### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON October 7, 2003 Se ssion STATE OF TENNESSEE v. ALVETO MARTE L HIGGINS Direct Appeal from the Circuit Court for Hardin County No. 8131 C. Creed McGinley, Judge

No. W2002-02498-CCA-R3-CD - Filed December 31, 2003

The defenda

nt enter ed open g uilty pleas to th

ree cou nts of the saleof less tha

n 0.5 gr ams of cocaine, possession of over 0.5 grams of cocaine with int ent to sell or deliver, simple possession of marijuana, and driving on a revoked license. The trial cour t gave the defendant an

effective sentence of nine year s to be served in the Tennessee Department of Correction. The defendant c ontends that th e trial c ourt erred in deny ing him alternative sentencing. The judgments of the trial court are affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OHN E VERE TT W ILLI AMS , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and N ORMA M C G EE O GLE , JJ., joined. Chadwick

G. Hunt, Sa

vannah, Tenness ee, for

the appe llant, Alv eto Marte

l Higg ins. Paul G. Summers, Attorney Gene ral and Reporter; Kathy

D. Asling er, Assis tant Attor ney Genera l; G. Robert Ra

dford, D istrict At

torney Genera l; John W. Over

ton, Chief

Deputy District Attorne y General, for the appellee, State of Te nnessee. OPINION The defendant, Alveto Martel Higgins, wa s indicted for three counts of selling less than 0.5 grams of cocaine, a Schedule I I controlled

substanc e (Class C f

elony); three

counts of deliver y of less than 0.5 grams of cocaine (Class C felony ); one count of possession of mor e than 0.5 grams of cocaine with intent to manufacture, deliver, or sell (Class B felony ); one count of simple possession of marijuana, a Schedule VI controlled substance (Class A misdemeanor); and one count of driving on a revoked, canc elled, or suspende d license

(Class B misdemeanor). The three counts of delivery of cocaine were dismissed, and the defendant entered ope n guilty pleas to all of the other ch arges . Following a sentencing hearing, the trial court sentenced the defenda nt to fou rs year s for each conviction of selling less than 0.5 grams of cocaine ; nine yearsfor the conviction of possessing over 0.5 grams of cocaine

with intent to sell or deliver; eleven months and twenty -nine days for the-2-

conviction for simple

possessio n of marij uana; and thirty day s for driv

ing on a revoked license . All sentences were or

dered to be serve d concur

rently , for an e

ffectiv e sentence of nine yea rs. The defendant timely appeale d, contending tha t th e trial co urt er red in denying al ternat ive se ntenc ing. The judgments of the trial court are aff irmed. Facts The arrest warrants for the defe nd ant reveal that the defendant sold crac k cocaine to a confidential informant twice on November 13, 2000, and once on November 20, 2000. On January 10, 2001, the defendant was stopped and arrested f or drivin g on a revoked license. A subsequent search uncovered one bag of marijuana on his person, another bag of marijuana in the vehicle, and a bag of cocaine weig

hing over six grams in the vehicle.

Analysis The defendant contends on appeal that the trial court er red in denying

him any form of alternative sente ncing. This Court’s r eview of the sente nce impos ed by

the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fa

ils to compl

y w ith the statutory directives, the re is no presumption of correctness and our revi ew is de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we a

r e required, pu rsuant to

Tenness ee Code A

nnotated section 4 0-35-210 , to consid er the f oll owing factor s in sen tenci ng: (1) [t]he evidence, if any, received at the trial and the sentencing he aring; (2) [t]h e presentencereport; (3) [t]he principles of sentencing and arg uments as to sentencing alterna tives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and40-35-114; and (6) [a]ny statement the defendant wishes to mak e in th e defen dant’ s own b ehalf a bout sente ncing.
In determining if incarceration is appropria te, a trial court

should consider the need to protect society b y restraining a d

efenda nt having a long h istory of crimin al conduct, the nee d to avoid depreciating the seriousness of the offense , whethe r confinement is pa

rticular ly a ppropria te to effec tively

deter ot hers like ly to commit similar offenses, and whether less restrictive measures 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 166, 169 (Tenn. 1991).
A court may also c onsider the mitigating and enhancing fa ctors set forth in Tennessee Code Annotated sections 40-35-113 and 114 as they are relevant to the

section 4 0-35-103 consider ations.-3-

Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Ad di ti on al ly, a court should consider the defendant’s potential or lack of potential for rehabilitation when determin

ing if an alternative sentence would be appropriate. Tenn. Code Ann. § 40- 35-103(5); Boston , 938 S.W.2d at 438. Under the Criminal Sentencing Reform Act of 1989, tria

l judgesare enc ourag ed to use alternatives to incarceration. An especially mitigated or standard offender convic ted of a Class C, D, or E fe lo ny i s presumed to be a favorable candidate f or alternative sentencing options in the absence of evidence to the contrary . Tenn. Code Ann. § 40-35-102(6). A defendant sentenc ed to eigh t years or

less, with certain exceptions, is eligible for probation. Tenn. Code Ann. § 40-35- 303(a). There is no mathematical equation to be utilized in determining sentencing alternatives. Not only should the

sentenc e fit

th e offense, but it should fit the offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Batey , 35 S.W.3d 585, 588-89 (Ten n. Crim . App. 2000). Indeed, individualized punishmen t is t he essence of alternative sentencing

. State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary , sentencing must be de termined on a case -by -case basis, ta iloring each se ntence t o that particular

defendant based upon the facts of that case and the circumstances of that defendant. State v. Mo ss , 727 S.W.2d 229, 235 (Tenn. 1986).
It is apparen t from the record that the trial court considered the a ppropriate sentencing principles and all r

elevant facts a nd circu mstance s. Ther efore, our revi ew is de novo with a presumpt io n of co rrectness. The trial court ordered the de fendant’s sentence to be served in the Tennessee Department of Correction. The defenda nt concedes that he is not entitled to the presumption that he is a

favora ble cand idate fo r alt ernative sentencing, because he wa s convicted of a Class B felony . Additionally, the defendant was sentenced

to more than eight y ears, so he is not eligible for prob ation. The

trial cou rt prope rly found tha

t t he defendant

had a history of c

riminal convictions or crimin al behav ior in add ition to thos e neces sary

to establi sh the range. Tenn. Code Ann. § 40-35-114(2). The presentence report indicates that the defendant has a prior conviction for assault. He also stated

that he used “weed all the time” and

used coc aine on a

couple of occasio ns. The trial court

properly found tha

t there wereno applicable mitigating factors. See id. § 40-35-113. The trial court

increased each felony

sentence for the felonies based on the enhancement factor by one year ove

r the minimum. The wei ght giv en to each enhancement or mitigating factor is in the discreti on of the t

rial cou rt. State v. Madden , 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002). The record supports t

he trial c ourt’s de

nial of a lternati ve sente

ncing. This arg

ument is without meri

t. Conclusion Based on the for egoing and the record as a whole, the judgments of the tr ial court are affirmed.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE