FILED

February 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY 1998 SESSION

STATE OF TENNESSEE, )

) NO. 02C01-9705-CC-00196

Appellee, )

) WEAKLEY COUNTY

VS. )

) HON. WILLIAM B. ACREE,

DARWIN RODREGUS WINDHAM, ) JUDGE

)

Appellant. ) (Sentencing - Sale of Cocaine)

FOR THE APPELLANT:

JOSEPH P. ATNIP (At Sentencing;

 Of Counsel on Appeal)

District Public Defender

111 Main Street

P.O. Box 734

Dresden, TN 38225

CLIFFORD K. McGOWN, JR.

(On Appeal)

113 North Court Square

P.O. Box 26

Waverly, TN 37185

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

CLINTON J. MORGAN

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

THOMAS A. THOMAS

District Attorney General

ALLEN J. STRAWBRIDGE, JR.

Assistant District Attorney General

414 S. Fourth Street

P.O. Box 218

Union City, TN 38261-0218

OPINION FILED: 

AFFIRMED - RULE 20

JOE G. RILEY,

JUDGE
2

ORDER

The defendant, Darwin Rodregus Windham, appeals the sentence imposed

by the Circuit Court of Weakley County following his guilty plea to the sale of

cocaine over 0.5 grams in Indictment No. 3097 and the sale of cocaine under 0.5

grams in Indictment No. 3098. The trial court sentenced him to concurrent

sentences of eight (8) years for the Class B felony sale of cocaine and three (3)

years for the Class C felony sale of cocaine. The trial court ordered that, after

serving one (1) year in the Weakley County jail, defendant could serve the

remainder of his sentence in community corrections. Defendant appeals, claiming

that the trial court should have granted probation. We affirm the judgment of the

trial court pursuant to Rule 20, Tennessee Court of Criminal Appeals.

Because one of the offenses is a Class B felony, defendant is not entitled to

the statutory presumption of alternative sentencing. See Tenn. Code Ann. § 40-35-

102(6). Moreover, the defendant carries the burden of establishing suitability for

total probation. Tenn. Code Ann. § 40-35-303(b); State v. Boggs, 932 S.W.2d 467,

477 (Tenn. Crim. App. 1996). To meet this burden, defendant must show that

probation will “subserve the ends of justice and the best interest of both the public

and the defendant.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.

1995) (citations omitted). Defendant has not carried his burden.

The trial court sentenced defendant to the presumptive minimum within the

range for each offense. Furthermore, defendant was allowed to serve his sentence

on community corrections after serving one (1) year in the county jail. Considering

the sentencing principles along with the relevant facts and circumstances, including

the nature of the offenses, we believe the trial court imposed an appropriate

sentence.
3

After a thorough review of the records, briefs, and the law governing the

issue presented for review, it is the opinion of this Court that the judgment of the

trial court should be affirmed pursuant to Rule 20, Tennessee Court of Criminal

Appeals.

 

JOE G. RILEY, JUDGE

CONCUR:

 

JOE B. JONES, PRESIDING JUDGE

 

PAUL G. SUMMERS, JUDGE