            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                     Assigned on Briefs February 8, 2005

               STATE OF TENNESSEE v. JOANN WHITE POGUE

                 Direct Appeal from the Circuit Court for Marshall County
           Nos. 15733, 15734, 15735, 15736, 15737   William Charles Lee, Judge



                      No. M2004-00905-CCA-R3-CD - Filed June 3, 2005


The appellant, Joann White Pogue, pled guilty in the Marshall County Circuit Court to five counts
of delivery of morphine and five counts of selling morphine, Class C felonies. The trial court
merged each delivery conviction into a conviction for selling morphine and sentenced the appellant
to an effective nine-year sentence in the Department of Correction (DOC). On appeal, the appellant
claims the trial court improperly enhanced her sentences and improperly concluded that she was not
entitled to the presumption that she was a favorable candidate for alternative sentencing. We agree
that the trial court improperly applied enhancement factors and that the appellant was entitled to the
presumption. Upon review of the record and the parties’ briefs, we conclude that the trial court erred
in its sentencing determinations and remand for resentencing.

   Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and
                                       Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and J. C.
MCLIN , JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, and Michael J. Collins, Shelbyville, Tennessee, for the
appellant, Joann White Pogue.

Paul G. Summers, Attorney General and Reporter; and Brent C. Cherry, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

       At the appellant’s guilty plea hearing, the state presented the following factual account of the
crimes: On November 5, 12, 15, 17, and 19, 2002, agents from the Seventeenth Judicial District
Drug Task Force watched as the appellant arrived at the home of a confidential informant and sold
him morphine pills. The appellant was arrested and gave a statement on January 17, 2003. In the
statement, the appellant said that she had a prescription for morphine and began selling 30 milligram
and 80 milligram pills in 2001 for extra money. The appellant estimated that she had sold between
$5,000 and $10,000 worth of pills.

         At the sentencing hearing, Beth Ladner from the Tennessee Probation and Parole Department
testified that she prepared the appellant’s presentence report. The appellant gave a statement for the
report, and according to the statement, the appellant had been diagnosed with liver cancer, and her
doctors had prescribed morphine pills for her. The appellant began taking the drug intravenously
and selling the pills in order to pay her bills. Ms. Ladner testified that a drug task force agent also
gave a statement for the presentence report. In the statement, the agent stated that the appellant
admitted to him that she had sold morphine to at least twelve people and had sold about seven
hundred pills. Ms. Ladner testified that the appellant has prior convictions for disorderly conduct,
assault, and shoplifting and has been receiving disability payments since 1995. She stated that the
appellant had received an alternative sentence and drug treatment in the past. She related that the
appellant has three children and that all three were in prison.

        Detective Kevin Patin of the Lewisburg Police Department testified that he investigated the
death of a man named James Kelly and that an autopsy revealed Mr. Kelly died of a morphine
overdose. Mr. Patin talked with the appellant about Mr. Kelly’s death, and the appellant eventually
admitted to him that Mr. Kelly injected morphine at her home about nine hours before his death. On
cross-examination, Mr. Patin testified that he presented evidence against the appellant to a grand
jury, but the appellant was not indicted for Mr. Kelly’s death.

          The forty-nine-year-old appellant testified that a doctor diagnosed her with liver cancer three
years ago and prescribed morphine pills for her. She became addicted to the drug, began taking it
intravenously, began selling the pills, and made excuses to her doctor in order to get new morphine
prescriptions. Although the appellant was still taking the drug, she stopped abusing it when she went
to jail for the current offenses. She related that in addition to liver cancer, she suffered from hepatitis
C, sleep apnea, and diabetes. She stated that she took Zoloft for anxiety and insulin twice a day for
her diabetes. She stated that she currently was undergoing chemotherapy for her cancer and that
doctors expected her to live another five to ten years. The appellant related that she had not worked
in five years. On cross-examination, she acknowledged that Mr. Kelly “shot up” morphine in her
home before he died. She said that with the money she made from selling the morphine pills, she
helped some people pay their rent and electric bills, bailed some people out of jail, and donated
turkeys to her church. She acknowledged that she sold morphine pills out of her home and had
people selling and delivering the pills for her.

        The trial court found that the appellant was a Range I, standard offender. The trial court
applied enhancement factors (2), that the appellant has a “previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range”; (11), that the
appellant “had no hesitation about committing a crime when the risk to human life was high”; and
(17) that the “crime was committed under circumstances under which the potential for bodily injury


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to a victim was great.” See Tenn. Code Ann. § 40-35-114(2), (11), (17). It also applied
enhancement factor (16), that the appellant abused a position of private trust, on the basis that she
abused the doctor/patient relationship when she obtained the morphine prescriptions from her doctor.
See Tenn. Code Ann. § 40-35-114(16). For three of her convictions, the trial court enhanced her
sentences from the three-year minimum in the range for a Class C felony to four years. See Tenn.
Code Ann. 40-35-112(a)(3). For the remaining two convictions, the trial court enhanced the
sentences to five years. The trial court ordered that the four-year sentences be served concurrently
to each other and that the five-year sentences be served concurrently. However, because of the
appellant’s criminal history, the trial court ordered that the concurrent four-year sentences be served
consecutively to the five-year sentences for an effective sentence of nine years. See Tenn. Code
Ann. 40-35-115(b)(2). Regarding alternative sentencing, the trial court held that the appellant was
not entitled to the presumption that she is a favorable candidate for alternative sentencing. See Tenn.
Code Ann. § 40-35-102(6). The trial court then stated that in light of the appellant’s poor social
history and the need to deter others from committing similar crimes, the appellant should serve her
sentences in confinement.

                                             II. Analysis

        The appellant claims the trial court misapplied enhancement factors and improperly
determined that she was not entitled to the presumption that she was a favorable candidate for
alternative sentencing. The state concedes that the trial court misapplied enhancement factors (11),
(16), and (17) to the appellant’s sentences. However, it concludes that her four- and five-year
sentences were appropriate in light of the trial court’s proper application of enhancement factor (2)
for her prior criminal convictions and criminal behavior. We agree with the appellant that the trial
court misapplied three enhancement factors in this case. We also agree that she was entitled to the
presumption that she is a favorable candidate for alternative sentencing.

        Appellate review of the length, range, or manner of service of a sentence is de novo. See
Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers the
following factors: (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 her own
behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-102, -103,
-210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant
to demonstrate the impropriety of her sentences. See Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments. Moreover, if the record reveals that the trial court adequately considered
sentencing principles and all relevant facts and circumstances, this court will accord the trial court’s
determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

                                      A. Enhancement Factors

       The appellant and the state agree that the trial court misapplied enhancement factors (11),


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(16), and (17) in this case. Regarding factor (11), that the appellant had no hesitation about
committing a crime when the risk to human life was high, there was no evidence of any risk to
human life during the transactions that occurred between the appellant and the confidential
informant. As to enhancement factor (16), that the appellant abused a position of private trust, the
trial court held that it applied because “the position of patient trust . . . was abused in an effort or in
order to facilitate the situation of these crimes.” However, in determining whether to apply this
factor, the trial court should “look to see whether the offender formally or informally stood in a
relationship to the victim that promoted confidence, reliability, or faith.” State v. Kissinger, 922
S.W.2d 482, 488 (Tenn. 1996). No victim or such relationship existed in this case. Similarly,
regarding factor (17), that the crime was committed under circumstances in which the potential
bodily injury to a victim was great, no victim existed in this case. Thus, the trial court improperly
applied the three enhancement factors. The appellant also claims the trial court misapplied
enhancement factors under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). However,
in light of our supreme court’s recent holding in State v. Edwin Gomez, ___ S.W.3d ___, No.
M2002-01209-SC-R11-CD, 2005 Tenn. LEXIS 350, at *36-71 (Nashville, Apr. 15, 2005), petitions
to rehear filed, (Apr. 2005), the appellant’s Blakely argument must fail.

                             B. Presumption for Alternative Sentencing

        Next, the appellant claims the trial court improperly held that she was not a suitable candidate
for alternative sentencing. We agree. Tennessee Code Annotated section 40-35-102 provides,

                        (5) In recognition that state prison capacities and the funds to
                build and maintain them are limited, convicted felons committing the
                most severe offenses, possessing criminal histories evincing a clear
                disregard for the laws and morals of society, and evincing failure of
                past efforts at rehabilitation shall be given first priority regarding
                sentencing involving incarceration; and

                       (6) A defendant who does not fall within the parameters of
                subdivision (5) and 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 options in the absence
                of evidence to the contrary.

In the present case, the appellant was convicted of five Class C felonies. Nevertheless, the court held
that she was not entitled to the presumption that she is a favorable candidate for alternative
sentencing for two of her convictions. The trial court stated,

                       This Court is of the opinion -- however, I have not seen any
                case law that squarely addresses this proposition, since the Criminal
                Sentencing Reform Act of 1989 has been passed. But I have long
                since felt that the presumption that one enjoys does not -- the


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               Defendant does not enjoy that in every case where the Defendant
               stands before the Court with multiple convictions. Surely, for
               example, if a person has broken into 25 or 30 different homes, that
               although they might have the presumption on the first home and
               perhaps the second home or third home, that the Defendant surely is
               not presumed to be a candidate for alternative sentencing on home
               Number 35.

               ....

                       And given that the Court has found that the Defendant lacks
               the presumption which she enjoyed in all of her cases, then the Court
               denies her request for alternative sentencing.

               ....

                       In this case, since it is a close question of law, the Court will
               allow the Defendant to remain upon an appeal bond in the same
               amount that has been posted by the Defendant as her appearance bond
               if her surety will remain upon it.

                       The Court does that because it would be an injustice if the
               Court is not correct concerning it’s interpretation of the law, given the
               fact that the Defendant’s life expectancy is not as great as others to
               incarcerate her pending the appeal. So perhaps we will get an answer
               to the Court’s question concerning in which case the person loses
               their presumption.

         Despite the trial court’s misgivings, Tennessee Code Annotated § 40-35-102(6) plainly states
that if a defendant is convicted of Class C, D, or E felonies and does not fall within the parameters
of subsection (5), then the defendant is entitled to the presumption. This is true regardless of how
many convictions are involved. See, e.g., State v. Zeolia, 928 S.W.2d 457 (Tenn. Crim. App. 1996)
(noting that defendant convicted of four counts of arson, a Class C felony, was entitled to the
presumption that he was a favorable candidate for alternative sentencing). Given that all of the
appellant’s convictions were Class C felonies, she was entitled to the presumption that she is a
favorable candidate for alternative sentencing for all of them. Thus, this case must be remanded to
the trial court for resentencing.




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                                          III. Conclusion

        Upon review of the record and the parties’ briefs, we affirm the convictions; however, finding
error in the trial court’s sentencing determinations, we remand for resentencing.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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