# FILED
May 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9708-CC-00298 Appellee ) ) HENRY COUNTY vs. ) ) Hon. JULIAN P. GUINN, Judge LUTHER EARL McCUTCHEON, ) ) (Sale of cocaine over oneAppellant ) half gram) For the Appellant : For the Appellee : Donald E. Parish John Knox Walkup Ivey, Parish & Johns Attorney General and Repor ter 12880 East Paris Street P. O. Box 229 Peter M. Coughlan Huntingdon, TN 38344 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
Robert "Gus" Radf

ord District Attorney General P. O. Box 686 Huntingdon, TN 38344

OPINION FILED: AFFIRMED PURSUANT TO R ULE 20
David G. Hay

es Judge1 If the appel late recor d is inadequ ate, the reviewi ng court must presume that the trial judge ru led corre ctly. See State v. Ivy , 868 S.W .2d 724, 728 (Tenn.Crim .App. 1993). 2 OPINION

The appellant, L utherEarl McCutcheon, was indicted by the Henry County Grand Jury i n a four c

ount ind ictment , charg ing him with t wo counts of a

class B felony sale of cocaine and two alternative co unts of a class B felony deliv ery ofcocaine. The two offenses for sale of cocaine and the accompanying alternative counts for delivery
were severed and, following a jury trial, the appellant was found not guilty of

sale and delivery of cocaine. The appellant subsequently pled guilty to the re maining count of sale of cocai ne ov er one-half gram and, pursuant t o a plea agreement, receiv ed an eightyear sentence with the manner of service of the sentence to be determined by the trial cou rt. At the sentencing hear ing, the trial court i mposed a split confinemen t sentence, requiring the appell ant to serve continuous confine me nt of one year in the county jail, followed by s upervised probation for the r emainder of th e sente nce. The appellantappeals this sentencing determination co ntending that the trial court erred in denying him a non- incarcerative co mmunitycorrectio ns sente nce. Aft er review, we affirm. A sentencing hearing w as schedu led forApril 9, 1997. At the heari ng, no testimony

was presented by

the appellant or by the Stat e. The appellant reliedupon a sentenc ing memo randum p reviously f iled and t he pre-se ntence re port. Add itionall y, we note that the transcript of the g uilty plea hearing w as not included in th e record , therefore, we are p recluded f rom a review of the natur e and circumstances of the offense. 1 In denying a non-incar cerative sentence, the tr ial court noted: [T]his Court finds as i ts reason s for not granting a total suspended sentence or a compl ete comm ission to Communi ty C o rrections for the entire period the following r easons. The circumstances of this offense. This man knowingly and intentionally placed himself directly in the middle of an ongoing dope operation and voluntarily part icipated . Total suspension would not be in the best interest of justice, it would not be in the best interest of this defendant, and it certainly wouldn’t be in the best interest of the public. I have considered the deterrent effect, perhaps more so in this case than other cases of a like nature, because of the peculiar circumstances of the case. Lastly, I am of the opinion tha t confinement is necessary to avoid deprecating the seriousnes s of the offense.3 Review by this court, of the le ngth, r ange, or manner o

f servi ce of a

sentence is de novo with a pr

esumption t hat the determination made by the sentencing court is correct. Tenn. Code Ann. § 40-35-401(d)(1990). This presump tio n only applies, however, if the record demonstrates that the sentencing court proper ly con sid ered relevant sentencing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the case before us, the record reflec ts that the sentencing cour t cons idered relevant sentencing principles; thus, the presumption applies. The burden is on theappellant to show that t he sentence i mposed was i mproper. Sentencing Co mmi ssion Com ments, Tenn. Code Ann. § 40-35-401(d). The appellant argues on appeal tha t the facts of this case are an a logous to those in State v. Ashby , 823 S.W .2d at 16 6. Howeve r, s uch a comparison is misplaced. The defendant in Ashby was convicted of a class C felony and, therefore,
was entitled to the pre sumptio n of an al ternative sentence. The appellant in this case
was convicted of a class B felony and, thus, was not e ntitled to the presumption of an alt ernative sentence. Moreover, i n Ashby the trial court imposed a pe niten tiar y sentence. In this case, the tr ial court granted an alt

ernative sentence. We conclude that theappellant has failed in his bur den of establishing that the sentence im posed by the trial court is incorrect. Findi ng no error of law req uiring reversal, we affirm the judgment of the trial court in acco rdance with Rule 20, Tenn. C t. Crim. App.

_______________________________ ____ _ DAVID G. HAYES, Jud ge
CONCUR:

________________________________ WILLIA M M. BARKER, Judge

________________________________ JOE G. RILEY, Judge