State of Tennessee v. Brittany Scott Pye

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 21, 2010

STATE OF TENNESSEE v. BRITTANY SCOTT PYE

Appeal from the Circuit Court for Maury County

No. 17640 Stella L. Hargrove, Judge

No. M2009-00825-CCA-R3-CD - Filed May 11, 2010

The Defendant, Brittany Scott Pye, was convicted by a Maury County jury of sale of .5 grams

or more of cocaine, a Class B felony. See Tenn. Code Ann. § 39-17-417. Following a

sentencing hearing, the trial court imposed a fifteen-year sentence for this conviction, which

was ordered to be served consecutively to two prior sentences. In this direct appeal, the

Defendant challenges only the imposition of consecutive sentences. After a review of the

record, we affirm the judgment of the trial court. However, we must remand for entry of a

corrected judgment.

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

Remanded

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and

R OBERT W. W EDEMEYER, JJ., joined.

Larry Samuel Patterson, Jr., Columbia, Tennessee, for the appellant, Brittany Scott Pye.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant

Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of

Tennessee.

OPINION

Factual Background

This case stems from the October 20, 2006 sale of a bag of crack cocaine to a

confidential informant. The confidential informant telephoned the Defendant to meet her at

a car wash. After the Defendant’s arrival, the confidential informant got into a car with the

Defendant and Brandon Russell. The informant put her money on the console of the car and

“picked up the dope.” The informant returned to the officer with a quantity of crack cocaine

weighing .8 grams. The sale was observed by an undercover police officer and was recorded

by video camera. Following a jury trial, the Defendant was convicted of sale of .5 grams or

more of cocaine, a Class B felony. See Tenn. Code Ann. § 39-17-417(a), (c)(1).

Sentencing Hearing

A sentencing hearing was held on March 19, 2009. At this hearing, Emily Thigpin,

an employee of the Tennessee Board of Probation and Parole, testified that she prepared the

presentence report in the Defendant’s case. Ms. Thigpen explained that the Defendant

provided a written statement for her report, wherein the Defendant professed he was innocent

of the crime:

I know I put myself in this situation but I’m innocent because there was

another person in this case and was not charged. But I’ve sold drugs in the

past and have taken them. So I know I do have a problem and I didn’t do this

crime like they say I have.

The Defendant also admitted that he needed drug treatment and stated that he “would like

to see [his] children grow up . . . .” However, on the questionnaire the Defendant indicated

that he had never used alcohol or drugs. The Defendant reported no physical or mental

health problems.

Ms. Thigpen reported that the Defendant had failed three drug tests while on

probation, testing positive for (1) marijuana, benzodiazepines and cocaine on April 12, 2005,

(2) marijuana on May 2, 2005, and (3) marijuana and cocaine on December 12, 2005.

According to Ms. Thigpen, the Defendant’s probation was revoked based upon the instant

conviction.

As for the Defendant’s employment history, the Defendant reported working for A-

Plus Cleaning, being supervised by Debra Pye, and for CPS, making wrapping paper. The

Defendant did not provide dates of employment or any other information. Ms. Thigpen

believed Debra Pye was the Defendant’s aunt. Ms. Pye sent a letter to Ms. Thigpen stating

that the Defendant worked for her approximately three days a week and earned $40 per day

cleaning office buildings and homes. When asked about the Defendant’s education, Ms.

Thigpen stated that the Defendant attended Columbia Central High School through the tenth

grade; he did not have a high school diploma and had not obtained a GED.

The Defendant’s mother, Gloria Arelne Pye, confirmed that the Defendant worked for

Debra Pye cleaning houses and office buildings about three days a week. She also testified

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that the Defendant worked for CPS for about five months. Before his incarceration, the

Defendant lived with his mother. His ten-year-old daughter also lived there; however, his

three-year-old son resided with the child’s mother. The Defendant’s mother was not aware

that the Defendant had a drug problem. When asked if she had noticed a difference in her

son since his incarceration, she stated that “[h]e seems to be more mature now” and “his life

is more focused.”

On cross-examination, the Defendant’s mother testified that the Defendant had also

worked at Lasko for about three or four months. She also stated that the Defendant had

supported his children financially when he was living with her and that he had sometimes

given her money to “help out.” According to the Defendant’s mother, the Defendant did not

“believe they should have found him guilty.”

The twenty-seven-year-old Defendant also testified at his sentencing hearing. He

acknowledged that he was on probation for ten years at the time he committed this offense.

He admitted to selling cocaine, stating, “I didn’t wanna work at the time. I know I’ve made

the wrong choices.” When asked if he had a drug problem, he confirmed that he had used

drugs in the past. He reported that he was taking a GED class while in prison and was trying

to get into a “therapeutic drug program[.]” The Defendant testified that, after his release, he

wanted to care for his children and to obtain “a real job[.]” He wanted to “just be a better

person[.]”

On cross-examination, the Defendant admitted he violated the terms of his probation

by taking drugs. He claimed he started attending drug classes after his positive drug tests.

When asked about his claim of innocence, the Defendant stated that he “was around the

wrong person at the wrong time.” He stated that he was not the person who handed the

cocaine to the confidential informant, but admitted that he did take the money from her and

that the drugs belonged to him.

The presentence report reflected that, in addition to the three felony convictions used

to establish is Range II classification (facilitation of armed robbery, cocaine possession with

intent to sell, and attempted sale of cocaine), the Defendant also had four misdemeanor

convictions for driving while his license was suspended and failing to produce a license upon

demand. The presentence report also showed that the Defendant had been given an

opportunity to participate in a rehabilitation program. Following an assessment with the

Multi-County Alcohol/Drug Safety Program in May 2005, it was recommended that the

Defendant get further substance abuse treatment, and he attended treatment on an out-patient

basis until October 2005. He was dismissed from the program for failing to comply with the

attendance policy.

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At the conclusion of the hearing, the trial court sentenced the Defendant to fifteen

years as a Range II, multiple offender. The trial court further ordered this sentence to be

served consecutively to Maury County cases number 12011 (three-years for facilitation of

attempted robbery) and number 12796 (eight years for cocaine possession with intent to

sell).1 This appeal followed.2

Analysis

The Defendant argues that the trial court erred in ordering him to serve consecutive

sentences. On appeal, the party challenging the sentence imposed by the trial court has the

burden of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401,

Sentencing Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

When a defendant challenges the length, range, or manner of service of a sentence, it is the

duty of this Court to conduct a de novo review on the record with a presumption that the

determinations made by the court from which the appeal is taken are correct. Tenn. Code

Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also

State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial

court failed to consider the sentencing principles and all relevant facts and circumstances,

then review of the challenged sentence is purely de novo without the presumption of

correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d

at 344-45.

In conducting a de novo review of a sentence, this Court must consider (a) the

evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) evidence and information offered by the

parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated

sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;

1

From our review of the record, it appears that the trial court intended this fifteen-year sentence to

be serve consecutively to the remaining ten years in case numbers 12796 and 16088, not 12011. We remand

only for correction of the judgment form.

2

These 2002 sentences were consecutive terms, resulting in an effective eleven-year sentence. In

2006, the Defendant was convicted in case number 16088 of attempted sale of cocaine, that two-year

sentence to be served consecutively to the effective eleven-year sentence. It was agreed at the Defendant’s

May 27, 2008 revocation hearing that his sentence in case number 12011 had expired. His probation (ten

years remaining) had already been revoked at the time of this sentencing hearing.

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and (g) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.

Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in

its discretion, order sentences to run consecutively if it finds any one of the following criteria

by a preponderance of the evidence:

(1) The defendant is a professional criminal who has knowingly

devoted the defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

(3) The defendant is a dangerous mentally abnormal person so declared

by a competent psychiatrist who concludes as a result of an investigation prior

to sentencing that the defendant’s criminal conduct has been characterized by

a pattern of repetitive or compulsive behavior with heedless indifference to

consequences;

(4) The defendant is a dangerous offender whose behavior indicates

little or no regard for human life, and no hesitation about committing a crime

in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and victim

or victims, the time span of defendant’s undetected sexual activity, the nature

and scope of the sexual acts and the extent of the residual, physical and mental

damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). These criteria are stated in the alternative; therefore, only

one need exist to support the appropriateness of consecutive sentencing.

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In addition to these criteria, consecutive sentencing is also subject to the general

sentencing principles that the overall sentence imposed “should be no greater than that

deserved for the offense committed,” that it “should be the least severe measure necessary

to achieve the purposes for which the sentence is imposed,” and that the defendant’s

“potential for rehabilitation” be considered. Tenn. Code Ann. § 40-35-103(2), (4) and (5).

Additionally, we are advised that “the aggregate maximum of consecutive terms must be

reasonably related to the severity of the offenses involved.” Tenn. Code Ann. § 40-35-115,

Sentencing Commission Comments.

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in

its discretion, order sentences to run consecutively if it finds any one of a number of criteria

by a preponderance of the evidence. In this case, the trial court ordered consecutive

sentences based on its findings that (1) the Defendant “is a professional criminal who has

knowingly devoted [his] life to criminal acts as a major source of livelihood”; (2) the

Defendant “is an offender whose record of criminal activity is extensive”; and (3) the

Defendant “is sentenced for an offense committed while on probation.” See Tenn. Code

Ann. § 40-35-115(b)(1), (2), (6).

The record in this case supports the findings underlying the trial court’s order that the

Defendant’s sentences be served consecutively. The twenty-seven-year-old Defendant had

spent much of his adult life in the criminal court system and had no significant employment

history. The trial court was “skeptical” of his employment with his aunt, concluding that he

is “a cocaine dealer.” His prior criminal history included convictions for facilitation of

aggravated robbery, cocaine possession with intent to sell, attempted sale of cocaine, and

four misdemeanors. The Defendant acknowledged that he was on probation at the time he

committed the instant offense. The trial court also found that the Defendant did not accept

full responsibility for his actions and that his potential for rehabilitation was poor. We note

that, in addition to his prior probation violation by testing positive for drugs three times, the

Defendant had previously been given an opportunity to participate in a rehabilitation

program, and he was dismissed from that program for failing to comply with the attendance

policy.

The Defendant makes no forceful argument that these criteria do not apply; he simply

contends concurrent sentencing is “more appropriate” and “reasonably related to the severity

of the offenses involved.” The record supports the imposition of consecutive sentences

under any of the three criteria found by the trial court. We conclude that the trial court did

not abuse its discretion by ordering consecutive sentences. The Defendant is not entitled to

relief on this issue.

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Conclusion

We conclude that the trial court did not err in its sentencing determination. The

judgment of the Maury County Circuit Court is affirmed. This case is remanded solely for

the purpose of a corrected judgment form in accordance with this opinion.

_________________________________

DAVID H. WELLES, JUDGE

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