IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT NASHVILLE MAY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9707-CC- 00267 Appellee, * RUTHERFOR D COUNTY VS. * Hon. J. S. Daniel, Judge RAMONA DAVIDSON, * (Sale of Cocaine-Three Counts and Neglect of a Child) Appellant. *

For Appellant : For Appellee : Jeffrey S. Burton John Knox Walkup Assistant Public Defender Attorney General and Repor ter 201 West Main Street Suite 101, Court Square Bui lding Deborah A. Tullis Murfreesboro, TN 37130 Assistant Attorney Gener al Cordell Hull Building, Second Floor 425 Fifth Avenue North Nashville, TN 37243 William C. W hitesell District Attorney General Dale Robinson Asst. District Attorney General Third Floor, Judicial B uilding Murfreesboro, TN 37130

OPINION FILED:__________________________

AFFIRMED AS TO CONVICTIO N AND SENTENCES; REMANDED FOR CONSIDERATION OF ALTERNATIVE SENTENCE

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Ramona Davidson, wa s indicted on eight counts of sale of cocaine and three counts of chi ld neglect. Pursuant to a negotiated plea agreement, the defendant entered pleas of g uilt to three counts of cocaine sales and one count of neglect of a child. The trial court imposed Rang e I sentences of six, three, and three y

ears for the cocaine sales and e leven months and twenty -nine days for neglect of a child . Probation was denied and the six-year sentenc e was ordered to be served consec utively to the concur

rent three-year sentence s, for an effective sentence of nine years.The defendant was fined $4,000.00.

In this appeal of right, the defendant comp lains that the trial court erred by ordering c

onsecutive sentences. Fur thermore, she asserts that the trial court should have grant ed probation. We affirm the judgment of the trial cour t.

Over a three-month period during the summer and early fall of 1996, the defendant sold cocaine on eight different occasions to a vari ety of confidential informants. On November 8, 1996, the defendant was indicted on each sale. She was also indicted on thr ee counts of neglect of the childr en in her custody. The plea agreement as a result of the Nov ember 8 indictment involv ed guilt determinations for three sales involv

ing less than .5 gram of coc aine.

Less than two weeks after the indictment, the defendant was arrested while driving

a vehicle with a s

tolen license tag. Poli ce found crack cocaine underneath her car seat. The defendant pl ed guilty to simple pos session and was sentenced to eleven months and tw enty-nine days, consec utive to the sentences from the November 8, 1996, indic tment; all of this sentence w as suspended. The defendant agreed to a $750.00 fine.3 When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

In calculating the sentenc e for Class B, C, D, or Efelony convictions at the time of these offenses, the presumptiv e sentence is the minimum within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35- 210(c). If there are enhancement factors bu t no mitigating factors, the trial court may set the sentence above th e minimum. Tenn. Code Ann. § 40-35-210( d). A sentence involving

both enhancement and mitigating factors requires an assi gnment of relative weight for the enhancement factors as a means of incr easing the sentence. Tenn. Code Ann. § 40-35-210.The sentence may then be reduced within the range by

any weight assi gned to the mitigating factors present. Id.1 The first four criteri a are found in Gray . A fifth category i n Gray , based on a specific number of prior felony conviction s, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35- 115, Se ntencing Co mmission C ommen ts. 4

Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications for the imposition of co nsecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976). In that case, our supreme court ruled that aggravati ng circumstances must be pr esent before placement in any one of the classifications. Later,in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an addition al category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution :

[C]onsecutive sentences s hould not be routinely impos ed ... and ... th e aggrega

te maximum of c

onsecutiv

e terms must be reasonably related to the severity of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the t rial court only upon a determination that one or more of the following criteria 1 exist:

(1) The defendant is a professional criminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous ment ally abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous offe nder whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk5 to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; or (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supr eme cour t had rule d that be fore con secutive sentencing could be imposed upon the dangerous offender, as now defined by subsection (b)(4) in the statute, other conditions mus t be present: (a) that the crimes involved ag gravating circ umstances; (b) that consecuti ve sentences are a necessary means to protect the public from the def endant; and (c) that the term reasonably relates to th e severity of the offenses.

In State v. Wilkerson , 905 S.W.2d 933 (Te nn. 1995), our high court reaffirmed those principles and r uled that consecutive senten ces cannot be required for any of the classifications "unless the terms reasonably relate to the severity

of the offenses committed and are necessary in order to protect the publ ic from further serious criminal conduct by the defendant." Id. at 938. The Wilkerson decision, which modified guidelines adopted in State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), gover ning the sentencing of danger ous offenders, described sentencing as "a human process that neither can nor should be r educed to a set of fixed and mechanical rules." Wilkerson , 905 S.W.2d at 938 (footnote omitted).6 The plea agreement stipulated the length of th e sentences. The only questions for the trial c ourt were whether the sentences should be serv ed consecutively and w

hether probation should have been granted.

Now twenty-four y

ears of age, the defendant dropped out of school just before she had completed her hi gh school education. She w as married but had separated at the time of the offenses, accord ing to the presentence inv estigation. She and her husband have two daughters who at the time of sentencing were four and six years old. During the period the defendant has been incarcerated, since February 26, 1997, her husba nd has had custody of the two children.

The defendant has had a sporadic wor k history and has either quit, been released, or terminated from s everal of her places of employ ment. At one of her jobs, she got into a fig ht with another woman. The defendant had no employment and no visible means of support. Yet, her prior record included on ly two traffic offenses. The defe ndant failed to meet with the probation off ice investigator on at l east one occasion before sentence w as imposed. When she eventually met with the presentence investigator, she explained that she had sold the drugs "to support my t wo kids and me. My hu sband and I had split up and I wasn't receiving

anything from him to care for these children. I had no transportation to get to a j ob." The report included a statement by a detective that some four months after the guilty plea, the defendant was "still in the business of selling drugs." The defendant reported that she had some back pr oblems but was not under any kind of medication.While admitting that she had used crack cocaine and marijuana since the age of tw enty-one, she claimed that s he had stopped prior to committing these offenses.7 The tria l court ob served tha t the def endant, who had cla imed to h ave quit using illegal drugs in February of 1996, had entered a plea of guilt t o possession of crack cocaine in late Nov ember of that year. In this c ase, the defendant was indicted for eight sales of c ocaine which took place during the late summer of 1996. In the hearing before the trial judge, the defendan t conceded that she was ineligible for probation if the effective sentence was nine years or more:

[B]ecause, obviously,if the Court orders one of them consecutive it will be a nine year sentence and she will be ineligible for probation at that point in time. So, it renders that issue m[oot]. And by her own testimony the Court could run these sentences consecutive based her on testimony that it was her principal s

ource of livelihood at the time.... And I asked the Court to consi der that and run them concurrent at this time. And if the Court decides to run those sentences concurrent, again, based on her lack of a prior record and the time she has currently served, I'd ask the cour t to place her on probation .... The trial court concluded th at the defendant warranted consecutive sentencing because she sold drugs as her primary source of income and qualified as a professional criminal. Tenn. C ode Ann. § 40-35-115(b)(1). During argument, the state pointed to inconsistenci es in her testimony about not only the use or sale of drugs but whether tra nsportation had been availabl e on the date she failed to meet with her probation officer. There was evidence that the defen dant continued to sell drugs after the initial ar rest and even after a second ar rest for possession of crack. It was hardly contested that she sold cocaine to support herself. Thus, th e trial court had a proper basis for consecuti ve sentencing.

When determining a defendant's eligibilit y for probation, trial c

ourts must individually e

xamine each sentence the defendant has r eceived. State v. Langston , 708 S.W.2d 830, 83 2 (Tenn. 1986). In this appeal, the state properly8 concedes that the defendant is elig ible for probation because each of the four sentences she received were eight years or less and because she did not commit any of the crimes listed i n the statute that bars elig ibility. Tenn. Code Ann. § 40-35- 303(a).

A defendant with an effective sentence exceeding eight years is eligible for probation so long as the individual sentences are within the eligible criteria set forth by Tenn.Code Ann. § 40-35-303. See State v. Goode , 956 S.W.2d 521, 527 (Tenn. Crim. app. 1997) ( citing State v. Langston , 708 S.W.2d 830 (Tenn. 1986)); see Sentencing Commission Comments

. State v. Michael Lyn n Walton , No. 01C01-9509-CR-00290 (Tenn. Crim. App., at Nashville, Nov. 12, 1997).

It appears from the record that the trial judge did not cons ider probation, split confinement, or any other alternative senten ce. That is understandable based upon the defendant's s tipulation that she was i neligible for such treatment. The state now ar gues that while probati on should have been considered, there exist good and valid grounds for denial. That may be so. It is, however, more appropri ate for the trial court to make that determination.

The judgment and the consecutive sentences are af firmed. The cause is remanded so that the trial judge may consider whether an alternative sentence is appropriate.

________________________________ Gary R. Wade, Presiding Judge9 CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Jerry L. Smith, Judge