1 It is questionabl e whether the p resentence repor t in t his case even mini mally meets the requirements of T enn. Code Ann. § 40 -35-207 (1990). The inform ation, where provided, is cursory at best an d is altogeth er void in oth er areas , e.g. inform ation relatin g to th e app ellant 's fam ily history , chil dren, if

any, phy

sical/ mental histor

y, employ ment history , etc. 

# FILED
October 18, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE SESSION, 1999

STATE OF TENN ESSEE, * * No. 03C01-9805-CR-00178 Appellee, * * GREENE COUNTY vs. * * Hon. James E. Beckner, Judge KENYETTA FIELDS, * * (Fac ilit atio n of a Felo ny) Appellant. *

CONCURRING IN PART, DISSENTING IN PART I am unable to join with the majority in concluding that a penitentiary sentence is warranted in this

case. The appellant was con victed of a class C felony; he does not have a criminal hist ory evincing cl ear disregard for the law; nor have past efforts at rehabilitation failed. Ac cordingly, he is c

learly entitled to the presumption of an alternative sentence. Tenn. C ode Ann. 40-35-102(5),(6). Moreover, I find no proof in the record to support any Section 103 consideration r equisite for the imposition of a sentence of confinement. At the sentenci ng hearing, the State pres ented no proof, relying exclusively on the pre sentence report. 1 Although the presumption of an alternative sentence may be rebutted by "evidence to the contrary," I find the proof fails to do so in this cas e.

The trial court ordered total confinement of the appellant based upon (1) his prior record, (2) appel lant's admitted use of cocaine, ( 3) employment record that "doesn't appear to be good," (4) deterrence, and (5) to av oid depreciating the seriousness of the offense. I agree with the majority that these f indings were insufficient to warrant total incarceration. The appell ant's criminal history consists of2

two misdemeanor and two tr affic offenses. The record does not support a less than good employment history . The record shows unemploy ment at the time of sentencing with prev

ious employment. No other pr oof on this issue was pres ented. With referen ce to fac tors fou r (4) and f ive (5), the appellat e courts o f this sta te have repeatedly held that, absent specific proof, deterrence and ser iousness of the offense are insufficient grounds to deny an otherwise eligi ble offender's entitlement to an alternative sentence. See State v. Ashby , 823 S.W.2d 166, 170-171 (Tenn. 1991); State v. Bingham , 910 S.W.2d 448, 455 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995); State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). Finally, I find the trial court's applic ation of the appellant's admitted use of cocaine contained in the presentence report misplaced . The presentence report was never intended to s erve the purpose of gatheri ng incriminating ev idence from an offender in order to justify den ial of an alternative sentenc e. Indeed, presentence information is essential in tailoring a s entencing alternative best suited to fit the offender. The offender is encouraged t o participate in the prepar ation of the presentence report in or der that information provided by the offender may be utilized by the senten cing court in arriv ing at an individualized sentence under sentencing guidelines.To utilize the offender's state ments within the report t o deny an alternative sentence i s counter-productive i n that it discourages tr uthfulness and is inconsistent with the purposes of the presentence rep ort.

Although the trial court did not so find, the majority finds that the circumstances of this cri me (facilitating sale of coc aine) are so violent, horrifying or shocking as to requir

e total confinement in order to av oid depreciating the seriousness of the offense. See generally , State v. Hartley , 818 S.W.2d 370, 374- 75 (Tenn. Crim. App. 1991). This conclusion is based upon the fact that the drug transaction occurred w ithin 200 yards of a school.The purpose of the Drug-Free School Zone Act, see Tenn. Code Ann. § 39-17-432(a) ( 1996 Supp.), is to provid e Tennessee students an environment in which they can learn absent th e dangers3

accompanying drug acti vity. The Act seeks t

o secure this goal by

creating enhanced and mandatory minimum sentence s for offenses occurring in a dr ug-free school zone to serve as a deterrent to such unacceptable conduct. Id. The Act does not indicate that drug offenses comm itted in close proximity to a school are inherently more serious than all other drug offenses. In the presen t case, the sale was not made to a minor, nor w as a minor involved i n any way in the tr ansaction. Moreover, the undisputed pr oof in the record reveals that the transaction occurr ed after 5:00 p.m., well after the s chool's dismissal time for that day. Without more, there is no evidence that the mere proximity to the school made the off ense "reprehensible and offensive" as c ompared to other drug transac tions. Although I would not conclude that cons ideration of the situs of the cri me would never be relevant in determining the "seriousness of the offense," I do not bel ieve that the proximity of the drug transaction to the school in the case before this court is sufficient, by itself, to necess itate a sentence of total confinement.

Thus, for the reasons expresse d above, I conclude that the St ate has failed to present sufficient proof to over come the presumption that a sentence other than confinement would result in successful rehabilitation o f the appellant. Under the facts of this record, the app ellant and socie ty would best be served by granting a sentence other than total confinement. Accordingly, I w ould remand this case to the trial court for a determinati on of which sentencing alt ernative would best s

erve the needs of the appe llant and society.

____________________________________ DAVID G. HAYES, Jud ge