors, that Defendant had "a previous history of criminal convictions or behavior" and that he "failed to comply with conditions involving release into the community." As for mitigating factors, the trial court found that Defendant's conduct "neither caused nor threatened serious bodily injury" and that Defendant had arguably become a "productive citizen" and "assisted law enforcement with their investigations." The trial court said that it placed a "greater emphasis on what [D]efendant ha[d] accomplished during the interim between his arrest in January, 2014 and indictment in April, 2017" but noted that "[o]n paper and based on his prior history alone, [D]efendant is deserving of a 'to serve' maximum sentence."

         On June 19, 2018, Defendant was arrested on a violation of community corrections warrant. At a subsequent hearing, Amanda Morrow testified that she was a community corrections case officer and that she supervised Defendant on community corrections. Ms. Morrow explained that, on May 7, 2018, Defendant tested positive for cocaine use during a random drug screen. Ms. Morrow said that the test was sent to an outside lab for confirmation, and she provided a lab report and lab affidavit as an exhibit to her testimony. Ms. Morrow testified that Defendant had been placed on community corrections on November 20, 2017, and that he had reported twice weekly and passed fifteen prior drug screens. Ms. Morrow agreed that Defendant was working and paying child support. Ms. Morrow explained that, while on community corrections, Defendant completed a drug and alcohol assessment. Ms. Morrow said that the assessment recommended treatment, which was discussed with Defendant, but that Defendant declined treatment. Ms. Morrow testified that, in her experience, when an offender with a history of drug abuse refused drug treatment, he was "unlikely to be rehabilitated." Ms. Morrow agreed that Defendant had spinal surgery "several months back."

         Defendant testified that he was thirty-eight years old, had four children, and that he had worked as a maintenance supervisor while on community corrections. Defendant stated that he was current on paying his child support. Defendant explained that, after being placed on community corrections, he had cervical spine surgery and was prescribed various pain medications. Defendant testified that he had stopped abusing drugs for "quite a few years" before his surgery. However, he relapsed and began using cocaine after he ran out of his prescription medication following his surgery. Defendant testified that he used cocaine the night before his drug screen with Ms. Morrow. He agreed, however, that he told the trial court at a bond hearing on the violation warrant that he failed the drug screen because he picked up some cocaine that a friend left on his table ...


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