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State v. Marlow11/21/2005
ond trial or appeal are substantially the same as the facts in the first trial or appeal. The doctrine applies to issues that were actually before the appellate court in the first appeal and to issues that were necessarily decided by implication. The doctrine does not apply to dicta. . . . Therefore, when an initial appeal results in a remand to the trial court, the decision of the appellate court establishes the law of the case which generally must be followed upon remand by the trial court, and by an appellate court if a second appeal is taken from the judgment of the trial court entered after remand.
State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn. 2000) (citations omitted).
As previously indicated, the trial court ordered the defendant to serve one year in confinement followed by six years in community corrections. In Marlow I, the defendant's challenge was to her sentence of confinement. Marlow I, 2004 WL 298375, *1. Upon review of the defendant's initial appeal, this Court first determined that appellate review of the trial court's findings was de novo with a presumption of correctness because the record established that the trial court considered the sentencing principles and all relevant facts and circumstances attendant to the defendant's conviction. Id. at *5. We next determined that the defendant was not entitled to the presumption of favorable candidacy for alternative sentencing because she was sentenced as a multiple offender. Id. In addition, we determined that the record supported the trial court's findings that confinement was necessary to avoid depreciating the seriousness of the offense, and because of a need for deterrence to others likely to commit similar offenses. Id. at *6-7. We further noted that "the defendant's lack of remorse, lack of candor, and untruthfulness" demonstrated poor candidacy for rehabilitation and supported a "denial of probation in this case." Id. at *7. Finally, we concluded that the defendant did not qualify for a community corrections sentence and remanded for re-sentencing. Id.
Notably absent from our holding in Marlow I was a specific determination of the manner of service of the defendant's sentence. Because the doctrine of the law of the case applies to issues decided on appeal, the trial court was not constrained to follow its previous sentence; rather, the trial court was free to re-sentence the defendant after review of the record and applicable law, including our holding on appeal. Significantly, the trial court's findings, affirmed by this Court on appeal, established that a sentence of confinement was appropriate; and reasonably, those same findings preponderated against a sentence favoring probation. We have often held that a trial court's findings regarding (1) the nature and circumstances of the criminal conduct involved, (2) the defendant's rehabilitation potential, (3) the seriousness of the offense, (4) the deterrence value, and (5) the defendant's untruthfulness - carry weight when deciding the defendant's suitability for probation. See e.g., State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. Crim. App. 2001); see also Tenn. Code Ann. ยง 40-35-103(1)(B). Upon remand, the trial court stated that it carefully considered the entire record and all the applicable law in making its decision to order the defendant to serve her entire sentence in confinement. Both the record and the applicable law supports the trial court's sentencing decision. Consequently, we affirm the judgment of the trial court.
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