State v. Ashby

OPINION REID, Chief Justice.

This case presents an appeal from the judgment of the Court of Criminal Appeals affirming the trial court’s refusal to grant appellant’s request for sentencing pursuant to the Tennessee Community Corrections Act of 1985, T.C.A. §§ 40-36-101 to -306. Appellant contends that the standard of [*167] review applied by the Court of Criminal Appeals violates the Tennessee and federal constitutional prohibition of ex post facto laws and that the courts below erred in denying his request for alternative sentencing. For the reasons that follow, the conviction is affirmed. The sentence, however, is vacated, and the case is remanded to the trial court for sentencing pursuant to the Community Corrections Act.

Appellant, a retired farmer in his early 60s, has a serious heart condition and is outfitted with a pacemaker. He takes several medications, including valium. Pharmacy records admitted into evidence show that during a six months period in 1988 the appellant purchased 720 valium pills at two drug stores on prescriptions written by two physicians. The record shows that appellant had been selling to others over a period of years drugs obtained on his prescriptions. Appellant’s only prior conviction, receiving and concealing stolen property, occurred more than 20 years earlier, when he was 37 years old.