                                                                                       03/31/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             December 13, 2016 Session

                STATE OF TENNESSEE v. NICOLE IRIZZARY

                 Appeal from the Circuit Court for Stewart County
                   No. 2013-CR-10 Larry J. Wallace, Judge
                     ___________________________________

                           No. M2016-00465-CCA-R3-CD
                       ___________________________________


The defendant, Nicole Irizzary, pled nolo contendere to voluntary manslaughter as a
lesser-included offense of second degree murder (Count 1), possession of a Schedule II
Drug (Count 2), and child abuse and neglect as a lesser-included offense of aggravated
child abuse (Count 3). The trial court sentenced the defendant to concurrent, four-year
sentences for Counts 1 and 2, to run consecutively to a four-year sentence for Count 3.
The trial court denied the defendant’s request for alternative sentencing and ordered the
effective eight-year sentence to be served in confinement. On appeal, the defendant
argues the trial court abused its discretion by denying her request for alternative
sentencing and committed plain error by improperly relying on the defendant’s silence at
the sentencing hearing. Following our review, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and
CAMILLE R. MCMULLEN, JJ., joined.

Jerred A. Creasy, Dickson, Tennessee, for the appellant, Nicole Leigh Irizzary.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Ray Crouch, District Attorney General; Margaret Sagi, and Sarah
Wojnarowski, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

      On October 14, 2012, the defendant’s sixteen-year-old daughter died from a fatal
combination of alcohol and the narcotic oxymorphone. Following the victim’s death, the
defendant was charged with: second degree murder (Count 1); possession of a Schedule
II Drug (Count 2); aggravated child abuse (Count 3); contributing to the delinquency of a
minor (Counts 4 and 5); conspiracy to sell a Schedule II drug (Count 6); and criminally
negligent homicide (Count 7). The defendant pled nolo contendere to voluntary
manslaughter under Count 1, possession of a Schedule II Drug under Count 2, and child
abuse under Count 3.1 Per the terms of the plea agreement, the remaining counts were
dismissed. The trial court sentenced the defendant to four years under Count 1,
concurrent with, four years under Count 2, and both consecutive to four years under
Count 3, for an effective sentence of eight years. On January 5, 2016, the trial court held
a sentencing hearing in order to determine whether the defendant would serve her
sentence in confinement or through an alternative sentence.

       At the sentencing hearing, Special Agent Shawn Adkins of the Tennessee Bureau
of Investigation testified that he was charged with investigating the victim’s death. On
October 14, 2012, Agent Adkins went to the home where the victim died. James
Skelton,2 the owner of the home, consented to a search of the premises. Inside, Agent
Adkins found the victim’s body in the bed of Dayzon, the victim’s boyfriend. The victim
was “on her back and her hands were up near her shoulders” with a pool of blood near
her body. There were no signs of trauma or wounds to the victim’s body. Crime scene
officers found a yellow pill in the pocket of the victim’s jeans which were located at the
foot of the bed. Technicians with the Tennessee Bureau of Investigations tested the
yellow pill and identified it as Opana, a potent form of oxymorphone.

       Upon further investigation, Agent Adkins learned that the victim, Dayzon, Darius,
and Evelyn Dollar went to a party in Dover, Tennessee the evening of October 13, 2012.
Agent Adkins and another investigator interviewed approximately twenty individuals
who were at the same party. Witnesses indicated alcohol was consumed at the party even
though there were minors present. A number of witnesses recalled Dayzon, Darius, the
victim, and Evelyn Dollar being present at the party, and the victim attempting to sell
pills.

       When Agent Adkins asked the defendant about the yellow pill found in the
victim’s pocket, the defendant denied any knowledge of the same. However, the
defendant admitted she was prescribed Opana for back pain. Agent Adkins also learned
the defendant filled an Opana prescription for sixty pills on October 4, 2012. According

       1
          The trial court made a clerical error on the judgment forms regarding Counts 2 and 3. In the
original indictment, the defendant was charged with possession of a schedule II drug under Count 2 and
aggravated child abuse under Count 3. The judgment forms, however, indicate the child abuse offense
under Count 2 and the drug offense under Count 3.
         2
          Because several individuals, James Skelton, Dayzon Skelton, and Darius Skelton, have the same
last name, we will refer to them by their first name. We intend no disrespect.
                                                 -2-
to Agent Adkins, the number of deaths attributed to Opana overdose has increased since
2012.

        In her initial statement to Agent Adkins, the defendant denied giving the victim
pills and specifically stated, “I didn’t give [the victim] any pills . . . I have never sold my
pills or asked anyone to sell my pills.” The defendant stated that on the morning of the
victim’s death, she received a call from Dayzon. He told her the victim was having
trouble breathing and he could not wake her up. The defendant went to the Skelton home
and found the victim lying in a bed “blue and stiff.”

        After taking the defendant’s statement, Agent Adkins obtained consent to search
the cell phones of the defendant, the victim, and Dayzon. One series of text messages
recovered from the victim’s phone detailed a conversation from October 12, 2012,
between Dayzon and the victim. In the conversation, the two discuss getting pills from
the defendant to sell. According to Agent Adkins, the victim wrote, “Hey, my mom said
that she was wondering if you could get rid of a few pills for her because her insurance
came out and she has none. She told me to ask you.” Dayzon replied, “How much
money she need?” Agent Adkins stated that the victim responded, “She said maybe 60 to
80 . . . She just didn’t know her insurance came out and when she tried to get gas, her
card wasn’t working because no money. But she has 36 pills left told me to take 10 . . . .”

        Agent Adkins testified that in another text exchange the victim wrote, “[the
defendant] just found 6 more, lol. Damn, she yes-no, yes-no all morning but told me to
get 6 more so we got 16 now. She said we can have 10 or 12. She just really needs some
money for gas. And, she said, NOW, KRISTEN, I SHOULDN’T BE TEXTING YOU
THIS.” Further, on the evening of October 13, 2012, the victim texted the defendant
again. According to Agent Adkins, the text exchange read, “Dayzon didn’t even bring
the pills so can you bring 10 with you and we get them when we give you the 30? So we
can hopefully sell them to get gas money for way home.” The defendant responded,
“Yes.”

       Agent Adkins also discovered text conversations between the defendant and her
boyfriend, Billy Williams, in which the two discussed selling pills to another individual,
Kendrick Stacker. Agent Adkins recovered additional messages from the defendant’s
phone from later in the evening on October 13, 2012, between the defendant and the
victim in which they discussed the victim and Dayzon selling pills at the defendant’s
request. The text messages were entered as an exhibit at the sentencing hearing.

       After reviewing all of the text messages, Agent Adkins conducted a second
interview with the defendant on November 7, 2012. The defendant admitted to giving
Dayzon ten Opana pills earlier in the week of October 13, 2012, but continued to deny
                                             -3-
having given the victim or Dayzon any pills the night the victim died. She told Agent
Adkins that she gave the Opana pills to the victim and Dayzon for them to sell so they
could make some money. The defendant also told Agent Adkins she had given Kendrick
Stacker two Opana pills to sell for her.

       Agent Adkins also interviewed Dayzon a second time. Dayzon told Agent Adkins
that he and the victim met the defendant in Clarksville, TN on October 13, 2012. The
victim got out of his car and went to the defendant’s car. When the victim returned to his
car, she had the Opana pills in her hand.

       Agent Adkins testified that the pill found in the victim’s pocket matched the
Opana prescription recently filled by the defendant. He searched Dayzon’s home and
discovered a small tin container with eleven Opana pills inside. Dayzon told Agent
Adkins he received the Opana pills from the defendant. The investigation revealed the
victim and Dayzon sold a minimum of four Opana pills, though the exact number of pills
sold was undetermined.

       Additionally, Agent Adkins learned of two separate occasions during the week of
October 13, 2012, in which the defendant provided Opana pills to the victim. On one
occasion the defendant gave the victim ten pills, and on another occasion she provided
sixteen pills, for a total of twenty-six pills. In addition to Dayzon’s testimony, Darius and
Evelyn Dollar also provided statements that they witnessed the defendant give pills to the
victim. Finally, Kendrick Stacker told Agent Adkins that the victim received the pills
from the defendant to sell in order to get gas money.

       On cross-examination, Agent Adkins testified the defendant cooperated with the
investigation, consented to a search of her cell phone, and gave statements when
requested. Agent Adkins admitted he did not search the defendant’s home or verify the
number of pills in her possession at the time of the victim’s death. However, upon
examination by the trial court, Agent Adkins testified that the defendant attempted to
conceal and downplay her involvement in the victim’s death throughout the investigation.

       Dr. Thomas Deering, a Deputy Chief Medical Examiner, also testified at the
sentencing hearing. Dr. Deering reviewed the information provided to him by law
enforcement surrounding the victim’s death, studied the victim’s medical history, and
also performed an examination of the victim’s body. As part of his examination, Dr.
Deering took a sample of the victim’s blood, the vitreous fluid behind the victim’s eyes,
and the victim’s urine. The victim’s blood sample indicated a blood-alcohol level of
.154, a small amount of THC, and the presence of Opana at a concentration of eighty-
nine nanograms per milliliter at the time of her death. Dr. Deering also tested the fluid
taken from behind the victim’s eyes for the presence of narcotics and alcohol. The test
                                            -4-
indicated a blood-alcohol level of .179 and the presence of Opana at a concentration of
eighty-nine nanograms per milliliter.

       Dr. Deering explained that Opana is a very strong form of the narcotic
oxymorphone and used to treat chronic pain. A typical dose for someone taking Opana
for pain is zero to five nanograms. Ninety nanograms would be a lethal dosage, for
someone who does not take Opana on a regular basis, especially when combined with
alcohol. Opana related deaths typically occur when individuals take too much, they
become drowsy, go to sleep, and never wakeup. This happens because the Opana causes
the victim’s heart rate to slow so much that their body is unable to recover. Alcohol
consumption intensifies this effect. Dr. Deering stated that an individual may appear
tired but otherwise fine, go to sleep, and pass away while sleeping. He also testified that
he has witnessed an increase in Opana related deaths since 2006-2007.

       Dr. Deering testified that, even without the presence of alcohol, the level of Opana
in the victim’s body would be potentially lethal. According to Dr. Deering, the victim
would not have died but for the Opana in her system. Dr. Deering concluded that the
victim’s cause of death was acute combined multiple drug intoxication of oxymorphone
and alcohol.

        Connie Turner, of the Board of Probation and Parole, also testified. Ms. Turner
prepared a presentence investigation report regarding the defendant. As part of her
investigation, Ms. Turner interviewed the defendant, reviewed mitigating and
enhancement factors, performed a criminal history background check, and reviewed the
circumstances of the case. Ms. Turner also received ten to twelve letters from various
members of the victim’s family. The defendant was provided an opportunity to make a
statement to Ms. Turner, but she declined to do so. The defendant did, however, provide
Ms. Turner with information regarding her mental and physical health status. The
defendant reported no mental illness but informed Ms. Turner that she takes Opana daily
for back pain. The defendant’s criminal history report indicated no previous convictions.
The defendant also informed Ms. Turner that she had worked for Trane for twenty years
at a salary of twenty dollars per hour.

       Chris Irizzary, the victim’s father and the defendant’s ex-husband, testified at the
sentencing hearing. At the time of the victim’s death, Mr. Irizzary was her primary care
parent, although he and the defendant shared custody on a fifty-fifty basis. Two weeks
prior to the victim’s death, Mr. Irizzary and the defendant agreed not to let the victim
spend the night at Dayzon’s home. On the morning of the victim’s death, the defendant
would not tell Mr. Irizzary where the victim was or what caused her death. Rather, he
learned the facts surrounding his daughter’s death from law enforcement.

                                           -5-
       The victim’s stepmother, Teresa Irizzary, testified the victim was a loving
daughter, who made good grades in school, and wanted to be a nurse. According to Mrs.
Irizzary, the victim craved the defendant’s attention and would do anything to get it. The
defendant put her boyfriend and her friends before her role as a mother to the victim.
Mrs. Irizzary testified that the defendant showed no remorse for her actions and never
accepted responsibility for the part she played in the victim’s death. Mrs. Irizzary stated
she believed the defendant placed the victim in harm’s way, and in doing so “she took
[the victim] away from all of us.”

       The victim’s aunt, Carmen Zellman, testified that she is Chris Irizzary’s twin sister
and had known the victim all of her life. According to Mrs. Zellman, the defendant
neglected her role and duties as a parent. Mrs. Zellman testified the defendant showed no
remorse.

        The defendant also presented proof during the sentencing hearing. Holly Jones
testified she met the defendant approximately twenty-two years earlier while working at a
Trane facility. Ms. Jones did not know the victim but believed the defendant loved her
daughter and was very distraught over her death. She testified that she could tell the
defendant was remorseful.

       Crystal Hewitt testified that she also worked with the defendant and had known
her for a total of thirty years. Based on personal observations, Ms. Hewitt believed the
defendant and the victim loved each other. Ms. Hewitt testified that the defendant’s
behavior had not changed after the victim passed away, but the defendant was a strong
person. Ms. Hewitt testified she had no knowledge of the defendant’s habits as far as
frequenting bars and drinking. Ms. Hewitt never witnessed the defendant going out
drinking after the victim’s death and stated the defendant was a wonderful parent to the
victim. Ms. Hewitt was shocked to hear the defendant was attempting to sell drugs and
never personally witnessed her trying to do so.

        Finally, Dale Hutchison, the defendant’s mother and the victim’s grandmother,
testified. The defendant and the victim lived with her for several years. According to
Ms. Hutchison, the defendant was a good mother to the victim. After the victim’s death,
the defendant became withdrawn and stayed in her room a lot, though she continued to
work. Ms. Hutchison testified that the defendant has held the same job for twenty-two
years and has never been in trouble. Ms. Hutchison stated that if the defendant was
granted an alternative sentence, she believed the defendant would comply with whatever
was required of her.

       Ms. Hutchison further testified she never witnessed anything that made her think
the defendant was using drugs. She did not know the victim was allowed to spend the
                                           -6-
night with older men and did not know the defendant was attempting to have the victim
sell drugs for her. Ms. Hutchison stated if the victim spent the night at someone’s house,
it would have been with the defendant’s permission.

        At the conclusion of the sentencing hearing, the State asked the trial court to order
the defendant to serve her sentence in confinement. The defendant asked the trial court to
consider mitigating factors and grant her alternative sentencing. The court considered the
evidence presented at the plea and sentencing hearings, the pre-sentence investigation
report, and the statutory enhancement and mitigating factors. Tenn. Code Ann. §§ 40-35-
113, -114. Based upon its review of the evidence, the trial court denied the defendant’s
request for alternative sentencing and ordered the defendant to serve her eight-year
sentence in confinement. This timely appeal followed.

                                          Analysis

                                  A. Alternative Sentencing

        The defendant argues that the trial court abused its discretion when it denied her
request for alternative sentencing. The State contends the trial court appropriately stated
its reasons for denying alternative sentencing on the record, and the proof established at
the sentencing hearing supports the trial court’s decision. The State further argues the
sentence imposed was within the appropriate range for each offense, and complied with
the purposes and principles of Tennessee’s sentencing statute. Upon review, we agree
with the State.

       The trial court has broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
Supreme Court clarified that the “abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).

      As a result of amendments to the sentencing act in 2005, trial courts are to
consider the following factors when determining a defendant’s sentence and the
appropriate combination of sentencing alternatives:
                                            -7-
      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 the mitigating and
         enhancement factors set out in §§ 40-35-113 and 40-35-114;
      6) Any statistical information provided by the administrative office of the
         courts as to sentencing practices for similar offenses in Tennessee; and
      7) Any statement the defendant wishes to make in the defendant’s own
         behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b). The trial court must state on the record the factors it
considered and the reasons for the ordered sentence. Tenn. Code Ann. § 40-35-210(e);
Bise, 380 S.W.3d at 706. The party challenging the sentence on appeal bears the burden
of establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Cmts.

       A defendant is not presumed to be a favorable candidate for alternative sentencing.
State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-
102(6)). The sentencing guidelines provide that a defendant “who is an especially
mitigated or standard offender convicted of a Class C, D, or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of
evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). No criminal defendant,
however, is automatically entitled to probation as a matter of law. State v. Davis, 940
S.W.2d 558, 559 (Tenn. 1997). The defendant bears the burden of proving his or her
suitability for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing Tenn.
Code Ann. § 40-35-303(b)). The defendant must show that the alternative sentence
imposed “will serve the ends of justice and the best interests of both the public and the
defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other
grounds, State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).

       When imposing a sentence of full confinement, the trial court should consider the
following:

      (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
                                          -8-
      (C) Measures less restrictive than confinement have frequently or recently
          been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). Additionally, the sentence imposed should be
“no greater that that deserved for the offense committed,” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.
§ 40-35-103(2), (4).

       When determining whether to impose incarceration based on deterrence the trial
court should consider:

      (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, and
      (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.

Tenn. Code Ann. § 40–35–103, Sentencing Comm’n Cmts. Accordingly, this Court will
uphold the trial court’s imposition of confinement based on the need for deterrence if,
based upon the record, a reasonable person “could conclude that (1) a need to deter
similar crimes is present in the particular community, jurisdiction, or in the state as a
whole, and (2) incarceration of the defendant may rationally serve as a deterrent to others
similarly situated and likely to commit similar crimes.” Hooper, 29 S.W.3d at 9.

       In this case, the trial court considered each factor required by Tennessee Code
Annotated § 40-35-210 before sentencing the defendant to an effective sentence of eight
years in confinement. In addition, before ordering confinement, the trial court reviewed
the evidence presented in the presentence report and during the plea hearing and the
sentencing hearing. Regarding the nature and characteristics of the criminal conduct
involved, the trial court recognized the severity of the loss of the victim on those
involved, as well as the severity of the crime. Specifically, the trial court concluded:



                                           -9-
       The text messages are clear and the circumstantial evidence with it that the
       defendant was involving [the victim] in illegal activity and that illegal
       activity ultimately resulted in the death of [the victim]. Upon this Court’s
       perspective, using your child in that manner is about as bad as it gets. It’s
       pretty pathetic and totally reprehensible. You know, a child expects that
       parent will look after it because that parent is supposed to nurture and be
       mature and take care of the child, not lead it into the situation that this
       parent did.

       The trial court determined, however, that evidence existed justifying the denial of
alternative sentencing in the defendant’s case. The trial court found that confinement was
necessary to provide an effective deterrence to others likely to commit similar offenses.
Tenn. Code Ann. § 40-35-103(1)(B). The trial court based its finding on the testimonies
of Agent Adkins and Dr. Thomas Deering. Both Agent Adkins and Dr. Deering testified
that Opana related deaths had increased in the state of Tennessee since approximately
2006-2007. Dr. Deering testified he personally witnessed a rise in deaths attributed to
misuse of Opana, especially when combined with alcohol.

        Next, the court concluded that “the defendant’s crime was . . . motivated by desire
to profit or gain from the criminal behavior.” Hooper, 29 S.W.3d at 10-11. The court
noted the defendant’s purpose in engaging her daughter in the sale of Opana pills was to
get gas money. The court also found the defendant “previously engaged in criminal
conduct of the same type.” Id. Relying on testimony from the sentencing hearing, as
well as text messages from the defendant’s phone, the trial court determined the
defendant attempted to sell her Opana pills on at least one occasion prior to the incident
resulting in the victim’s death.

       Finally, the trial court considered the defendant’s lack of remorse and failure to
accept responsibility for her actions. The court stated: “[The defendant] failed to accept
responsibility for her actions.” The court went on to explain, “that to me - - to this Court
shows that there’s no remorsefulness with regards to this. I think she’s sorry that this
happened. No question she misses her daughter. I’m not questioning that at all. But no
remorsefulness for her part that it played in it in acceptance and responsibility.”

       Accordingly, the trial court did not abuse its discretion in imposing a sentence of
confinement. The record reflects the trial court properly considered the relevant purposes
and principles of Tennessee’s sentencing statutes and imposed sentences within the
applicable range for the defendant’s Class C felony offense of voluntary manslaughter,
Class C felony offense of possession of a schedule II drug, and Class D felony offense of
child abuse. The trial court then made the requisite findings on the record in support of

                                           - 10 -
its ruling, and denied the defendant’s request for alternative sentencing. Accordingly, we
affirm the sentencing imposed by the trial court.

                             B. Defendant’s Failure to Allocute

       Next, the defendant argues that the trial court committed plain error by
considering her failure to testify at the sentencing hearing in its decision to deny
alternative sentencing. Relief based on plain error will not be granted unless the
following requirements are satisfied:

      (a) the record clearly establishes what occurred in the trial court;
      (b) a clear and unequivocal rule of law was breached;
      (c) a substantial right of the accused was adversely affected;
      (d) the accused did not waive the right for tactical reasons; and
      (e) consideration of the error is “necessary to do substantial justice.

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). “Complete
consideration of all the factors is not necessary when it is clear from the record that at
least one of the factors cannot be established.” State v. Smith, 24 S.W.3d 274, 283 (Tenn.
2000). The defendant bears the burden of persuading the appellate court that the trial
court committed plain error and that the error was of “such a great magnitude that it
probably changed the outcome of the trial.” Id. (quoting Adkisson, 899 S.W.2d at 642).

       As previously noted, the trial court shall consider any statement the defendant
wants to make on her own behalf about sentencing. Tenn. Code Ann. § 40-25-210(b)(7).
Often referred to as allocution, this statement is “an unsworn statement from a convicted
defendant to the sentencing judge or jury in which the defendant can ask for mercy,
explain his or her conduct, apologize for the crime, or say anything else in an effort to
lessen the impending sentence.” State v. Thomas A. Isbell, No. M2015-00587-CCA-R3-
CD, 2016 WL 869437, at *6 (Tenn. Crim. App. Mar. 4, 2016)(quoting Black’s Law
Dictionary 75 (7th ed. 1999)). However, the privilege against self-incrimination applies
to the penalty phase. Id. (quoting Mitchell v. United States, 526 U.S. 314, 328-29
(1998)). Thus, the trial court may not draw an adverse inference about the facts of the
crime from the defendant’s silence at the sentencing hearing. Id. Though, the trial court
may rely on the defendant’s lack of remorse or failure to accept responsibility in denying
the defendant’s request for an alternative sentence. Id. at 7.

       While the trial court clearly considered the defendant’s failure to accept
responsibility and her lack of remorse for her contributions to the victim’s death in not
imposing alternative sentencing, the record does not support a conclusion that the trial
court took into account the defendant’s failure to allocate during the plea hearing.
                                           - 11 -
Specifically, the trial court noted that the defendant’s lack of honesty weighed against
imposing an alternative sentence, stating:

       In this case, had [the defendant] just come clean and said “I messed up,”
       this Court might be giving out a different type of manner regarding the
       sentence, but that didn’t happen in this case. I’ve already gone over the
       statement she gave to the TBI and, of course, we know that they were
       misrepresented both times to some degree . . .
       . . . it really comes down to the fact that there was no honesty here at the
       end of the day, and there was no clarity, no light that was shone on the
       situation by the defendant. And that, to me—to this Court shows that
       there’s no remorsefulness with regards to this . . .

        Contrary to the defendant’s claim, the above referenced comments do not support
a finding that the trial court drew a negative inference from the defendant’s silence about
the facts of the case. Rather, the record indicates the trial court relied on the defendant’s
failure to accept responsibility and her lack of remorse in denying an alternative sentence.
As such, the defendant has failed to show that a “clear and unequivocal rule of law was
breached.” Adkisson, 899 S.W.2d at 641-42. Because the defendant has not established
all five factors necessary for plain error review, the defendant is not entitled to relief.

                                  CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments
of the trial court.



                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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