        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 November 1, 2012 Session

               STATE OF TENNESSEE v. NATHANAEL LITTLE

                   Appeal from the Circuit Court for Chester County
                       No. 11-CR-13 Donald H. Allen, Judge




                  No. W2011-02199-CCA-R3-CD - Filed May 28, 2013




J OSEPH M. T IPTON, P.J., concurring and dissenting.

        I concur in the majority opinion’s conclusion that the trial court did not err in refusing
to hear the Defendant’s suppression motion. I respectfully dissent, though, because I believe
the trial court did not have sufficient evidence to support the conclusions regarding both full
confinement and consecutive sentencing. I also believe the principles and purposes of the
Sentencing Act were not best served by the sentence imposed.

       With regard to the sentence to full confinement, the trial court was influenced by the
Defendant’s years of marijuana use and his admission of selling marijuana. Unquestionably,
the proof reflected that the Defendant sold marijuana, that he was a long-time marijuana user,
and that he had previous convictions as a young man for DUI and contributing to the
delinquency of a minor. However, the trial court also relied upon the Defendant’s South
Carolina arrest and the accompanying unproven charge as criminal behavior in denying an
alternative sentence and imposing full confinement.

       I am wary of using information regarding chronic drug use gathered during a
presentence investigation, which is statutorily required as part of the sentencing process, to
support a more severe punishment for a defendant who cooperated with the presentence
investigator by providing the requested, truthful information. “This information is sought
in the presentence report for the purpose of fashioning an individualized sentence under
sentencing guidelines, not for purposes of gathering incriminating information.” State v.
Paul Neil Laurent, No. M2005-00289-CCA-R3-CD, dissenting slip op. at 1 (Tenn. Crim.
App. Feb. 27, 2006) (Hayes, J., dissenting) (disapproving of the use of a defendant’s
admissions during the presentence investigation to alcohol and drug abuse to impose
consecutive sentencing on the basis of extensive criminal activity), perm. app. denied (Tenn.
Aug. 21, 2006). As Judge Hayes observed in his dissent in Paul Neil Laurent, the use of
increased sanctions based upon a defendant’s admissions is counterproductive because it
“discourages truthfulness and is inconsistent with the purposes of the pre-sentence report.”
Id.

        The trial court relied on the Defendant’s admitted long-term marijuana use to
conclude that the Defendant could not be rehabilitated and could not abide by the terms of
probation. The Defendant said his daily marijuana usage was driven by addiction. The
record is devoid of any evidence the Defendant had ever been in a drug treatment program,
and the court’s assumption that the Defendant could not refrain from using drugs is not
justified to deny an alternative sentence.

        The trial court also relied on the need to avoid depreciating the seriousness of the
offense as a basis for imposing incarceration. The court said that granting probation for
selling drugs would send the wrong message to the community. I note that our legislature
has not excluded any of the crimes of which the Defendant was convicted from alternative
sentencing.

        The Sentencing Act provides that in the absence of evidence to the contrary, a
defendant who has been convicted of a Class C, D, or E felony should be considered a
favorable candidate for alternative sentencing. See T.C.A. § 40-35-102(6)(A) (2010). I
believe that the State has not shown that the Defendant has an extensive history of criminal
activity or past failure of rehabilitation such that a sentence of full incarceration is warranted.
See id. § 40-35-102(5). I note the Defendant’s community support, his recognition of his
financial obligations to repay his student loans and pay the fines associated with the
convictions, his securing a job as a waiter after losing his counseling job, his willingness to
work second and third jobs if necessary, his continuing to be the sole support for his wife and
child after his arrest, his accepting responsibility for his actions, and his expressed intent to
live a productive life. The Defendant testified at the sentencing hearing that he had already
served forty to forty-five days in jail.

         Although I disagree with the majority’s conclusion that the trial court did not abuse
its discretion in imposing full confinement, I agree that some confinement was appropriate.
The Defendant possessed almost one pound of marijuana, much more than the threshold
amount required for his felony convictions. I believe a sentence of 120 days’ jail service,
followed by community corrections, is appropriate. The evidence reflects that the Defendant
is the type of offender for whom the community corrections program is designed. See T.C.A.
§ 40-36-104 (2010) (listing the goals of the community corrections program).




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       As for consecutive sentences, the record fails to support a conclusion that the
Defendant had an extensive history of selling marijuana. Although the Defendant admitted
selling marijuana on occasion, his extensive history was of using marijuana, which he
admitted and asserted was an addiction. Use of this for consecutive sentencing concerns me
in two ways: (1) the use of the Defendant’s self-reporting for the presentence report
purposes and (2) the precedent for stacking sentences because of addictive drug use.

        For the reasons I stated previously, I believe a Defendant’s statements to a probation
officer preparing a presentence report should not be used as a basis for imposing an increased
or more restrictive sentence. I believe, as well, that using a defendant’s drug addiction to
justify consecutive sentences on the basis of extensive criminal activity unfairly and
excessively punishes a defendant for conduct that is the product of the addiction. Imposing
lengthy sentences upon drug-addicted individuals is not the least severe measure needed to
achieve the purpose of the sentence imposed. See T.C.A. § 40-35-103(4) (2010). I note, as
well, that merely imposing consecutive sentences on the basis of addiction-driven behavior
fails to take into account a defendant’s potential for rehabilitation. See id. § 40-35-103(5).
I would sentence the Defendant to concurrent sentences, for an effective two-year sentence.

       For these reasons, I dissent from the majority’s conclusion that the trial court did not
abuse its discretion in imposing full confinement and consecutive sentences.


                                                    ____________________________________
                                                    JOSEPH M. TIPTON, PRESIDING JUDGE




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