                                                                                       08/16/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs July 18, 2018

            STATE OF TENNESSEE v. NICHOLAS ZAMARRON

               Appeal from the Criminal Court for Davidson County
                      No. 2016-B-552    Steve Dozier, Judge


                            No. M2017-02123-CCA-R3-CD


The Defendant, Nicholas Zamarron, pleaded guilty to conspiracy to deliver 0.5 gram or
more of cocaine and to three counts of possession with the intent to deliver 0.5 gram or
more of cocaine. See T.C.A. § 39-17-417 (2014). He received a total effective sentence
of ten years’ incarceration. On appeal, he contends that the trial court erred by denying
alternative sentencing. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., J., JOHN EVERETT WILLIAMS, P.J., joined.

Manuel B. Russ (on appeal) and Jessica Van Dyke (at trial), Nashville, Tennessee, for the
appellant, Nicholas Zamarron.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Glenn Funk, District Attorney General; and Ed Ryan, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

       This case arises from the Defendant’s December 2014 arrest in connection with a
drug trafficking organization in Nashville. The Defendant was indicted for conspiracy to
deliver 300 grams or more of cocaine, three counts of possession with intent to deliver
300 grams or more of cocaine, and money laundering. He pleaded guilty to one count of
conspiracy to deliver 0.5 gram or more of cocaine and to three counts of possession with
intent to deliver 0.5 gram or more of cocaine. Pursuant to the plea agreement, the
Defendant received concurrent ten-year sentences and the manner of service was to be
determined by the trial court. The guilty plea hearing transcript is not included in the
appellate record.
        At the September 29, 2017 sentencing hearing, the presentence report was
received as an exhibit and reflected that the Defendant had previous convictions for
aggravated assault, three drug-related offenses, and making a false report. The report
reflected that the Defendant was age twenty-six and had graduated from high school.
The Defendant reported alcohol and marijuana use beginning at age twenty-one but no
longer used either.

        Metropolitan Nashville Police Department Detective Robert Young testified that,
at the time of the offenses, he was an officer on the drug task force, which was
investigating Reginald Cooper and John Childree for selling cocaine. Detective Young
testified that in October 2014, he observed the Defendant and the Defendant’s brother
speak with Mr. Childree on Mr. Childree’s property. Detective Young stated that in
December 2014, he learned that “a load of cocaine was coming in” and that Mr. Cooper
“obtained a couple of kilos of cocaine” from Mr. Childree’s home. Detective Young said
that after receiving the cocaine, Mr. Childree drove the Defendant and the Defendant’s
brother to a nearby hotel and that the drug task force “established surveillance [at the
hotel] the whole night.” Detective Young stated that he observed Mr. Childree take
“drug money” in the amount of about $30,000 cash to the Defendant and the Defendant’s
brother at about 2:00 or 3:00 a.m. Detective Young said that the Defendant and the
Defendant’s brother left the hotel at about 7:00 a.m. and that he apprehended the
Defendant and the Defendant’s brother at a Nashville airport. Detective Young stated
that the Defendant and the Defendant’s brother each gave a recorded statement in an
airport office. Detective Young said that the Defendant and the Defendant’s brother
admitted they transported ten kilograms of cocaine to Mr. Childree.

        Detective Young testified that about fifty search warrants were executed the
following day and that thirty kilograms of cocaine, cash, and firearms were recovered
during the searches. The cocaine the Defendant admitted to transporting was recovered
from Mr. Childree’s property. Detective Young said that the Defendant and the
Defendant’s brother had made about seventeen trips from Texas to Nashville since
November 2013 and that the Defendant admitted transporting cocaine from Texas to
Nashville about four or five times in the previous ten months. Detective Young stated
that the Defendant said he had transported ten kilograms of cocaine each time and that
the Defendant had transported about forty or fifty kilograms of cocaine in the previous
year.

        Detective Young testified that the drug task force uncovered a “large” drug
trafficking organization, that a second drug trafficking organization was later discovered,
and that searches related to both organizations resulted in the seizure of 100 kilograms of
cocaine, $1.8 million cash, and “assets, houses, and . . . weapons.” Detective Young
stated that the drug trafficking organizations greatly impacted the community and that
more than eighty people were indicted in connection with the organizations. Detective
Young said the investigation showed that cocaine was transported from Mexico to Texas

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to Nashville and that the delivery of the cocaine in Nashville from Texas was “directly
attributed” to the Defendant and the Defendant’s brother.

       On cross-examination, Detective Young testified that the Defendant was not
connected with the second drug trafficking organization. Detective Young said that he
read the Defendant his Miranda rights before questioning him and that the Defendant was
cooperative.

       The Defendant testified that he was arrested on December 10, 2014, and that he
was incarcerated until his family paid a cash bond in April 2016. The Defendant stated
that he lived in Texas with his family and worked at his family’s “transmission shop.”
The Defendant said that his girlfriend was four months’ pregnant and that he did not have
any other children. The Defendant stated that while incarcerated, he attended church
services and did not commit any disciplinary infractions. The Defendant said that since
his release, he had not received new criminal charges. The Defendant said that he
pleaded guilty in Texas to aggravated assault in July 2017, that the offense occurred in
2012, that he was currently serving five years’ probation relative to this conviction, and
that he had not violated probation.

       The Defendant testified that Detective Young’s testimony was an accurate
summary of his involvement in the drug trafficking organization and that he needed
money to support his family. The Defendant stated that he received the cocaine in Texas
and that he transported it to Nashville. The Defendant said that he typically earned $200
or $300 per week at the transmission shop, that he was paid about $3000 for each trip to
Nashville, that he paid bills with the money, and that he did not know the identity of the
cocaine “supplier” in Texas. The Defendant said that the suppliers knew of his arrest
because they did not receive payment for the cocaine and that the money he possessed
when he was arrested belonged to the suppliers. The Defendant testified that his brother
was the “point person” and that he helped his brother transport the cocaine. The
Defendant stated that he did not profit financially from transporting cocaine, that he never
purchased expensive items with the money, and that he still had unpaid bills.

       On cross-examination, the Defendant testified that he began working at the
transmission shop at age eleven and that he had worked there since his release from jail.
The Defendant stated that he was released on bond for aggravated assault when he
committed the current offenses and that he had prior convictions for three drug-related
offenses and for filing a false report. The Defendant denied using alcohol or drugs.

       The trial court determined that the Defendant was not eligible for split
confinement. Relative to the Defendant’s criminal history, the court found that the
Defendant had three prior convictions for drug-related offenses and that the Defendant
committed the current offenses while released on bond for aggravated assault. The court
noted that incarceration would serve as a deterrent for future criminal activity for the

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Defendant and for others who may commit similar offenses. The court determined that
the Defendant was acting as a “mule” by transporting cocaine, that the Defendant had
transported “[twenty], [thirty], or [forty] kilos of cocaine to Nashville,” and that he had
transported the cocaine in exchange for money. The court found that incarceration was
appropriate based on the nature of the offenses, the Defendant’s criminal history, and the
quantity of cocaine the Defendant transported. The court sentenced the Defendant,
pursuant to the plea agreement, to an effective ten years and ordered him to serve his
sentence in confinement. This appeal followed.

       The Defendant contends that the trial court erred by denying alternative
sentencing. The Defendant argues that the court failed to consider the purposes and
principles of the 1989 Sentencing Reform Act. He asserts that that the court failed to
address the Defendant’s amenability for rehabilitation and argues that he was a “good
candidate” for alternative sentencing because he accepted responsibility for the offenses
and had legitimate employment. The Defendant argues that he has not committed a
“most severe offense[]” as warranted by Tennessee Code Annotated section 40-35-102(5)
(2014) (amended 2015), and that the court failed to explain adequately how his being
incarcerated would serve as a deterrent to others. The State responds that this issue is
waived on appeal because the Defendant failed to include a copy of the guilty plea
transcript. In the alternative, the State argues that the court did not abuse its discretion
during sentencing.

       As a preliminary matter, the State correctly notes that the guilty plea hearing
transcript is not included in the record. The Defendant has the burden of preparing a fair,
accurate, and complete account of what transpired in the trial court relative to the issues
raised on appeal. See, e.g., State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). However,
our supreme court has held that “when a record does not include a transcript of the
hearing on a guilty plea, the Court of Criminal Appeals should determine on a case-by-
case basis whether the record is sufficient for a meaningful review under the standard
adopted in Bise.” State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). We conclude that
the record is sufficient for a meaningful appellate review of the court’s determinations
because of the extensive testimony from Detective Young and the Defendant about the
conspiracy.

       The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. Caudle, 388
S.W.3d at 278-79; see State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Generally,
probation is available to a defendant sentenced to ten years or less. T.C.A. § 40-35-
303(a) (2014). The burden of establishing suitability for probation rests with a defendant,
who must demonstrate that probation will “‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Souder, 105 S.W.3d 602, 607
(Tenn. Crim. App. 2002) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.


                                            -4-
App. 1990)); see T.C.A. § 40-35-303(b); State v. Carter, 254 S.W.3d 335, 347 (Tenn.
2008).

       A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant’s background. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court
is permitted to sentence a defendant who otherwise qualifies for probation or alternative
sentencing to incarceration when:

       (A) [c]onfinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C) (2014); see Trotter, 201 S.W.3d at 654.

        Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.

       The record reflects that the trial court considered the purposes and principles of
sentencing. The court determined that incarceration was appropriate based on the
seriousness of the offense, the Defendant’s criminal history, and the quantity of cocaine
the Defendant transported. The record supports the court’s determination that the
Defendant was previously convicted of three drug-related offenses and aggravated
assault. The court found that the Defendant committed serious offenses based upon the
amount of cocaine the Defendant transported and that he was paid money in exchange for
his transporting the cocaine, which the Defendant admitted. The court also determined
that incarceration would serve as a deterrent to the Defendant and to others who may
commit similar offenses and that the Defendant had a high likelihood of reoffending.
Although the court did not explicitly address the Defendant’s amenability to
rehabilitation, the court found, based upon the Defendant’s testimony and the presentence

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report, that the Defendant committed the current offenses while released on bond for
aggravated assault. The court reasoned that committing these offenses while released on
bond for aggravated assault was a “negative” against the Defendant. We conclude that
the record supports the court’s determinations and that the court did not abuse its
discretion in ordering the Defendant to serve his sentences in confinement. Caudle, 388
S.W.3d at 278-79. The Defendant is not entitled to relief on this basis.

     In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.




                                        ____________________________________
                                        ROBERT H. MONTGOMERY, JR., JUDGE




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