# FILED
July 31, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE APRIL 1997 SESSION

STA TE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-96 0 7-CC-0028 8 ) vs. ) Putnam County ) MATTHEW SCOTT A LBERTSON, ) Honorable Leon Burns, Jr., Judge ) Appellant. ) (Sale of Cocaine ) and Sale of Marij uana) )

FOR TH E APPEL LANT: FOR THE APPELLEE: MARTELIA T. CRAW FORD JOHN KNOX WALK UP 310A E. Broad St. Attorney Gen eral & Repor ter Cookevil le, TN 38501 CLINTON J. M ORGAN Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 WILLIAM E. GIBSON Distric t Attorney General OWEN G. BUR NETT Asst. Dist rict Attor ney General 145 S. Jefferson Ave. Cookevil le, TN 38501
OPINION FILE D: ____________________
AF FIRMED A

S MODIFIED
CURWOOD WITT JUDGE1 The court also imposed a $2,000 fine and ordered $250 restitution, which

actions have not been appealed.

2 The court also imposed a $1,000 fine and ordered $75 restitution, which actions have not been appealed. These terms w ere part of the pl ea agreement. OPINION The defendant, Matthe w Scott Alberts on, appeals the Put nam County Criminal Court's denial of judic ial di version a nd straight probation follow ing the defendant 's convicti ons of sale of cocaineand sale of marij uana . Th e trial cour t, Judge Leon Burns, Jr ., presiding , sentenced the defendant on the sale of cocai ne convictio n to fou r years and suspended all but 90 days. He ordered the confinement to be ser

ve d in the county

jail w ith the balance of the sentence on probation conditioned upon participa tion in Community Corrections. 1 For the sale of marijuana conv iction, the tr ial court i mposed a two- year sentence to be served in the sa me manner as the cocaine sentence. 2 The sentenceswere or dered to be served concurrentl y. The defendant compl ains that the tr ial court erred in failing to grant him j udicial div

ersion, and al ternativel y, that he s hould have been granted a completely probated sentence. On review, we affirm the judgment of the trial cour t.

In July 1991, the defendant, then an undergraduate studen t at Tennessee Technological U niversi tyin Cookev ille, was involv ed in the sale of controlled substances. As a r esult of an undercover investi gation by

local law enforcementand an operative from the Tennessee Highway Patrol, the defendant and two other individual s were i ndicted with various offenses rel ating to the s ale of controlled substances. The d efendant wasi ndicted on two counts of sale of marijuanaand onecount of sale of cocai ne, in viol ation of Te nness ee Code Annotated section 39-17-417(a)(3). The de fendant was tried bef ore a ju ry of his peers and convicted of the sale of less than .5 gram of cocai ne. He pleaded g uilty to sale ofover one- half ounce of marijuana and agreed toa two-year sentence, w ith the manner of serv ice of that senten ce to be determined by the court. The state3 Apparently, the defendant was in the room at thetime of this transaction

but not actively inv

olved in i ts consummation.

3 agreed to nolle prosequi the remaining sale of marijuana cou nt. 3 The defendant requested j udicial div

ersion.

At the sentencing heari ng, Brenda Reed, the probation officer w ho conducted the presentence investig ation, testified she believed the defendantwas amenable to correction and that it would be a "wonderfu l opport unity" for him to
rece ive judicial diversi on. When questioned whether the sale o f mar ijuana and cocaine was a ser ious problem i n Putnam County, she respond ed this wa s a serious prob lem anyw here.

The defendant testified that since co mmitting theoffenses f or which he was conv icted, he has received hi s bachelor's degree in mi crobiolog y from Tennessee Tech. Following graduation, he obtained a position in which he utilized his degree; however, he had to leave thi s employ ment after receiv ing his felony convicti ons due to the employer's policy against employing felons. Since losi ng that job, the appellant hasworked as a chef at greatl y reduced w ages. He al so testified he has married an d has made plans to return to sc hool to earn hi s master's deg ree. The defendant ad mit ted k nowi ng his acti ons were ag ainst the law at the time he committed them. He testified, however, he stopped using marijuana prior to his last year of college and asked his roomm ates not to use drugs aro und him. Accordi ng to the defendant, this t ook place pri or to his learni ng he faced criminal prosecution forthe sale of drug s. He exp ressed his r emorse and desire to receive a second chance.
Kimberly Bullington, a family friend from the defendant's hometown, testified she had know n the defendantall his life and thou ght he wou ld benefit from4 The evidence on t his issue i s not fully developed in the record on ap peal.

The defendant admits in hi s statement in th e presentence report that he arranged for an other drug d ealer from his ho metown to bri ng the cocai ne to the defendant's house, w here the undercov er officer picke d it up and left the money for it. We have not been prov ided with the trial tr anscript and ar

e unaware of the state's ev idence whi ch may or may not contradic

t this contenti on. We note, however , there has been no challenge t o the sufficiency of the evidence that the defendant was g uilty of the s ale of cocaine. 4 a second chance. She testified the defendant had taken on significant responsibil ity within the past two years due to illness of some of his family members. S he als o testified the defendant sometimes worked two jobs to get throug h college. Likewis e, she said the defen dant regretted his involvement in selling drugs.

According to the defendant's st atement in the presentence report, the offenses in question arose when the defendant fir st sold mari juana to an undercover officer, who then repeatedly requested that the defend ant sell him some cocaine. The defendant had no cocaine, although he eventuallyobtained some and sold it to the officer. 4 The defendant admitted hav ing prev iously us ed marijuana two to t hree times per week over a period of four years and denie d ever usin g cocaine

. Two random drug screens performe d at the re quest o f the probation of ficer were nega tive for the presence of cocaine or marijuana. The pres entence report also confirmed the defendant's steady work histor y and educati onal backgr ound.

The defendant s ubmit ted three letters of ref erence attesting to his good char acte r, writt en by a mini ster, pharmacist and busine ssman from his hom etown . The se le tter s uni for mly ap pea led t o the cour t fo r leni ency.

In imposing thesentences for the def endant's two convicti ons, the trial court first denied j udicial div ersion based on the nature and c ircumstances of the offense and the need for deterrence. The court went on to impose a sente nce forthe cocaine offense of four years wi th all but 90 day s suspe nde d "so we can5

mak e sure he gets the mess age" wit h the balance to be served on pr obation conditioned upon Community Corrections. In imposing this sentence, the cou rt did not enunciate w hich, if any, of the sentencing considerati ons or the enhancement and mitigatingfactors it relied on. The tr ial judge did not announce the manner of service of sentence for the mar ijuanaoffense at th e sentencing hearing. However,
a judgment

form in the techni cal record reflects a senten ce of two years wi th all but 90 days suspen ded and the balance t o be served in Community Corrections. The length of this sentence wa s agreed upon by the defendant and the state as part of the plea agre ement.

I

In his first i ssue, the defendant chal lenges the trial cou rt's denial of judicial diversi on. He contendsthe trial court (1) did not consider all of the relev ant facto rs a nd (2) gave undue weig ht to two of the factors, the ci rcumstances of the offense an d the deterrence value to the def endant and othe rs.

The Sentencing R eform Act of 1989 prov ides in perti nent part: If any person who has not pr eviously been convic

ted of a felony

or a Class A misdemeanor is found guilty

or pleads g uilty to a misdemeanor

which i s pun ish able by impr isonment or a C lass C, D or E felony, t he court may, without ent ering a j udgment ofguilty and with the consent of such person, defer further proc eedings and place the person on probat ion upon su ch reasonable conditions as i t may require and for a period of ti me not less than t he period o f th e maximum sentence for t he mi sdemeanor wi th which h e is charg ed, nor not more than the period of the maximum sente nce of the felony with which he is charge d, on the condition that the defendant pa y, in addition to the payment of not less than ten dollar s ($10.00) nor

more than thirty-five dollars ($35.00) per month, as determ ined by the court [as part payment of the expenses of super vision of the defendant]. .

. . Tenn. Code Ann. § 40-35-313(a)(1) (Supp . 1996). The procedure un der this provisi on is commonly

referred toas judicial diversi on. It is sub stantially similar to pretrial diversion; however, judicial diversi on follows a guilty plea and the deci sion6

to grant diversion rest s with t he court, not the prosecut or. State v. Anders on , 857 S.W .2d 571, 572 (Tenn . Crim. App. 1992).

The lower court's denial of judicial divers ion i s subject to a ppellate reversal only if that court abused its di scretion. State v. Ha mmersley , 650 S.W.2d 352, 356 (Tenn. 1983). When a defendant challenges the denial of judi cial diversi on, we are constrained not to revisit the issue if the r ecord contains any substantial evidence s upporting thetrial cour t's decisi on. Hammersley , 650 S.W.2d at 356; accord State v. Carr , 861 S.W .2d 850, 856 (Tenn . Crim. App. 1993) (where the evidence is capable of justifying differing results, this court allows the prosecutor his or her d iscretion o n a decision of w hether to allow pretrial diversi on).

In determining whether to grant judi cial diversion, the trial court must consider (a) the accused's amenabi lity to correction, (b) the ci rcumstances of the offense, (c) the ac cused's cri minal record, (d ) the accused's so cial hist ory, (e) the stat us of the accused's physical and mental heal th, (f) th e d eterren ce value to the accu sed as well a s others , and (g) whether diversion will serve the public's and the acc u sed's intere sts in the ends of just ice. State v. Bonestel , 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (citation omitted). Moreover, the record must re flect that the court has weighed all of the factors in reaching i ts determinati on. Bonestel , 871 S.W.2d at 168 (citations omitted). The court must explai n on the record why the defendant does not qual ify und er i ts analysis, and if the court has based its determination on only some of the fa ctors, it must explain why the se fac tors out weigh the others. Bonestel , 871 S.W.2d at 168 (citations omitted).

In gen eral , thepre senc e of o nly one o f the fa ctor s is sufficient to support a denial of judic ial dive rsion. Sta te v. Thoma s Dailey , No. 02C01-CR00008, slip op. at 4

(Tenn. Crim. App., Jackson, Aug. 21, 1991) (rel ying on Stat e v. Baron , 659 S.W.2d 811 (Tenn. Crim. App. 1983) (applying this rule in th e con text of a denial of probati on)). However, the s upreme court ha s said that two of the5 Among the tri al judge's relevant comments are the foll owing I think [based on] . . . the dete rrence of seeing that peop le who are in these situations should ha ve to face the consequences of their actions, I would deny Judi cial Diversion in thi s case.

. . . I would impose a sentence of four years, and I think that he shou ld serve 90 day

s straig ht time so we can make sure t hat he gets the message[.] The court also i ndicated its concern wi th appropriatel y dealing with an i ndividual who sold drugs on a college campus. W e believe the trial court properly considered whether diversion would serve the public's and the accused 's interests in the ends of justice , notwithstanding its failure to specifica lly denominate its findi ngs as such. 7 factors, the circumst ances of the case and deterrence, may not be give n " controlling weight unless they are 'of such overwhelm ing sig ni fica nce t hat t hey [n eces saril y] outweigh all other factor s.'" State v. Washington , 866 S.W.2d 950, 951 (Tenn. 1993) (pretrial diversion c ase) (em phasis in original) (qu oting State v. M arkham , 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988) ).

In this case, t he trial cour t made its finding s on the record with respect to the relevant factors. The court found the def endant was amenable to correcti on. It found the c irc umst ance s of t he offense "significant" in that the defendant was willi ng to sell dr ugs to a str anger, obtain ed cocaine for the stranger , and was ready and willing to sell drugs on a college campus. The court noted the def endant's lack of a criminal record, p ositi ve social history and good physical and mental health. On the other hand, the cou rt found deterrence o f this defend ant and others was an importantconsiderati on and w as better accompl ished by not granting judicial d iversi on. The court did not explicitly address the public's and the a cc used' s interest in the ends of justice, althoug h it is apparent from the tr ial judge's statements at sentencing that he wei ghed this factor i n conjunction with the others. 5 As such, we disagree w ith the defendant's as sertion that t he tr ial court did not consider all of the relevant fact ors.

In arriving at its d etermination, th e lower court relied on the circumstances

of th e off ense and the need for deterrence. It is o bvious from the8

trial judge's ex

tensive di scussion of t hese two fac tors on th e rec ord t hat h e gave them controlli ng weig ht over the other rel evant factors. The court's di scussion of the circumstances

of the offense and the need for deter renc e consu mes the vast majority of the judge's comments about therelevant considerations. In particular, the trial cour

t was tr oubled wit h the defen dant's wi llingness to sell dr ugs to a stranger, the fact th e defe ndant was engaged in his crim inal ent erprise in a college campus environment, the need for this ty pe of crime tohave conseq uences, and the need for the defendant to lear n his lesson. Contrary to the appe llan t's a ssert ion, we do not believe the trial court abused it s discretion in weighing these factors more heavily than the others. Substantial evidence ex ists to suppor t this actio n.

Accor dingl y, we must hold there is no error in the trial court's deni al of judicial di version. The defendant's first i ssue is w ithout merit.

II The remaining iss ue challenges t he propriety of the sentence impose d
on the defendant. In determiningwhether th e trial cour t has properl y sentenced an individual, this court engages in a de no vo review of the record w ith a presumpti on the trial court's determinations were correct . Ten n. Code Ann. § 40- 35-401(d) (1990). This presumpti on is "conditi oned upon the aff irmative showing in the record that the trial court considered the senten cing principles and all r elev ant facts and circumstances .” State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de no vo review , we must consider theevidence at sentencing, the presentence report, the sentencing principles, the arguments of coun sel, the statements of the defendant, the nature and cha racteristi cs of the of fense, a ny mitig ating and enhancementfactors, and the defendant ’s amen ability to rehabi litation. Tenn. Code Ann. §§ 40-35-210(b) , 40-35-103(5) (1990); Ashby , 823 S.W.2d at 168. On appeal, the appellant has t he burden of showing the sentence impos ed is improper . Tenn. Code Ann. § 40-3 5-401 (d), Sentenci ng Comm'n Comments (1990); Ashby , 823 S.W.2d at 169.6 The state submitte d three enhanceme nt factors for the trial court's

consideration . They w ere factors 1 ( defendant's crimi nal history ), 10 (no hesit ation t o commi t cri me whe re ri sk to h uman li fe washigh ), and 16 (cr ime committed under ci rcumstances i n which pot ential for bodil y injur y to a v ictim was great). P rior to sent encing, the state conceded the i napplicabili ty of factor 1. In its brief to th is court, t he state indirectly concedes the inappli cability of factor 10 but maintains the propriety of factor 16. This court has prev iously r ecognize d that factors 10 and 16 may not be used to enhan ce a sale of cocaine sente nce because the leg islature has already considered the i nherently d angerous characteristics of cocaine by classifying it as a Schedule II drug, and to use this rationale for enha ncement would be duplicative. State v. Keel , 882 S.W.2d 410, 419-21 (Tenn. Crim. App. 1994).

7 The defen dant may have been eligible for classificat ion as an especially mitigated offender, du e to his lack of prior felony

convicti ons, the absence of enhancement factors and the possible pr esence of mitigat ing factors. See Tenn. Code Ann. § 40-35- 109 (1990). Suc h a determination is wit hin the discretion of the trial court. Tenn. Code A nn. § 40-35-109, S entencing Co mm'n Comments (1990). The appellant , however, has not challenged the trial court's determination he i s a standard offender, a nd we decli ne to address thi s issue ex mero motu
. 9

In this case, the trial court failed to place on the record a ny enha ncement and mitigating factors it found , as required by the Sentencing Act

. See Tenn. Code Ann. § 40- 35-210(f) (Supp. 1996). It is imperative t ha t the trial
co urt note its findings

relative to the enhancement and mitigatingfactors on the record in order for this court to undertake meani ngful revi ew of the propr iety of the defendant 's sentence. Because the court did not do so, we conduct our de no vo review without the presumption that the trial court properl y sentenced t he appellant.

First, with respect to the length of the sale of cocaine sentence, all of the enhancement factors s ubmitted to the tr ial court by the state are i napplicable as
a matt er of law. 6 In the absence of any enha ncement factors to ov ercome the pres ump tive minimu m sente nce, th e defenda nt mu st r eceive no more than the minimum sen t ence. See Tenn. Code Ann. § 40 -35-210(c) (Supp. 1996). In this
case of a Class C felon y committ ed by a Ran ge I offender, 7 that sentence i s three years. See Tenn. Code Ann. § 40- 35-111(b)(3) (1990). Thus, we modify the leng th of t he de fen dan t's se nten ce f or sa le of coca ine a ccord ingly.

With respect to thesentence for the s ale of marijuana conviction, the8 Code section 40- 35-102 does not spe cifically authorize a sentence of confinement followed by a term of Commun ity Corrections. However, this section does aut horize a s entence of confinement in conjunction w ith a term of probation. Tenn. C ode Ann. § 40-35-10 2(c)(4) (Supp. 1996). The C ommunity Correction s statute author izes the court to sentence a defendant to Community Correction s as a conditi on of probation in conjunction w ith a suspended sentence, spli t confinement or per iodic confinement und er chapter 35. Tenn. Code Ann. § 40-36-106(f ) (Supp. 1996). Thus, the sen tence imposed is generally

an appropriate alternative to incarcer ation. See also Tenn. Code Ann. § 40-36-302(b) (Supp. 1996 ). 10 defe ndant agreed to the two-year length of thi s sentence as par t of the p le a agreement. The parties ag reed this sent ence would b e concurrent t o the sentence imposed by the tri al court for thesale of cocaineconviction and submitted only the
manner of serviceto the trial court for its considerati on. Thus, th e d efendant's effective sentence for the two convictions is three years.

Next, we turn to the i ssue of the manner of service of this sentence. Having received a sentence of less than eight years, the defendant is presumed to be a favorable candidate for alter native sente ncing. See Tenn. Code Ann. § 40- 35- 102(6) (1990). Moreover, he is elig ible for probati on. See Tenn. Code Ann. § 40- 35-303(a) (Supp. 1996) . He arg ues he should receive str aight probati on, rather than co nfinement coupled w ith probation con ditioned upon Community Corrections. 8

First, we poin t out

that the d efe ndant did re ceive an al tern ative sentence. Split confinement is an alternative sentencing option. State v. James A. Howard , No. 03C01-9608-CC-0 0284, sli p op. at 7 (Tenn. C rim. App., Knox ville, February24, 1997), appl. perm. app. filed (Tenn., May 6, 1997); State v. James E. Allred , No. 03C01-9504-CR-00110, slip op. at 2 (Tenn. Crim. App., Kn oxville, March 20, 1996); State v. M arjorie Je anette Sneed , No. 03C01-941 0-CR-00369, slip op. at 3 (Tenn. Crim. App., Knoxville, Oct ober 1 7, 1995); Erne st Le e Lan ds, J r. v. State , No. 03C01-9404- CR-00145, sl ip op. at 3 (Tenn. Crim. App., Knoxvil le, May 19, 1995), perm. app. deni ed (Te nn. 1995); State v. Da nny Alli son , No. 03C01- 9403-CR-00106, slip op. at 3 (Tenn. Crim. App., Knoxville, March 23, 1995); State
v. Alvin Lee Lewis , No. 01C01-9404-CC -00125, slip op. at 7-8 (Tenn. C rim. App.,11

Nashvil le, March 14,1995) , perm. app. denied (Tenn. 1995); see Tenn. Code Ann. § 40-35-104(c) (Supp. 1996). The benefit the defendant enjoyed in being presumed a suitable candi date for alternati ve sentenci ng has been depl eted.

Acco rdin gly, we move to the question of pro bation . The defendant seeks total probation. Pr obation is, i ndeed, an alternative sentencing option. Tenn. Code Ann. § 40-35-104( c)(3) (Supp. 1996); Tenn. Code Ann. § 40-35-303( b) (Supp. 1996). However, the burden rest s with t he defendant to show that he is entitl ed to probation. Tenn. Code Ann. § 40-35-303(b) (Supp. 1996); see State v. Bi ngham , 910 S.W.2d 448, 455 (Tenn. Crim. App.) , perm. app. denied (Tenn

. 1995). In Bingham , this court

observed: It shou l d be pointed out that determining whether a defend ant is entitled to an alte rnat ive se nten ce ne cess arily r equire s a separate inquiry from that of determini ng whether the defendant is entitl ed to full probat ion. Thi s is so becaus e the inquir ies invol ve different burdens o f proof. W here a defenda nt is entitled to the statutory presumption of alternative sentencing, the State has t he burden of overcoming the presumption with evidence to the c ontr ary. Conve rsely, the defendant has the bur den of establishin g sui tabi lity forfull prob atio n, eve n if the defenda nt is entitled to the statutory presum ption o f alte rnative se ntenci ng. Bingham , 910 S.W.2d at 455. To prevai l in the que st for full probat ion, a defendant must demonstrate t hat p robation “will ‘subserve the ends of justice and the be st inter est of both the public and the defendan t.’” Bingham , 910 S.W.2d at 4 5 6 (quoting S tate v . Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App . 1990)). In Bingham , we cited t he followingfactors whi ch, although “ not controlli ng the di screti on of the sentencing court,” sho uld be considered in determini ng the appropriateness

of probation: (1) The nature and charact eristics of the crime, under Tenn. Code Ann. § 40-35-210(b)(4) (Supp. 19 96); (2) the defendan t’s potential for rehabilitation, under Tenn. Code Ann. § 40-35-103(5) (1990); (3) whether full probation would “unduly dep r eciate the seriousness of the offense,” under

Tenn. Code Ann. § 40- 35-103(1)(B) (1990); and (4) whether a sentence of full probat ion w ould “ provi de an eff ecti ve12 deterrent,” under Tenn . Code Ann. § 40-35-103(1)(B) (1990 ).
Bingham , 910 S.W.2d at 456. The nature and charac teristics of the criminal conduct involv

ed is a factor that

is related logical ly to the i ssue of depreciati ng the seriousness of the offense. State v. Ha rtley , 818 S.W.2d 370, 3 75 (Tenn. Cr im. App. 1991). W hen these factors serve as the only basis for deny ing probati on, the nature and characteri st ics of th e off ense mu st be “esp ecially viole nt, horr ifying, shockin g, reprehensibl e, offensive, or othe rwise o f an excessiv e or exag gerated d egree,”outweig hing all other factors favoring prob ation. State v. Trav is , 62 2 S.W.2d 529, 534 (Tenn. 1981) (emphasis added). See also Hartley , 818 S.W.2d at 375.

Be aring in mind that our review in this case is de novo , withou t a presumption of the correctness of the trial court’s decision, we take note of perti nent undisputed facts in evidence. The defendant presents a history of good citizenship prior to his use of marijuanaand his sale of not only this drug but also cocaine . He has dem onst rate d a ca paci ty f or productive living and in dealing with family members with illnesses, has shown compas sion and commitment. Moreover , the trial court’s sentence entails the payment of sub stantial fines which have not been contested on this appe al.

There are, of course, counterwei ghts to these conside ra t i o n s . We share the trial court’s expressed concern that the defendantengaged in this activ ity
on or near a campus

of higher lear ning. The defendant w as will ing to place these controlled substances in to commerce by selling to a strang er. Fur thermore, althou gh his college degree is certainlythe product of dis cipline, di ligence, and hard work, we acknow ledge that the defendant’ s educational atta inment and professio nal capabilities

also encumber

him wi th the wherewithal an d the responsib ility to understa nd and o bey society’s rules. These aspects of the crimina l conduct involved are sufficiently offensive, tendingto outweig h other conside rations favor ing13

the grant of pro bation, so as to compel us to conclude t hat the defendant has not carried hi s burden of demonstrat ing that he i s entitled to full probation.

Havin g so con cluded, we hold that spli t confinement is appr opriate. We modify the sen te nce in order to require that the defe ndant serve 60 days in conf inement in the county jail, w ith the balance of the effective sentenc e of three years to be probated conditioned upon partici pation in Communit y Corrections for and durin g the f irst ye ar fo llowin g rele ase f rom c usto dy.

_______________________________ CURWOOD W ITT, JUDGE

CONCUR:

_______________________________ GARY R. WADE, JUDGE

_______________________________ DAVID H. WELLES, JUDGE