# FILED
May 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9709-CR-00369 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, GLENN RAY, ) JUDGE ) Appellant. ) (Denial of Alte rnative Sentenc ing)

FOR THE APPELLANT : WILLIAM D. MASSEY 3074 East Street Memphis, TN 38128 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter CLI NTO N J. MOR GAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General PERRY S. HA

YES Assistant

DistrictAttorney

General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION

The defendant, Glenn Ray, was c onvicted in the Shelby Coun ty Crimi nal Court upon guilty pleas to on e (1) count of possessionwith the intent to sell cocaine under 0.5 grams and one (1) count of the sale of cocaine unde r 0.5 grams. He was sentenced as a Range I offender to concurrent terms of three ( 3) years and fined $2,000 for each offense. The trial court denied alternative sentencing. On appeal, defendant challenges the trial c ourt’s denial of alternative sentencing

. We affirm the judgment of the trial court.

I

Defendant was indicted for the sale of and possessing w ith the intent to sell
or deliver over

0.5 grams of cocaine, all Class B felonies. These offenses occurred in June 1995. In a subsequent indi ctment, defendant was charged with the

sale of and possession with the i ntent to sell or del iver under 0.5 grams of cocaine, all Class C felonies. These offenses occurred in October

1995 while defendant was released on bond for the June off enses. Pursuantto a negotiated plea agreement , defendant pled guilty to one (1) count of possession with the intentto sell under

0.5 grams of cocaine and one (1) count of the sale of cocaine under 0.5 grams. He received an agreed sentence of concurrent

terms of three (3) years and fined $2,000 for

each count with the iss ue of alternative sentencing to be determined by the tri al court. As to the June offense, defendant testified at the sentencing hearing that he “found” the drugs on the ground near some apartments. Defendant maintained that he was not selling dr

ugs. However, w

hen the trial court expl aine d that acc epting moneyin exchange for drugs meant “ selling,” defendant conceded that he had been selling drugs. The following exchange occurred betw een defendant and the tr ial court:3 THE WITNESS: I h ad never sold - -

been selling dope. I just -- THE COURT: Oh, you didn ’t g e t

any money forit -- you didn’t askfo r money -- selling m eans you gi ve them the d ope , and they tried to give youthe money. That’s what selling -- like you buy a loaf of bread

. If you get aloaf of bread from Kroger’s, you’ve gotto give them som e money, and they give you the bread -- let you g et the bread. That’s sel li ng bread at Kroger. A ll right. Do y

o u understand? THE WITNESS: Yes, sir. THE COURT: What we re y o u

doing? Selling rocks? THE WITNESS: No, si r. I don’t sel l

rocks. THE COURT: You don’t sell rocks.

Okay. Wha t were you -- what-- I thought they were offering you money for the rocks -- did they? THE WITNESS: Yes, sir. THE COURT: Did you give t he m

the rocks? THE WITNESS: Yes, sir. THE COURT: We ll, what i s that ?

What did you call that? THE WITNESS: Well, I me an that’ s

selling. THE COURT: That’s what I call it to

[sic]. Why did you say you’re no t selling . . . didn’t sell the rock? THE WITNESS: I h ad got a hold [of

it], and I just so l d it, you know. THE COURT: Sol d it. Everybo d y

that sells gets a hold of it.4 The fact that you claim you

-- you f ound a rock of it do esn’t mean that selli ng i t is no longer selling

it. . . Defendant testified that he was empl oyed full time and would abi de by any conditionsof alternative sentencing . He claimed that he never sold drugs, except forthese two instances. He stated that he was remorseful for his actions and would not be involved in any further criminal ac tivity. How

ever, he acknowledg ed that the October 1995 offense occurred whi le he was released on bond for the June 1995 offens e. Furthermore, he admitted that he had given the police a false ad dress when he was arrested in June. Defendant had a prior criminal r ecord consisting of four (4) misdemeanors. The earliest o

f these offenses,malicious m ischief, w as reduced fr

om a third degree burglary charge. T he trial court specifically found that defendant was untruthf ul i n hi s testimo ny, which reflect ed on d efendant’s potential for rehabilitation. T he court noted that the second offense occurred while defendant wasreleased on bond for the first offense. The trial court furthe r found that granting alter native sentencing would depreciate the seriousness of the offense. Therefore, the trial court den ied alternative sent encing.

II

This Court’s review of the sentence i mposed by the trial court is de novo with
a presumption of correctness. Tenn.Code Ann. § 40-35-401(d). This presumpti on is cond itioned upon an affirmative show ing in the record that the trial judg e considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to

comply with the statutory directives, there is no presumption of correctnes s and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (T enn. 1997). Under the Criminal Sentencing Reform Act of 1 989, trial judges are encouraged to use alternatives to i ncarceration. An especially mitigated or standard5

off ender convicted of a Class C, D or E felony is presumed to be a favora bl e candidate for alternative sen tenci ng options in the absence of ev idence to the contrary. Tenn. Code Ann. § 40-35-102(6). In determining if incarcer ation is appropriate, a

trial court may

consider the need to protect society by restraining a defendant hav ing a long history of cri minal conduct, the need to avoid depreciating the seriousness o f the of fense, whether confinementis particularly appro p riate to effectively deter others likely to commit similar offenses, and whether le ss restric tive meas ures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d at 169. A court may

also consider the mitigating and enhancing factors set forth in Tenn. Code Ann. §§ 40 -35-113 and 114 as they are relev ant to the § 40-35-103 considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App . 19 96). Additionally, a c ourt should consider the defendant’s potential or la ckof potential for rehabilitation when determining if an alternat ive sentence would be appropri ate. Tenn. Code Ann. § 40-35-103(5); State v. Boston , 938 S.W.2d at 438. Individualized

punishment is the essence of alternative sentencing

. State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). Se ntencing must be determined on a case-by-case basi s, t ai loring each sentence to that particular defendant based upon the facts of that case and the ci rcumstanc es of tha t defendant. State v. Moss , 727 S.W.2d 229, 23 5 (Tenn. 1986).

III

The trial court found, and we a gree, that

defendant’s testimony was less than credible. The defendant's lack of cr edibilit y is an appropriate cons ideration and reflects o n a defendant's potential for rehabil itation. State v. Dowdy , 894 S.W.2d at 306. We also agree that the need to avoid depreci ating the seriousness of the offenses weighs against al ternative sentencing. Defend an t has a prior criminal6

historyand c ommitted the second drug offense while he w as on bail for the June offense. A trial court may properly consider t hese enh ancement factors in determining if incarceration is appro priate. See State v. Boston , 938 S.W.2d at 438; Tenn. Code Ann. §§ 40-35-210(b)(5), 40 -3 5- 11 4( 1) an d ( 13 )( A) . We also note that measures less restrictive than co nfinement have proven unsuccessful for this defendant. The trial court considered the appropriateprinciples of sentencing and found that defendant was not a good cand idate for alte rnative sentenc ing. These findin gs are entitled to a

presumption of correctness. According ly, the judgment of the tri al court is affirmed.

JOE G. RILEY, JUDGE

CONCUR:

DAVID G. HA

YES, JUDGE

WILLIAM M. B

ARKER, JUDG E