FILED

September 20, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

 AT JACKSON

 JUNE 1995 SESSION

STATE OF TENNESSEE, ) 

) C.C.A. No. 02C01-9503-CR-00056 

 Appellee, )

) Shelby County

V. )

) Hon. L. T. Lafferty, Judge

)

PHILLIP D. BELL, ) (Unlawful Possession of a Controlled

) Substance with Intent to Sell or Deliver) 

 Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

Howard L. Wagerman Charles W. Burson

Howard B. Manis Attorney General & Reporter 

Attorneys at Law

The Wagerman Law Firm Cyril V. Fraser

Suite 2003, 100 North Main Counsel for the State

Memphis, TN 38103 Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

John W. Pierotti

District Attorney General

James A. Wax, Jr.

Asst. Dist. Attorney General

201 Poplar, 3rd Floor

Memphis, TN 38103

OPINION FILED: ___________________

AFFIRMED AS MODIFIED

PAUL G. SUMMERS,

Judge
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O P I N I O N

Phillip D. Bell, the defendant, pled guilty to possession of cocaine, less

than .5 grams, with intent to sell. The Criminal Court at Shelby County

sentenced him to serve 180 days in the Shelby County Correctional Center

followed by five (5) years probation. On appeal, the defendant contends that the

trial court erred in failing to suspend his entire sentence or, alternatively, in failing

to allow service of the sentence on weekends.

We modify and affirm the judgment of the trial court.

The Department of Correction investigation report indicates that members

of the Organized Crime Unit executed a search warrant at a location where the

defendant was believed to be storing and selling cocaine. When the police

entered the apartment, the defendant entered the bathroom and attempted to

flush a plastic bag down the toilet. The bag contained 2.96 grams of cocaine. 

The defendant pled guilty and agreed to a sentence of four years in the Shelby

County Correctional Center with suspension of his sentence to be determined

after a hearing. 

The trial court denied the defendant straight probation, stating:

Now the reason you're not going to get straight probation is

because exactly what you did. You endeavored to sell cocaine. 

You were a known cocaine seller. You had a business going in

operation. So, you're not going to walk through those doors and be

put on probation because you say you have changed the patterns

of your ways. Good.

And what struck me in this report was when they tried to find out

where you lived, they contact your aunt, she says, 'No,' you don't

live there, you just come by once in a while. That is a little odd.

When a defendant appeals a sentencing issue, this Court shall conduct a

de novo review on the record with the presumption that the determinations made
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by the trial court are correct. T.C.A. § 40-35-401(d) (1990); State v. Byrd, 861

S.W.2d 377, 379 (Tenn. Crim. App. 1993). This presumption of correctness is

conditioned upon an affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant is presumed

to be a favorable candidate for alternative sentencing in the absence of evidence

to the contrary. See T.C.A. § 39-17-417(C)(2) (Supp. 1994); T.C.A. § 40-35-

102(5), (6) (1990 & Supp. 1994). With all due respect, the record fails to

affirmatively show that the trial court began his analysis by considering that the

defendant is presumptively subject to alternative sentencing. It appears that the

court imposed incarceration and then explained why a sentence less restrictive

than incarceration would not be appropriate. Accordingly, we review the record

de novo.

The defendant is presumed to be a favorable candidate for alternative

sentencing, absent evidence to the contrary. Evidence to the contrary includes

(1) evidence of a need to protect society by restraining a defendant who has a

long history of criminal conduct, (2) a need to avoid depreciating the seriousness

of the offense, (3) a need to deter others likely to commit similar offenses, and

(4) evidence that measures less restrictive than confinement have frequently or

recently been applied to the defendant. T.C.A. § 40-35-103(1)(A),(B)&(C)

(1990). Other factors applicable to the defendant's petition for suspension of

his sentence include the defendant's past and present mental and physical

condition, State v. Grear, 568 S.W.2d 285, 286-87 (Tenn. 1978), and the

defendant's truthfulness at trial or a sentencing hearing. State v. Jenkins, 733

S.W.2d 528, 535 (Tenn. Crim. App. 1987). The defendant's potential or lack of

potential for rehabilitation should also be considered. T.C.A. § 40-35-103(5).

In denying probation, the trial court emphasized the nature of the offense.

Before a trial court can deny probation based solely on the nature of the offense,

the act must be especially violent, offensive, or otherwise of an excessive or
 

1

Although indicted for felonious sale of cocaine possession greater than five grams, a

class B felony, the defendant was allowed to plead to a class C felony in a plea bargain.

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exaggerated degree; and this factor must outweigh all other factors favoring 

probation. State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981). The defendant

testified that he was not a "big-time" drug seller but that he had dealt with

approximately $400.00 worth of cocaine. He admitted that the officers 1

recovered a gun, two walkie-talkies and a beeper watch at the location where the

search warrant was executed. The defendant testified that he had the walkietalkies and the beeper to watch out for the police. The defendant's offense,

however, was nonviolent; there was no injury or death involved. The defendant

is a youthful offender, twenty-one years old. He admits to having arrests as a

juvenile for expired tags, violation of curfew and patronizing prostitution. Since

his arrest, he has found employment and enrolled in a program to obtain his

GED. He says that he is remorseful for his crimes. He testified that he does not

take drugs. 

 In denying probation, the trial court relied upon the defendant's lack of

candor in addition to the nature of the offense. With the exception of the court's

finding that the defendant told investigators that he lived with his aunt when he

apparently did not, the defendant was candid with the court. He admitted his

involvement with cocaine and the degree of his involvement. 

This is a close case. Our review leads us to believe that the defendant

was a known drug dealer and the police caught him. He received a good

negotiated plea, but his prior adult record is unblemished. We do believe that

180 days of shock confinement will assist him in rehabilitation. He ought to have

the opportunity to hold a job and progress toward a GED, however. Therefore,
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we affirm the trial court's sentence but modify it to the extent that the 180 days

incarceration will be served in periodic confinement as designated by the trial

judge to allow the defendant to work and go to GED training. The 180 days will

be served based upon a 24 hour day as the trial judge ordered.

AFFIRMED AS MODIFIED

 ______________________________

PAUL G. SUMMERS, JUDGE
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CONCUR:

_____________________________________

WILLIAM M. BARKER, JUDGE

_____________________________________

MARY BETH LEIBOWITZ, SPECIAL JUDGE