### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs F ebruary 1 3, 2002
STATE OF TENN ESSEE v. FELICIA JOA NN CANNON
Direct Appeal from the Circuit Court for Bedford County

No. 14855 Charles Lee, Judge

No. M2001-01875-CCA-R3-CD - Filed May 17, 2002

After convictions for

sale and delivery of

a Schedule II controlled substance, the trial court sente nced defendant to nine ye ars and t

en months i ncarce

ration. D efenda

nt appeals asserting she is entitled to Community Corrections Program. We disagree and affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILL IAMS , J., de livered t he opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined.

Donna Leigh Hargrove, District Public Defender, and Andre w Jackson Dearing III, Ass istant Publi c Defender, for the appellant, Felicia Joann Cannon. Paul G. Summers, Attorney General and Reporter; Renee W . Turner, Assistant Attorney Genera l; William Michael McCown, Distri c t Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On Februar

y 22, 2001, defenda

nt, Felicia Joann Cannon, was indicted by a Bedford County grandjury for one count of sale of a Schedule II c ontrolled substance, cocaine, and one count of delivery of a Schedule II controlled substance, coca ine base, in violation of Ten n essee Code Annotated section 39-17-417. On May 21, 2001, defendant entered a n open plea of guilty to the charge of sale of a Schedule II controlled substance after both charges we re merged together.

On June 18, 2001, defendant was sentenced as a Range I standard

offender to nine years and ten months at 3 0% rele ase elig ibility. De fendant was also assessed a fine of

$2,000.00. Notice of appeal was filed on July 9, 2001.-2- Facts

The trial cou rt hel d a sentencing hearing following the entry of defenda nt’s guilty plea. Defendant

testified that she is a 23-year-old single mother of two children, ages two and seven. She stated that she sold drugs while on medical l eave. She was not able to ge t a job bec ause

her youn gest daughter had hea rt proble ms. She sta

ted that sh

e is a sing le pare

nt, living a

lone, with rent and bills to pay, including feeding her da ughters. She stated that her daughter had just had open-heart surgery, and the doctor requested that defendant not work. She further stated that her

daughter had stayed in the hospital for about a month-and-a-half.

Defendant

testified that she had used marijuana

and cocaine in the past, but that she had not used any drugs since she was arrested. The pr esentence report reflects that de fendant stated

that she didnot want to work and felt like selling drugs was fun. She stated that her youngest daughter was staying wi

th her au nt becau se both of

defenda nt’s par ents are alcoholi cs.
On cross-examination, defendant admitted that she had previously been convicted for theft in January of 1996, at which time she was ordered to ser ve a sentence on

probation and48 hours in jail, along with $350.00 in restitution. In October of 1996, defendant’s probation was revoked, and she served a 30-day sentence. Def endant was convicted in 1996 of driving on a revoked license and received a sentence of six months probation and wa s ordered to pay a fine of $50.00 and costs. A probation violation warrant was issued in May of 1997 because she did not pay he r fines an d costs. Howeve r, up on payment of those fines and costs, the probation violation warrant was dismissed.

In July of 1997, defendant was convicted of possession of drugs. She received a six-mon

th suspended sentence and was ordered to serve 48 hours in ja il and pay $250.00 in

fines an d costs. Her proba t ion was revoked in August of 1998, and she served 30 days in jail. Defe ndant was
con victed in March of 1998 for criminal impersonation and was placed on pr obation for 90 days

. Defendant

testified, however, that although she knew that she had bee n pla ced on probation, she thought that the conviction was for possession rather

than criminal impersonation. Defendant was also convicted of driving on a revoked license in December of 1999. She rece ived a sentence of six months probatio n and wasordere d to pay a $ 50.00 fine and costs . D efendant’s probation was revoked in Dece mber of 2 000, and s he was or dered to serve 45 days in ja

il.

Defendant

admitted t

hat she f ailed to a ppear in court on two prior occasions. Defendant admitted that when she wrote a statement for t he p urpose of the presentence report, she did not mention her sick daughter. However, she did write that she f elt that selling drugs was fun.

Defendant

testified that her daughter was born on December 22, 1998. Defendant claimed that the doctor told her not to work, however, she did not have any documentation to verify this. She further stated that she made quite a bit of money selling drugs and that s elling dru gs was he r only
source of income. She stated that she made enough mo ney to pay her car payment, pay her re nt, and buy clothes, shoes, medicine, and food for her children. She stated that she basically made her living
as a drug de aler. De

fendant finally stated that her child’s father is incarc erated

in Rutherf

ord County-3-

and cannot pr

ovide any financi al suppor

t. She also

stated tha

t she rea lized tha t she did no t want to continue selling drugs. Subsequently, she moved back home with her mother and lost her car, her home, and everything else.

At the conclusion of the hearing, the trial court found that defendant was not entitled to any mitig ati ng factors. The trial court found that defendant ha d a history of criminal convictions and criminal behavior, in addition to those necessary to establish the a pp ropriate range. Tenn. Code Ann. § 40-35-11 4(1). The trial c ourt also found tha

t defend ant had a

history of

unwillingness to com

ply withreleas e in the community in that defendant flaunted her lack of rega rd for the system when she failedto appear ontwo separate occasions. Tenn. Code Ann. § 40-35-114(8). The court found that defendant had a conviction for driving on a revoked license and, while waiting to go to court on that revoke d license charge, received a nother revoked license charge. The court also took int o consideration the fact that defendant had children to care for. The court finally determined that ther e were no mitigati ng facto

rs, only e nhancing factor s, and impo se d a sente nce of nine years and ten months as a Rang e I st andard offende r. The tr ial cour t denied a

lternati ve sente

ncing bec ause defendant had a history of frequent and unsuccessful sentencing alterna tives to incarceration applied to her. Tenn. Code Ann. § 40-35-103(1)(C). Defe ndant subsequently appealed

and asked this Court to consider her for the Community Corrections Program. Analysis

When a criminal defendant challenges the length, range, or manner of service of a sentence, the reviewing court must c onduct a de novo review of the sentence with a presumption that the determinations made by th e trial c ourt are

correct. Tenn. Co de Ann. § 4 0-35-401 (d) (199 7). This presumption, however, is “conditioned upon the aff irmative showing in

the record that the trial court considered

the sentencing principles and all relevant facts and c ircumstances.” State v. Ashby , 823 S.W.2 d 166, 169 (Tenn. 1991). In the event that the record fa ils to show such consider ation, th e review of the sentence is purely de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sen t encing Co mmission Comm ents.
Our review require s an analys is of (1) the evidence, if any, rece ived at the trial and sentencing hearing; (2) the pr esentence report; ( 3) the pr inciples o f sentencing and t he argum ents of counsel r elative t o sentencing alternatives; (4) the nature and cha racteristics of

the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own b ehalf ; and (7) the defendant’s potential for rehabilitation or treatment. Tenn. Code A nn. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

A defendant who is an especially mitigated or standard offe nder convicted

of a Class C, D,
or E felony is presumed

to be a fa vorable candida te for a lternati ve sente

ncing opti ons in

the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6) (1997). However, a defendant who commits “the most s evere o ffense s, poss ess[es a] criminal histor[y] evincing a clear disregard for the laws and morals of soc iety, and [hasfailed] past eff orts at re habilitat ion” doesnot enjoy t

his-4-

presumption. Tenn. Code Ann. § 40-35-102(5), (6). The defendant’s potential for rehabilitation,
or lack thereo f, should be e xamined w

hen dete rmining wh

ether a n altern ative se

ntence i s appropriate. Tenn. Code Ann. § 40-35-103(5). Sentencing issues a re to be d etermine d by the fa

cts and circumstances presented in each ca se. See Statev. Taylor , 744 S.W.2d 919, 922 (Tenn. Cr im. App. 1987).

The presumption for alternative sentencing can be re butted, and if it is, a trial court may impose a sentence of confinement. When imposing a sentenc e of total confinement, the trial court should base its decision on the considerations listed in Tennessee CodeAnnotated § 40-35-103(1): (A) Confineme

nt is necessary to protect society by restraining a def endant who has a long hist

ory of cr iminal conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the of fense or confinement

is p arti cularly suited to provide an effective deterr ence to others likely to commit similar offenses; or (C) Measure s less res tricti ve th an confinement have frequently or rec ently been applied unsuccessfully to the defendant.

Defendant

argues that the trial court should have allowed her to serve her sentence on Community

Corrections. The Tennessee Community Corrections Act was developed to “punis h selected, nonviolent felony offenders in front-end community based alterna tives to incarceration, thereby reserving secure confine ment facilities for

violent felony offenders.” Tenn. Code Ann. § 40-36-103(1). The program is available for (1 ) Persons who, without this option, would be incarcerated in a cor rectiona l institution ; (2) Persons who ar e convicted of property-related, or dr ug/alcohol-related felony offense s or other

felony of fenses n ot involvin g crimes a gainst the person . . . ; (3) Pers ons who ar

e convic ted of non

violent fe lony offe nses; (4) Persons who are convicted of felony off enses in which the use or possession of a weapo n was not in

volved; (5) Persons who do not demonstrate a present or past pattern of behavior indicating violence; [and] (6) Persons who do not demonstrate a pattern of committing violent offenses . . . . Id. § 40-36-106(a)(1)-(6). Those who ar e sentenced to incarceration or a re on escape

at the time of sentencing are not el igible f or the program. Id. § 40-36-1 06(a)( 6). Def endant is “otherw ise eligible.”

In th e instant c ase, whi le we ag ree with defenda nt that she

is eligible

for the Co mmunit

y Corrections Program because of the non-violent nature of her offenses, Tenn. CodeAnn. § 40-36- 106(a), we note that she is not automatically entitled to this relief. State v. Ball , 973 S.W.2d 288, 294 (Tenn. Cr

im. App. 19 98); State Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. Ap p. 1987). T he statute simply sets forth minimum standards to guide a trial court when determining if a particular defendant is eligible to be placed on the Community Corrections Program. Tenn. Code Ann. § 40- 36-106(d).-5-

Defendant

was convicted of a Class B felony as a Range I standard offender. We note that the applicable sentencing range is eight (8) to twelve (12) ye ars, Tenn. Code Ann. § 40-35-112(a)(2), and defenda

nt was not g iven th e maximum sentenc e but inste ad, nine y ears an d ten month s. Additionally, because defendant was convicted of a Class B fel ony, def endant is not entitled to the statutory presumption for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). Finally, because defendant was sentenced to nine year s and ten months, defe ndant is not eligible for probation, Tenn. Code Ann. § 40-35-303(a). We conclude that the trial judge was corre ct in determining that defendant has a history of criminal convicti ons in addi tion to that

necessa ry to esta blis h th e approp

riate ra nge. In f

act, defendant has tw o conv ictions for theft, four convictions for driving on a revoked license, one conviction for possession of drugs, two convictions for criminal impersonation, and two convictions for failing to appear in c ourt. We co nclude th at the tri al judge p roperly used thes e convic tions to enhance defendant’s sentence and deny alternative sentencing. Finally, we note th at the tri al court found tha

t d e fendant

had a hist

ory of unwillingnessto complywith conditions for release into the community. Indeed , on four separate occasions defendant was sente nced to pr obation a nd subseq uently ha d those se ntencesrevoked . There

is ampl e evidence to support that measures less restrictivethan confinement have been wasted on defe ndant in the past. See genera

lly State v. Grigsby , 957 S.W.2 d 541, 547 (Tenn. Cri m. App. 199 7); State v. Williams , 2001 Tenn. Crim. App. LEXIS 678, No. M2000-02593-CCA-R3-CD (Tenn. Crim. App. at Nashville, Aug. 28, 2001); St ate v. Matthews , 1998 Tenn. Crim. App. LEXIS 404, No. 02 C01-9704-CR-00158, 1998 WL 148317, at *2 (Tenn. Crim. App. at Ja ckson, Ma

rch 31, 1 998); State
v. Miller , 1997 Tenn. Crim. App. LEXIS 226, No. 03C01-9512-CC-00382, 1997 WL 106677, at *6 (Tenn. Crim. App. at Knoxville, March 11, 1997). As such, we affirm the trial c ourt’s holding and conclude that defendant is not entitled to Community Corrections Program.
CONCLUSION Accordingly, we affirm the judgment of the trial court.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE