         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     May 21, 2002 Session

                     STATE OF TENNESSEE v. JOHN BRIGGS

                  Direct Appeal from the Criminal Court for Sullivan County
                             No. S44818    R. Jerry Beck, Judge



                                 No. E2001-01933-CCA-R3-CD
                                      November 13, 2002

The appellant, John Briggs, a pharmacist, pled guilty in the Sullivan County Criminal Court to
sixteen counts of unlawfully dispensing a controlled substance. The trial court sentenced the
appellant to a total effective sentence of twenty years incarceration in the Tennessee Department of
Correction, with all but eight years to be served on probation. On appeal, the appellant argues that
the trial court erred in denying full probation. Upon review of the record and the parties’ briefs, we
affirm the judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
JOHN EVERETT WILLIAMS, JJ., joined.

R. Wayne Culbertson, Kingsport, Tennessee, for the appellant, John Briggs.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                       I. Factual Background
                On February 9, 2001, the appellant pled guilty to sixteen counts of unlawfully
dispensing a controlled substance, Class D felonies. Tenn. Code Ann. § 53-11-401(a)(1) (1997). The
appellant, a pharmacist, owned Stone Drive Pharmacy in Kingsport. Between February 1, 1997, and
May 6, 2000, the appellant filled “over eleven hundred (1100) prescriptions that were not
authorized,” dispensing a total of “approximately a hundred and forty thousand (140,000) pills” to
at least sixteen different individuals. Specifically, the charges alleged the following offenses:

                       Name         Number of Falsified Prescriptions         Pills Dispensed
       Count 1:        James Greene      368                                  70,000 Darvocet
                                                       201                                  20,000 Lortab
         Count 2:          Judy Greene                 17                                   475 Lortab
                                                       9                                    540 Darvocet
         Count 3:          Phil Rader                  28                                   3,200 Darvocet
         Count 4:          Jeffrey Kilgore             51                                   3,060 Lortab
         Count 5:          Bobby Moore                 40                                   1,600 Lortab
         Count 6:          Henry Anderson              73                                   1,095 Diazepam
         Count 7:          Marilyn Mullins             17                                   1,340 Diazepam
         Count 8:          Peggy Sanders               36                                   1,620 Diazepam
         Count 9:          Dean Hensley                10                                   1,000 Lorazepam
         Count 10:         Thomas Ketron               41                                   4,100 Lorazepam
         Count 11:         Jonathan Hughey             3                                    1,440 Lortab
         Count 12:         Patty Street Owens          36                                   2,540 Butalbital
         Count 13:         Cora Dockery                60                                   1,800 Alprazolam
         Count 14:         Mamie Trent                 90                                   9,000 Lorcet
         Count 15:         Judith Gilreath             29                                   3,300 Propoxyphene
         Count 16:         Traci Trent                 –                                    – Darvocet

All of the pills dispensed were either Schedule III or Schedule IV substances.1 The appellant’s wife,
who also worked at the pharmacy, assisted in the dispensation of the controlled substances. The plea
agreement stipulated that the appellant would be sentenced as a standard Range I offender, with a
release eligibility of thirty percent (30%), and would receive a sentence of four years incarceration
on each count. Furthermore, the agreement provided that the sentences on counts one through five
would run consecutively; the sentences on counts six through sixteen would run concurrently with
each other and with count five for a total effective sentence of twenty years. The plea agreement
provided that the decision regarding alternative sentencing would be determined by the trial court.
Additionally, the appellant was fined one thousand dollars ($1,000) on each count for a total fine of
sixteen thousand dollars ($16,000).

                 On July 13, 2001, the trial court held a probation hearing. Both the State and the
appellant relied on the information presented at the guilty plea hearing and on the information
contained in the appellant’s presentence report. Additionally, the appellant presented fifty-seven
letters and petitions from members of the community asking the court for leniency in sentencing the
appellant. Moreover, the appellant informed the court that, because of fines and forfeitures, he had
sold his business and paid ninety-seven thousand, four hundred and twenty dollars ($97,420) into
the registry of the court. As a condition of his plea, the appellant had also forfeited his pharmacist’s
license.




         1
          The appellant illegally issued the following co ntrolled substances: D arvocet, Schedule IV ; Lortab, Schedule
III; Diazepam, Schedule IV; Lorazepam, Schedule IV; Butalbital, Sc hedule IV ; Alpro zolam , Schedule IV ; Lorcet,
Schedule III; and Propoxyphene, Schedule IV.

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                  In examining the appellant’s suitability for probation, the trial court acknowledged
that the appellant was presumed to be a favorable candidate for alternative sentencing. As a positive
factor, the trial court recognized that, similar to many professionals, the appellant had been involved
in service to his community. Further, the appellant possessed no previous criminal record, was a
deacon at the largest church in Kingsport, enjoyed the support of his family and the community,
cooperated with the police, and underwent rehabilitation for his substance addiction. However, the
trial court noted the need for deterrence and the need to avoid depreciating the seriousness of the
offense. Accordingly, the trial court denied probation for the appellant on counts one and two, but
granted the appellant probation on counts three through sixteen, resulting in a total of eight years in
confinement with release eligibility after service of thirty percent (30%) of the sentence. The
appellant timely appealed this ruling.

                                             II. Analysis
                 This court will review the appellant’s challenge to the manner of service of his
sentences de novo. Tenn. Code Ann. § 40-35-401(d) (1997). However, because we conclude that
the trial court carefully and thoroughly considered the sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of correctness.
Id.; State v. Clabo, 905 S.W.2d 197, 205 (Tenn. Crim. App. 1995). In any event, the burden is on
the appellant to demonstrate the impropriety of his sentences. Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments; see also State v. Griffin, 914 S.W.2d 564, 567 (Tenn. Crim.
App. 1995).

                We must consider the following factors in the course of our de novo review: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the parties
on enhancement and mitigating factors; (6) any statement by the appellant in his own behalf; and (7)
the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103
(1997), -210 (Supp. 2001); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).

                On appeal, the appellant asks this court to determine:
                (1) whether the trial court committed reversible error in sentencing by
                denying the appellant’s request for probation or alternative
                sentencing;

                (2) whether the trial court committed reversible error in sentencing by
                enhancing the appellant’s sentence based upon the presence of the
                facts and elements of the offenses charged;

                (3) whether the trial court committed reversible error in sentencing by
                denying probation for deterrence purposes; and




                                                  -3-
                (4) whether the trial court committed reversible error in sentencing by
                not properly balancing all mitigation factors by failing to observe that
                any applicable enhancement factor was offset by mitigation factors.

                The appellant’s first and third issues center around concerns that the trial court erred
when it failed to grant full probation on all counts. Specifically, the appellant contends that the trial
court erred in denying alternative sentencing. Respectfully, we note that the trial court granted the
appellant an alternative sentence when it granted the appellant probation on fourteen of the sixteen
counts.

                Initially, we recognize that an appellant is eligible for probation if the sentence
actually imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a) (1997). Moreover, an
appellant who is an especially mitigated or standard offender convicted of a Class C, D, or E felony
is presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6).
In the instant case, the appellant is a standard Range I offender convicted of Class D felonies;
therefore, he is presumed to be a favorable candidate for alternative sentencing. However, this
presumption may be rebutted by “evidence to the contrary.” State v. Zeolia, 928 S.W.2d 457, 461
(Tenn. Crim. App. 1996). The following sentencing considerations, set forth in Tennessee Code
Annotated section 40-35-103(1), may constitute “evidence to the contrary”:
                (A) Confinement is necessary to protect society by restraining a
                defendant who has a long history of criminal conduct;

                (B) Confinement is necessary to avoid depreciating the seriousness of
                the offense or confinement is particularly suited to provide an
                effective deterrence to others likely to commit similar offenses; or

              (C) Measures less restrictive than confinement have frequently or
              recently been applied unsuccessfully to the defendant.
Zeolia, 928 S.W.2d at 461.

                “The determination of whether the appellant is entitled to an alternative sentence and
whether the appellant is entitled to full probation are different inquiries.” State v. Boggs, 932 S.W.2d
467, 477 (Tenn. Crim. App. 1996). An appellant seeking full probation bears the burden of
establishing his suitability for full probation, regardless of whether he is entitled to the statutory
presumption favoring alternative sentencing. Id.; see also Tenn. Code Ann. § 40-35-303(b). To
prove his suitability, the appellant must establish that granting full probation will “‘subserve the ends
of justice and the best interest of both the public and the [appellant].’” State v. Dykes, 803 S.W.2d
250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 8
(Tenn. 2000). Moreover,
                [i]n determining one’s suitability for full probation, the court may
                consider the circumstances of the offense, the defendant’s potential
                or lack of potential for rehabilitation, whether full probation will
                unduly depreciate the seriousness of the offense, and whether a


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               sentence other than full probation would provide an effective
               deterrent to others likely to commit similar crimes.
Boggs, 932 S.W.2d at 477. While recognizing the appellant’s lack of criminal history, the trial court
nonetheless determined that the seriousness of the offense and the deterrent effects of incarceration
warranted a denial of full probation.

                In State v. Hooper, 29 S.W.3d 1 (Tenn. 2000), our supreme court specifically noted
five factors for consideration when denying probation solely upon the basis of deterrence:
                1) Whether other incidents of the charged offense are increasingly
                present in the community, jurisdiction, or in the state as a whole.
                ....
                2) Whether the defendant’s crime was the result of intentional,
                knowing, or reckless conduct or was otherwise motivated by a desire
                to profit or gain from the criminal behavior.
                ....
                3) Whether the defendant’s crime and conviction have received
                substantial publicity beyond that normally expected in the typical
                case.
                ....
                4) Whether the defendant was a member of a criminal enterprise, or
                substantially encouraged or assisted others in achieving the criminal
                objective.
                ....
                5) Whether the defendant has previously engaged in criminal conduct
                of the same type as the offense in question, irrespective of whether
                such conduct resulted in previous arrests or convictions.
Id. at 10-12. A trial court is not limited to these five considerations “provided that (1) the sentencing
court states [any] additional factors on the record with specificity, and (2) the presence of these
additional factors is supported by at least some proof.” Id. at 12.

                 In the instant case, based upon the cases heard daily by the court, the trial court noted
that there was a drug problem in the community. This general comment alone is not sufficient to
deny probation based solely upon deterrence. See State v. Fields, 40 S.W.3d 435, 442 (Tenn. 2001).
However, the trial court also noted that the appellant was a member of a criminal enterprise in which
his wife, a co-defendant, was also involved. See State v. Timothy C. Jewell, Jr., No. W2000-00998-
CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 371, at *12 (Jackson, May 15, 2001). Additionally,
we observe that the charged criminal conduct occurred over a period of at least three years and
involved a voluminous number of pills, specifically 90,000 pills to one individual, which facts also
demonstrate a criminal enterprise. See State v. Glenda Eva Tilley, No. E2001-00264-CCA-R3-CD,
2001 Tenn. Crim. App. LEXIS 601, at *12 (Knoxville, Aug. 9, 2001). Furthermore, the numerous
supportive letters from members of the community demonstrate that the appellant’s case was well-
known in the community, suggesting that the case received substantial publicity. Notably, several
of the letters indicate that the appellant’s case was publicized in local newspapers; specifically, one


                                                   -5-
of the letters mentioned that the appellant’s case “ma[de] the front page news.” Accordingly, the trial
court did not err in considering the deterrent effect of confinement in denying the appellant full
probation.

                Regardless, even if the trial court erred in applying the deterrence factor, it
nevertheless correctly denied total probation to avoid depreciating the seriousness of the offense.
This court has previously concluded that the nature and circumstances underlying the criminal
conduct may alone give rise to the denial of probation. Tenn. Code Ann. § 40-35-210(b)(4). See
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). When imposing confinement
based upon the seriousness of the offense, the trial court must first determine if “‘the circumstances
of the offense as committed [are] especially violent, horrifying, shocking, reprehensible, offensive,
or otherwise of an excessive or exaggerated degree.’” Zeolia, 928 S.W.2d at 462 (quoting (State v.
Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995)).

                The appellant pled guilty to a violation of Tennessee Code Annotated section 53-11-
401(a)(1) (1997), which statute provides that it is unlawful for a pharmacist
                to distribute or dispense a controlled substance in violation of § 53-
                11-308 or to distribute or dispense any controlled substance for any
                purpose other than those authorized by and consistent with such
                person’s professional or occupational licensure or registration law, or
                to distribute or dispense any controlled substance in a manner
                prohibited by such person’s professional or occupational licensure or
                registration law.
Tennessee Code Annotated section 53-11-308(c) (1997) prohibits the dispensation of Schedule III
or Schedule IV drugs by a pharmacist without a valid prescription. Thus, the appellant would have
been guilty of an offense had he falsified only one prescription for each of the sixteen people named
in the information. However, “[i]n considering the circumstances of the offense[s], the court may
go beyond the negotiated plea and consider the ‘true nature’ of the crime[s].” State v. Biggs, 769
S.W.2d 506, 507 (Tenn. Crim. App. 1988) (citing State v. Hollingsworth, 647 S.W.2d 937, 939
(Tenn. 1983)). In the instant case, the trial court noted:
                But significant to the Court’s decision here today, that the total of
                those figures alone was approximately a hundred and forty thousand
                (140,000) pills in the sixteen (16) various and independent charges
                that were involved. So this appears to be extraordinary. . . . Now,
                what happened when these hundred and forty thousand (140,000)
                pills were released into the community to individuals, whether they
                be suffering from pain, as explained by [the appellant] in his
                statement to the Probation Officer, you do have a hundred and forty
                [thousand (140,000)] pills going out of control into the community
                without the supervision of the Tennessee Department of Health or the
                . . . Board of Pharmacy. So that does create a substantial danger to
                the community because we don’t know what these people – they
                might have taken them, which could have been a detriment to them,


                                                 -6-
                they may have, in order to obtain income, sold them to other people,
                could have, you know, the potentialities are endless of where these
                pills could have gone because they clearly went out of control of the
                drugstore and the licensed pharmacist when they got out. So the
                nature of this offense appears to be in the extreme.
In sum, over the course of three years, the appellant dispensed an extraordinary amount of pills
through a large number of falsified prescriptions. See State v. James Randolph Bradford, No.
01C01-9004-CC-00101, 1991 Tenn. Crim. App. LEXIS 296, at **5-6 (Nashville, Apr. 18, 1991).
The trial court found that the appellant was remorseful and that he had enrolled in a rehabilitation
program to fight his substance addiction; however, the court nevertheless found that the appellant
had a “sustained intent to violate the law.” This finding is supported by the appellant’s distribution
of 140,000 pills to sixteen individuals over a three year period. Again, we note that the trial court
gave careful consideration to the appellant’s sentencing. We agree with the trial court that the
circumstances underlying the appellant’s convictions were of an excessive or exaggerated degree.
See State v. Charles Chesteen, No. E1999-00910-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 455,
at **31-32 (Knoxville, June 8, 2000). Accordingly, we conclude that the trial court did not err in
denying the appellant full probation.

                The appellant also contends that the trial court erred in enhancing the appellant’s
sentence “based upon the presence of the facts and elements of the offenses charged.” The appellant
and the State entered into a plea agreement which was approved by the trial court. The agreement
specifically provided the sentence the appellant was to receive for each conviction. Thus, the record
does not reflect that the trial court “enhanced” any sentence based upon facts which were elements
of the charged offenses.

               Finally, the appellant alleges that the trial court improperly balanced the enhancement
and mitigating factors. However,
               [t]he appellant's sentence is not determined by the mathematical
               process of adding the sum total of enhancing factors present then
               subtracting from this figure the mitigating factors present for a net
               number of years. Rather, the weight to be afforded an existing factor
               is left to the trial court's discretion so long as the court complies with
               the purposes and principles of the 1989 Sentencing Act and its
               findings are adequately supported by the record.
Boggs, 932 S.W.2d at 475- 476. We conclude that the trial court did not err in its application of the
enhancement or mitigating factors.

                                       III. Conclusion
               Based upon the foregoing, we affirm the judgment of the trial court.



                                                       ___________________________________


                                                 -7-
      NORMA McGEE OGLE, JUDGE




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