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August 1, 1996



As Corrected August 9, 1996.

Jerry L. Smith, Judge, Concur: David G. Hayes, Judge, William S. Russell, Special Judge

The opinion of the court was delivered by: Smith

Appellant Thilo Timothy Newman entered a plea of guilty to six counts of passing a forged prescription in violation of Tenn. Code Ann. § 53-11-402 (1991). A sentencing hearing was held in February of 1995 after which the trial Judge sentenced Appellant to six concurrent sentences of two years of probation with one of several conditions being that he serve a mandatory 60-day jail sentence. On appeal, Appellant asserts that he, as a presumptively appropriate candidate for a non-incarcerative sentence, should have been granted full probation.

For the reasons that follow, we modify Appellant's sentence on each count to one year of Community Corrections followed by one year of probation.

The primary focus of the sentencing hearing was the testimony of Appellant during which he candidly acknowledged that he had broken the law by using photocopies of legitimate prescriptions to obtain large quantities of the narcotic Percocet. Appellant testified that he began taking Percocet for lower back pain at the prescribed dosage of a couple of pills a day and then increased his intake to twenty to thirty per day. Appellant stated that he took the large doses "for a period of up to three months, when [he] was pretty much out of control, regarding the pills." He admitted that he was addicted and "strung out" during this period.

Appellant expressed deep regret for what he had done saying, "I never meant to hurt anybody. I'm very upset that that happened, but I was out of control; and all I cared about, my whole life, revolved around these painkillers." Appellant made it clear to the court that he was not off these painkillers. Though he had ceased his Percocet intake completely for approximately six months following his arrest, by the time of the sentencing hearing, he had resumed taking Percocet pills at a prescribed dosage of ten a day under the care of the Vanderbilt Pain Center and the Tennessee Spine Center. He testified that this was the only medication that relieved his pain and though he was considering surgery, he had reservations about its rate of success.

Throughout the hearing, the trial Judge evinced a suspicion that Appellant had obtained the drugs for the purpose of reselling them. Upon learning of the amount of Percocet purchased, the Judge stated "you can work a pretty good street comer with that kind of quantity, too." Again, at the close of the hearing, the trial Judge interrupted the defense attorney's remark that it was unfair for the State to equate Appellant with a drug dealer by stating "unless . . . of course, what he was doing was selling these things . . . and, then, he is a drug dealer." However, Appellant insisted that he procured the drugs for himself only. More significantly, the district attorney general asserted that the State had no evidence indicating Appellant had sold the drugs.

After the court expressed its dissatisfaction with Appellant's evidence as to his present back condition and drug use, a subsequent hearing was held in which Appellant produced a letter from his physician at the Tennessee Spine Center documenting Appellant's condition as L5-S1 spondylolisthesis with significant degenerative changes in his spine. The letter documented the fact that Appellant was scheduled for surgery the following month. Another letter from a doctor at Vanderbilt described Appellant's condition as low back pain particularly of a musculoskeletal nature.

The remainder of the testimony at the hearing focused on Appellant's occupation. He testified that he had gone to the Munich University Film School in Germany for a masters degree in cinematography and finished film school at UCLA. Appellant told the court that he was a screenwriter and the president of a holding corporation for a film company. He referred to a screenplay he had written called "Project Mankind" and stated he was currently negotiating with Stephen Spielberg to direct the production of the screenplay. On cross-examination, Appellant admitted that no producer had yet agreed to back his screenplay.

The only witness besides Appellant was William Halbert, a friend and business partner of Appellant. Mr. Halbert corroborated Appellant's testimony about the business they shared and about the screenplay "Project Mankind." He was optimistic about the future of the business and contradicted the State's attorney when he suggested that Appellant was currently experiencing some financial problems.

The trial court seemed to share in the State's concern that Appellant's business was not legitimate. The trial Judge made the statement that "you can dream about hitting the lottery or making a movie, and you can dream on; but I think it's time to get a job." The trial Judge added that he "want[s Appellant] to have a job. . . . If it's at the carwash or at the Krystal, . . . he needs to put in eight hours a day, forty hours a week awhile, if he's going to be put on probation." In response to the court's skepticism, Appellant introduced a copy of his 1993 tax return showing an adjusted gross income of $106,136 as well as bank statements indicating that an average of $13,000 was deposited in his account each month from July of 1994 through February of 1995, the time the hearing was held.

At the close of the hearing, the trial Judge made it clear that he did not believe much of Appellant's testimony. He suggested that Appellant spend some time in a drug counseling program at the Samaritan Center--30 days in-patient and 60 days in a half-way house. At Appellant's request, the court recessed for Appellant to decide if he wanted to go along with the Court's suggestion or, in the alternative, to await the imposition of a sentence that the Court might impose. Appellant rejected this offer and the judgment reflects that the Court imposed for each count a sentence of two years of probation with the following conditions: (1) that Appellant serve 60 days at 100% day for day; (2) that Appellant obtain full-time salaried employment; (3) that Appellant be under supervised probation; (4) that Appellant be subject to random drug screens; and (5) that Appellant complete eight hours per month of public service work.

As stated above, Appellant has asked this court to modify his sentence to a term of full probation and also to vacate the condition that he obtain full-time salaried employment. For an appeal such as this challenging the manner of service of a sentence, this Court conducts a de novo review with a presumption that the determination of the trial court was correct. Tenn. Code Ann. ยง 40-35-401(d) (1990). However, the presumption of correctness only applies when the record demonstrates that the trial court properly considered the relevant sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As Appellant points out, the trial court has failed to include in the record his reasons for denying Appellant a non-incarcerative sentence. Accordingly, there can be no presumption of correctness and review of ...

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