### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 23, 2002 Session

STATE OF TENN ESSEE v. CHARLE S EUGENE JONES

Direct Appeal from the Criminal Court of Sullivan County

No. S44,406 Phyllis H. Miller, Judge

No. E2001-01639-CCA-R3-CD March 12, 2003

The defenda

nt, Charle s E. Jones, pled guilty to possess ion of mar

ijuana wi th intent to sell or deliver, possession of drug paraphernalia, and unla wfu l posses sion of a w eapon. F or these convicti ons, the trial court classified the defendant as a Range I sta ndard of fender and orde red him to serve a n agg regat e one y ear sen tence, c onsisting

of concu rrent se ntencesof one y

ear for his possession o f ma

ri ju an a w it h i nt en t t o s el l o r d el iv er co nv ic ti on , e le ve n m on th s a nd tw en ty- ni ne da ys for his possession of drug paraphernalia c onviction, and thirty day s for his unlawful possession of

a weapon c onviction . The stat e agreed to suspend the two latter sentences, and the trial court sentenced the defendant to serve

four yea rs of probation and one y ear of incarceration, which was to be suspended after the defendant ser ved ni ne ty d ays in the cou

nty jail. The defenda nt now app eals his sentence, alleging (1) tha t the trial court er

roneousl y modified h

is plea a greem ent with th

e state after it had been submitted to the trial court for approval, (2) that the trial court improperly denied his request

to serve the entir

ety of his sen

tence on probatio n, and (3 ) that the trial cou rt imprope

rly weighed and applied various enhancement and mitigating factors. After reviewing the record, we find that none of the defendant’s allega tions merit relief and therefore affirm the de fendant’s sentence.
Tenn. R. App.P. 3; Judg ment of t he Trial Court Affirm

ed.

J ERRY L. S MITH , J., deliver ed the opi nion of the

court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODA LL , J., joined.

Richard A . Spivey , Kinspor t, Tenne ssee, fo

r appell ant, Char

les Eug ene Jones.

Paul G. Summers
, Attorn ey Gene ral & Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Greel ey Wells, District Attorney

General; and Le

wis Combs, Assistant District Attorney General; for appellee, State of Tenne ssee.-2- OPINION

Factua l Background

A police officer

approached

the defendant , who

was s ittin g in a

Rang er pi ck-u

p truc k next
to a gas stationpay

phone at a

pproximate

ly 1 2:30 a.m. After identifying himself, the officer asked the defendant for identification and noticed four bag gies of mar iju ana sitting in the defendant’s vehicle in plain sight. The officer subsequently arres ted the defendant and performed a sea rch incident to arre st. The search revealed a “ roach clip,” rolling papers, and a knife with a blade over four inches in length. The defendant pled guilty to the above-referenced c harges and received a

plea agreement

for a one-y ear sentence for his possession conviction and a suspended se ntence for his two other convictions. The manner of service for the de fendant’s on e- ye ar sentence was left to the discretion of the trial court, and the defendant requeste d probation. The t rial court conducted a probation hearing

and subse quently

grante d the def

endant a split-con fineme nt sentence, which included four yea

rs of probation and one ye ar of incarceration. This peri od of inca rcera tion was to be suspended after the defenda nt serve d ninety day s in the county jail. As mentioned supra , the defendant now appe als his sentence, challenging the authority of the court to give him a sentence of split-confinement

and alleging that the trial court abused its discre tion by apply

ing improper weight to the enhancement and mitigating fac tors that were applied to his sentence.

Standard of Review for a Trial Court’s Sentence Determination

This Court’s review of the sentence imposed by t he trial c ourt is de

novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). H owever, this presumption is conditioned upon

an affirmative showing in the record that the trial judge c onsidere d the sent encing principle s and all relevant facts and circumstances. State v. Ashby , 823 S .W.2d 166, 16 9 (Tenn. 1991). If the tria l court fails to comply with the statutory directives, there is no presumption of correctness and our review is simply de novo. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to show thatthe sente

nce is improper. Tenn. Code Ann. § 40-35-401(d) (Sentencing Commission Comments). In conducting our review, we are required
, pursuant to Tennessee Co de Annotated section 40-35-210, to consider the following fa ctors in senten cing:

(1) the e vidence , if any , recei ved at the trial and the sente ncing hearing ; (2) the p resente nce rep ort; (3) the p rinciple s of sente

ncing a nd arguments as to sentencing al ternativ es; (4) the n ature a

nd chara cteristi cs of the

criminal conduct involved; (5) evidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) any statement the defendant wishes to make in his own behal f abou t sent encin g.
Tenn. Code Ann. § 40-35-210(b).-3-

An especia

lly m itig ate d or stand ard off

ender c onvicted

of a Class C, D or E fe lony is presumedto be a favorable candidate for a lternative s ent encing in the absence of evidenc e to the

co nt ra ry. Id. § 40-35-1 02(6). A trial cou rt must pre sume that a defendant sentenced to eight y ears
or less who isnot an off

ender f or whom inc arcer

ation is a p

riority is subject to alternative sente ncing. State v. Byrd , 861 S.W.2d 3 77, 379-8 0 (Tenn. Crim. App. 1993). I t is furthe r presum ed that a
sen tence o ther tha

n incarc eration

would re sult in succ essful re habilitat ion of the defenda nt unless rebutted by sufficient evide nce in the record. Id. at 38 0. Th is pr es um pt io n m ay be r ebutted by evidence demonstrating the defendant’s unfitness for proba tion or alternative sentencing and may include t he follow ing sent

encing consider ations:

(A) Confinement

is necessary

to protect society by

restraining a defendant who has a long h istory of crimin al conduc

t; (B) Confineme

nt is nece ssary

to avoid depreciating the seriousness of the offense or confinement

is partic ularly

suited to provide an effective de

terren ce to othe

rs likely to commit similar offenses; or (C) Measure s less res trictive than conf

inement h ave frequently or recently been applied unsuccessfully

to the defendant.

Tenn. Code Ann. § 40-35-1 03(1). A court ma y a lso apply the mitigating

and enhancement factors set forth in section s 40-35-1 13 and 114 , as they are relevant to

the sect ion 40-35- 103 consid

eration s. Id. § 40-35-210(b)(5). Finally , a court should consider the defendant’s potential or lack of potential for rehabilitation when determining whether to g rant an alternative sentence. Id. § 40-35-103(5).

Authority of Trial Court to Sentence Defendant to Serve Four Years of Probation

The defendant contends that the trialcourt improperly se ntenced him to serve four ye ars of intensive probatio n aft er serving nine ty d ay s in the county

jail. The

defenda nt argu es that thi s sentence is excessive and exceeded the scope of the his plea agreement in which he ag reed to an aggr egate one-yea r sentence for his convictions, but the manner of service for those convictions was reserved to the tria

l court’sdiscreti on. We find that the tr

ial cour t acted w ith in it s purview by ordering the defendant to serve his sentence in this manner. Fir st, the trial court was not required to place the defen dant on pr obation f or a per iod of time

equal to or less than the maximum amount period of time to which the defendant had agree d. SeeTenn. Code Ann. § 40-35-303(c) (Sentencing Commission Comments) (“There is no requirement that the duration of probation be the same as the length of the sentence imposed.”). Moreover, the trial cour twas required to sentence the defenda nt to serve a probat

ionary sentenc e of at le ast the le ngth of t he minimum s entence

that he wa s eligib le to receive statutorily and not gre ater than the maximum sentence that he was eligible to rec eiv e st at ut or il y. Id. (“[T]he du ration of probatio n must be the same a s the leng th of t he statutory minimu m sentence. Further, even though the leng th of the actual sentence is restricted to that required by the particular

ra nge, t he judge may

fix the length of probation up to the statutory maximum for the class of the offense.”). The defendant agreed to ser

ve a one-ye ar sentencefor his possession of

marijuana with intent

to sell or deliver conviction, which is a Class E felony with a one-4-

to six year sentencing range. Id. § 40-35-1 12(c)( 5). Thus, a four- ye ar proba tionary term falls within this permissible range. According ly, we find that the trial

court wa s authori zed, per s tatute, to suspend all butninety day s of the defendant’s one-y ear sentence and subsequent to serving that time, place hi m on super

vised pro bation fo r four y ears.

Denial of Full Probation

The defendant alleges that the trial court ac ted improp erly

by deny ing his request to be placed

on probatio n for the

entirety of his sentence. The defendant argue s that he s hould hav e rece ived full probation because

he is pre sumed, pe

r statute , to be a su

itable candi date fo r alte rnati ve sen tenci ng. However, we find t hat the tr ial c ourt act

ed prope rly by g ranting the defe ndant a se

ntence o f splitconfinement. We first note that the record indicate s that, whe

n conside ring the defenda nt’s req uest for full probation, the trial

court considered the sentencing principles an d all relevant facts and circumstances

. Accord

ingly , we will a

fford the court’ s finding s a presu mption of c orrect

ness

. See Ashby
, 823 S.W.2d at 169. Secondly, we note that because the defe ndant was conv

icted of a Class E fe lo ny a nd recei ved a one-y ear sentence for that conviction, he is entitled to the statutory presumption that he is a suitable candidate for alternative sentenc ing. See Tenn. Code Ann. § 40-35- 102(6); Byrd , 861 S.W.2d at 379-80. Howeve r, althou gh the d

efenda nt is presu med to be a

suitable candida te for alternative sentencing, he still carr ies the burden of

demonstr ating th at he is a

suitable candida te for full probation. See State v. Bingham , 910 S.W.2d 448, 455 (T enn. Crim. App. 1995), overruled on other grounds by State v. Hooper , 29 S.W.3d 1, 9-10 (Te nn. 2000) ; State v. Jonathan Thornton
, No. E2001-02491-CCA-R3-CD, 20 02 W L 31174211, at *5 (Tenn. Crim. App. at Knoxville, Sept. 30, 20 02) (clarify ing that, unlike situations where the state bears the burden of overcoming the presumption that the defenda nt is a suitable candidate for alternative sentenc ing, the defendant bears the burden of proving that he is a suitable candidate for full probation). While the trial court

re cognized that the defendant was entitled to a statutory presumption t hat he was a suitable candidate for probation, the trial c ourt declined to grant full probation a n d instead sentenced the defendant to serve his term in split-c onfineme nt. The tr ial cour t based its decision on its finding that the d efend ant is a poor candidate for rehabilitation because he was untruthful with the court, did not tak e respo nsibility for his actions, and demonstrated no comprehension of the severity of his offenses. Because the defe ndant ch alleng es th e trial court’s findi ng as im prope r, we wi ll ex amine the va lidi ty of each o f the b ases fo r the co urt’s findi ng. During the defendant’s probation hearing, the trial court questioned the defend ant, aski ng him to expound on several aspects of the circumstances surrounding his offense. I n response to the trial court’s inquiry

regarding his reasons for being parked next to a gas station pay phone at 12:30 a.m., the defendant stated

that he was parked at that location during that time beca use his leg was hurting and because he had stopped to get something to dr ink. The tria

l court fo und that th

is explana

ti o n
was in credible. Lack of truthfulness is probative on the issue of amenability to rehabilitation and is, theref ore, an a ppropria te factor to consider when granting or denying

probation. State v. N eely
, 678 S.W.2d 48, 49 (Tenn.1984). Becau se the defendant ’s truthf ulness is an appropriate alternative-5-

sentencing consider

ation, we find that t

his concl usion was an approp riate basis for finding the defend ant to be a po or cand idate for al ternat ive se ntenc ing. When reaching this conclus ion, the trial court also appears to have considered the def endant’s refusal to reveal the name of his drug source . The trial court questioned the defendant directly

and specific ally

asked him to reveal the name of the person who supplied him with the marijuana that the police f

ound in his p ossession . After i nitially reply ing that he rece ived the m arijuan a from a friendwhom he had known for many ye ars, th e defen dant late r refus ed to rev eal the n ame of hi s source, claiming once that he di d not reme mber his friend’s name and then later clarify ing that he didnot wish to implicate his friend. The trial court stated that the defendant’s failure to respond appropr iately indicated the defendant’s lack of desire to rehabilitate. The trial court claimed that the requested informat ion was re levant be cause it

would allo w the cou

rt to include a

prohibitio n again st any interaction with this individual as a condition of the defendant’s probation. “It is improper for a trial court to deny alter native sentencing based solely on a de fendant’s refusal to reveal the names of his sources.” See State v. Ric ky K eele , No. 02C01-9805-CC-00139, 1999 WL 150871, at *4 (Tenn. Crim. App. at Jackson, Mar. 22, 19 99) (rec ognizing “the poss ible jeopardy to safety that could re sult from this disclosure”). “However, a trial court may consider suc

h refusal along with other factors in determining whether alternative sentenc ing is in th

e best inte rest of the defendant and

society.” Id. In the instan t case, w e find tha

t the tria l court did

not rely solely

on the defe

ndant’s r efusal to name his d

rug sou rce, but th at the trial court also considered the defendant’s lack of candor with the court. Thus, the trial court did not err by consideri ng the defendant’s refusa

l to name his drug source when finding him a poor c andidate for alternative sente ncing. See State v. Gene Allan Log ue , No. W1999 -017 95-CC A-R3 -CD, 2000 W L 1843248, at *5 (Ten n. Crim. Ap p. at J ackso n, Dec. 15, 20 00) (ci ting Ricky Keele and finding that the trial court acted proper

ly w hen denying

alternative sentencing because the trial court considered the defendant’s prior

criminal record and untru

thfulnes s with the c ourt, as w ell as his r efusal to name his drug so urces) ; State v. Alexander A. Lee , No. W1999-01086-CCA-R3-CD, 2000 WL 705296, at *4 (Tenn. Crim. App. at Jackson, May 26 , 2000 ) (cit ing Ricky Keele and finding that the trial court acted properly

when denying

alterna tive sente ncing b ecause

the trial court considered “other f actors, such as se

riousnes s of the of

fense a nd effective de

terren t”); State v. Nora M cFall , No

. W1999-01086-CCA-R3-CD, 2000 WL 705296, a

t *3 (Tenn . Crim. App. at Jackson, May 26, 2000) (citi ng Ricky

Keele and finding that the trial cou rt did not rely solely on the def

endant’ s refusa

l to reveal the names of his sources); Ricky Keele , 1999 WL 150871, at *3-*4 (finding that the trial court didnot rely solely

on the def

endant’s refusal to reveal the name of his drug source when deny

ing alternative sente ncing, but that the trial court also considered the defendant’s prior c onvictions and his honest

y w ith the co urt). The

refore , the def

endant’ s alleg ation lac

ks merit.

Enhancement and Mitigating Factors

The defendant argues that the trial court inappropriately applied an enhancement

factor and fa iled to apply

certain applica ble mitig ating f

actors w hen dete rmining whether to sentence him to

serve a portion of hi s s entence in incarceration. When sentencing the defendant, the trial court applied one enhancement and two mitigating f actors to the defendant’s case.1 The 2002 amendment to Tennessee Code Annotated sec tion 40- 35-114 added a new enhance men t

fact or (1) and re designated the previous en hancem ent factors (1) throug h (22) as ( 2) th rou gh (2 3), resp ectively. See Tenn. Cod e Ann. § 4 0-35-11 4 (Sup p. 200 2). Bec ause the def endant’ s probati on heari ng was held i n 2001, we wil l ref er to the secti on numbers in effect at the ti me of the defendant’s heari ng.

-6- Turning first to the challenged ap plicat ion of the enhancement factor, we obser ve that the trial court applied enhancement factor ( 1), 1 that the defendant had a previous history of criminal conviction s or cr iminal behavior, to the defendant’s sentence. Tenn. Code Ann. § 40- 35-114(1). The trial court found the defendant’s previous conviction, a 1973 convic tion for driving while under the influence, was applicable to enha n ce his sentence. Furthermore, althoug h the defendant comp lain s that the trial court should not have done so, the court appropriately considered the defendant’s long-term marijuana use, over twenty ye ars of us e accor

ding to th e defendant, und

er this enhancement

factor. See, e .g. , State v. John Robert Go odale , No. M2000-02 140-C CA-R3-CD, 2001 WL 1077965, at *15 (Tenn. Crim. App. at Nashville, Aug. 15, 2001) (“While we share the defendant’s concer

n that [an a

dmission of

past mari

juana use ] in a pre- sente nce report, without further proof, can serve as an enhanc ing factor, it is clear that the defe ndant’s m arij uana use does constitute ‘crimina l behavio r.’”). After f

inding th ese fac tors applic ab le under this enhancement factor, the trial

court the n conclud ed that it w ould aff

ord this factor gr eat weig ht. Acco rding to Tennessee Code Annotated section 40-35-114(1), a trial court may enhance a defendant’s sentence b y consider

in g his previous convictions and prior criminal behavior. Tenn. Code Ann. § 40- 35- 114(1). The def

endant a dmits and the record reflects that he has one pr ior conviction, the DUI mentioned above, and that he told the court that he had used marijuana for over twenty ye ars. Thu s,
we find tha t these facts may be considered under this enhancement fac tor and that the trial court appropriately

applied this enhancement factor to the defenda nt’s sentence. The defend ant al so cha llenge s the t rial c ourt’ s deci sion to wei gh this enhancement factor he av il y. However, the weight applied to each enhancement or mitigating factor is not prescribed by statute, but is left to the sound discretion of the court, provided the court’s decision is supported by the record

and comports with the sentencing principles. See Stat e v. Sa ntiago , 914 S.W.2d 116, 125 (Tenn. Crim. A pp. 1995). We find that the trial court’s determination of this factor’s applica bility and the weight that the court afforde d this factor ar e suppor ted by the trial cour t’s findi ngs on the reco rd, name ly th at the defendant ’s prior c onviction and long -term ma

rijuana use indicate the defendant’s life-long strugg le with substance abuse and that the defendant had not demonstr ated a w illingne ss to over come his p

roblem. Turning next to the mitigating factors applied t o the d efendant’s sentence, the trial court found that mitigating factor (1), that the defendant’s conduct neither caused nor threatened

to cause serious bodily injury , was applicable to the defendant’s sentence , as well as the no n-statut ory mitigating factor that the defendant r eceived an honorable discharg e from the military. SeeTenn. Code Ann. § 40-35-113(1), (13). However, the trial court noted that it would afford these mitigating factors little wei ght, as t

hey were “ far” ou

tweighed by

th e appl icable enhancement factors. The defendant challenges this decision, arguing that the trial court failed to afford these two mitigating factors appropriate weight. Aga in, we note that the weight applied to each mitigating factor is left to the discretion of the trial court, provided that the decision is supported by the rec ord a nd is in accord with our sentencing principles. See Sant iago , 914 S.W.2d at 125. The trial court’s decision-7-

to afford mitigati ng fac tor (1) little weig ht was ap propria te in ligh t of this Cou

rt’s holding that t

his factor is gene rally entitled t o little weight. See, e.g. , State v. Haley B . Upchurch , No. M2001-03170- CCA-R3-CD, 2002 WL 31014840, at *1 (Tenn. Crim. App. at Nashville, Sept. 9, 2002). Moreover, the police disco v ered the defendant with marijuana in his possession while he was sitting in the driver’s seat of his parked vehicle, a circumstance that tend s to bolster the trial court’s decision

to afford this factor little weight. Regarding the tr ial court’s decision to afford the defendant’s honorab le military

dischar ge little weight
, the trial court was not required to consider the defe ndant’s honorab le discharge as a mitigating f actor and therefore did n ot err by c onsidering the factor but giving it little weight. See State v. Ronald Collier , No. 02C01-9402-CC-0029, 1994 WL 542973, at *3 (Tenn. Crim. App. at

Jackson, Oct. 5, 1994) (“[T]his Court has not yet held that the recognition of an honorable discharge a s a mitigating factor is mandatory .”). Fi na ll y, the def

e ndant argues that the trial court failed to consider his work history as an applica ble non-statutory mitigating factor. See State v. Kelley , 34 S.W.3d 471, 483 (Tenn. C rim. App. 2000). Th

e trial c ourt foun d that the defenda nt had a g ood work h

is tory, as opposed to an excellent work history, and ther efore stated that the “excellent wo rk hi st or y” mitigati ng fac tor did
notapply to the defe

ndant’s case. While a “good” work history is sufficient to allow mitigation of

a defenda nt’s se ntence , the weight afforded to the fac tor may be “r elatively slight.” See State v. Jonathan D. Rosenb alm
, No. E2002 -00324-C CA-R3-CD, 2002 WL 31746708, at *10 (Te

nn. Crim. App. at Knoxvi lle, Dec. 9, 2002). Therefore, althoug h the trial court could have decreased the defendant’s sentence by

applying this fa

ctor, we infer

that the c ourt would

have g iven the f

actor lit tle weight based on its discussion of the factor on the recor d. In sum, we find that the defendant’s sentence of split-confine ment is suppor te d b y t he application of the enhancement and mitigating f actors outlined above.

Conclusion

The judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE