# FILED

January 13, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9611-CR-00432

Appellee, * SHELBY COU NTY VS. * Hon. Carolyn W ade Blackett, Judge GREG SIMMONS, * (Sentencing)

Appellant. *

For Appellant : For Appellee : William D. Massey John Knox Walkup Attorney Attorney General and Repor ter 3074 East Street Memphis, TN 38128 Georgia Blythe Felner Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 James Challen Assistant District A

ttorney General Shelby Cou nty Distric t Attorne y General's Office 201 Poplar Avenue, Third Fl oor Memphis, TN 38103

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Greg Simmons, pled gui lty to two counts of dr iving on a revoked license, reckless driving, and simple possession of cocaine. For these four Class A misdemeanors, the tr ial court imposed concurr ent sentences of ninety days and fines of $500.00 on each count. The single issue presented for our review is whether the trial court erred by denying probation or an alternative sentence under the Community Correc tions Act. We find no error and affirm the judgment of the trial court.

The possession of cocaine convi ction, reduced by agreement of the state from possession with the intent to sell or deli ver, resulted from an inci dent which took place on or ab out March 10, 1995. One of the conv ictions for driving

on a revoked license w

as based upon an incident occurr ing on or about June 13, 1995. The second conviction for dri ving on a revoked l icense and the reckless dr iving offense resulted from an incident occur ring September 11, 1995.
The defendant, age twenty-three at the time of th e sentence, is single but resides with Barbar a Love, with whom he has one child, Gregory Simmons, Jr., now two years of ag e. Expelled from school in the tenth grade for smoking marijuana, the defendant obtaine d his GED from the Shelby Training Center in 1990. At the time of his arrest, he managed a beau ty salon and worked in a fish market. He estimated that he w orked a total of sixty hours each week in prov iding support for his family. While acknowl edging that he had smoked mari juana on a daily basis, the defendant cl aimed that his last use of the drug was some seven months prior to his sentenci ng hearing.

The presentence report indicates a prior criminal his

tory which began3 at the time he was sevent een years of age and includes three prior instances of driving on a rev

oked license, speeding, pos session of marijuana, and the unlaw ful possession of a weapon. He has served jail terms for two of the prior instances of driving on a rev

oked license, criminal t respass, driving under the influence, a prior possession of a controlled subs tance conviction, and a felony conviction for possession of a controlled subs tance with intent to sel l or deliver. Dur ing the sentencing, the defendant conceded that he was not entitled to prob ation but sought placement in a Community Cor rections Program based i n great part on his desir e to receive treatment for substance abuse.

The trial court noted that the defendan t had been unsuccessful in completing a prior probationary term. While complimenting the defendant for undergoing a voluntary drug treatment program, the trial court expressed concern about th e defen dant's h aving sold d rugs. The decision to deny an alternat ive sentence was based primarily upon the defendant's prior criminal history and his failure to meet the conditions of pro bation on his prior three- year felony sentence. The trial court left open the q uestion of whether the defendant w ould be placed in a Community Corrections Program upon the completion of a por tion of his sentence.
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). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.4 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).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35- 102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

In misdemeanor sentencing, a se parate sentencing hearing is not mandatory but the court is required to provide the defendant with a reasonable opportunity to be heard as t o the length and manner of the sentence.Tenn. Code Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance with the principles,purposes, and goals of the Cr iminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104, -1 17, and -302; State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an5 authorized determinant sentenc e with a percentage of that s entence designated for eligibility for r

ehabilitative progr

ams. Generally, a percentage of not greater than 75% of the sentence should be fixed for a m isdemeanor offender; however, a DUI offender may be required to ser ve the full 100% of his sentence. Palmer , 902 S.W.2d at 393-94. In de termining the percentage of the sentence, the court m ust consider enhancement and mitigating factors as well as the legislative purposes and principles related to se ntencing. Id.

Upon service of that percent age, the administrativ

e agency governi ng the rehabilitative programs determines which among the lawful programs available is appropriate. The trial cour t retains the authority to place the defendant on probation either immediately or after a period of periodic or conti nuous confinement. Tenn. Code Ann. § 40-35-302(e). The l egislature has encourag ed courts to consider public or private ag encies for probation superv ision prior to directing supervision by the Department of Correction. Tenn.Code Ann. § 40-35-302(f). The go verning statute is designed to provide the trial court with continuing jurisdiction in misdemeanor cases and a wide latitude of flexibility . The misdemeanant, unlike the felon, is not entitled to the pre sumption of a minimum sentence. State v. Creasy , 885 S.W.2d 829 (Te nn. Crim. App. 1994).

The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum requirements of the Commun ity Corrections Act of 1985, however,6 does not mean that he is entitled t o be sentenced under the Act as a matt er of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The follow ing offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

The defendant is eligible for cons ideration of both probation or an alternative sentence under the Tennessee Comm unity Corrections Act. In his favor, he has demonstrated a good wor k ethic and has provided s upport for his girlfriend and his son. He has expr essed regret for his acti ons and has voluntarily sought treatment for substance abuse, completing a program on August 31, 1995.
On the other hand, the defendant conceded that he had sold cocaine while on probation for his prior felony offense. He exp lained that "my family needed a place to stay at the time . .., business was slow ..., [and] and I wasn't maki ng too much money." Traditionally , the trial courts hav e been permitted to look to the tr ue7 circumstances of the crime regardless of whether the original indictment, a f elony in this case, had been reduced to misdemeanor simp le possession. Here, there were four offenses committed in three separate incidents occurring over a period of six months. After being arrested for driving on a rev

oked license, the defendant continued to drive until caught a second time. Duri ng this time, he was on probation for a felony conviction.

The primary purpose of the Criminal Sentencing Reform Act of 1989 is to impose "a sentence justly deserved in relation t

o the seriousness of the offense." Tenn. Code Ann. § 40-35-102. Punishmen t is appropriate to restrain "defendants with a lengthy hi story of criminal conduct ." Tenn. Code Ann. § 40-35-102(3)( B). While it is entirely appropriat e to consider the least neces sary sentence and to conside r alterna tive sente nces, con fineme nt is warran ted when le ss restric tive measures have been unsuccessfull y applied to the defendant. Tenn. Code Ann. § 40-35-103(1)(C) and (6)

.

This record demonstrates that the trial considered the sent encing principles and all rel evant facts and circumstances

. Ashby , 823 S.W.2d at 169. Whether the issue is probation or placement i n Community Corrections , the trial court must be afforded some discretio n in determining the appropr iate sentence. The facts in each case control the ultimate disposition. Taylor , 744 S.W.2d at 922. That a defendant qualifies for prob ation consideration or meets the minimum criteria of the Co mmunity C orrectio ns Act doe s not mea n he is ent itled to a n alterna tive sentence. Here, the presumptio n of correctness prevails. While demonstrating that he is amenable to rehabilitati on and that he has other favorable qualities, the defendant has earned the ninety-day sentence. His prior criminal history, his failure to meet t he terms of his pro bation, the circum stances of the cr ime, and our own8 desire to insure that the tr ial courts retain a cons iderable measure of flexibili ty in the disposi tion of mi sdemeano r cases , warr ant the d enial of

relief.
Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Joe G. Riley, Judge