# FILED
March 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION
DEMETRIUS ROBERTSON, * C.C.A. # 02C01-9706-CR-00220 Appellant, * SHELBY COU NTY VS. * Hon. Joseph Bro wn, Jr., Judge STATE OF TENNESSEE, * (Possession With Intent to Sell) Appellee. *

For Appellant: For Appellee: Russell J. Johnson John Knox Walkup Attorney Attorney General & Repor ter 5100 Poplar Avenue, 27th Floor Memphis, TN 38137 Marvin E. Clements, J r. Assistant Attorney Gener al Criminal Justice Div

ision Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Kevin Rardin Asst. District Attor

ney General Criminal Justice Co mplex 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE1 The Notic e of A ppe al wa s filed appr oxim ately e ighty d ays af ter the entry o f judg me nt. W ithin sixty days of t he judgment, the defendant had fi led a petition to rehear. The st ate acknowledged on the appeal t hat such petition may be t reated as a Moti on to Reduce Sentence under Rule 35(b), Tenn. R. Crim . P. See State v. Irick , 861 S.W.2d 375 (Tenn. Crim. App. 1993). In the appeal of an order pursua nt to Rule 3 5, the sco pe of rev iew is limited to abuse of discre tion. Id. Because the defendant is not entitle d to re lief un der th e m ore f avor able s tand ard o f a dire ct ap pea l, as ind icate d by th is opinion, sh e would n ot be entitled to relief unde r Rule 35

. 2 OPINION The defendant, Demetrius Robertson, ente red a plea of guilt to possession of a controlled subs tance with intent to sel l. The trial court imposed a sentence of split confinement: six months in jail followed by a three-year probationary period.

In this appeal, 1 the defendant argues that she should have been granted an alternative sentence. We d isagree. The judgment of the trial court is, therefore, affirmed.

A search warrant for the defendant's apartment yielded 11.32 g rams of cocaine , scales, drug parap hernalia , and a nin e millime ter hand gun with nin e live rounds. The defendant, who had an eig ht-year-old child l iving in her resi dence, explained that three men w ho resided with her for the purpose of protecting her and her son from break-ins, w ere responsible for the presen ce of the illegal drugs and other items seized by the police. The defendant compla ins that the trial court should have granted immediate probation or placed her in a Community Corrections program.
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 showing3 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.
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).

Alternative sentencing

issues must be determined by the facts and circumstances of the indiv idual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn.4 1986). "[E]ach case must be bottomed upo n its own facts." State v. Taylor , 744 S.W.2d 919, 922 (T enn. Crim. App. 1987).

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 Cor rections sentence provi des 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 the defendant meets the minimum requirements of the Community Corrections Act of 1985, however, does not mean that she is entitled to be sentenced und er the Act as a matter of law or right

. Taylor , 744 S.W.2d at 922. T he following 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 c rimes 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)

.5 The defendant received a favorable presente nce report. She is employed and has taken steps to i mprove the quality o f her life. Yet the defendant has a prior criminal hi story as a juvenil e. As an adult, she had been gr anted probation on a prior felony offense. There was a relativ ely large amount of cocaine found in her residence, thus the nature of this offense was serious.Finally, the trial court determined that the defendan t had been untruthful in a prior court appearance about the degree of relationship with James "Black" W illiams, who was apparently involved in illegal drug possession and who was one of the three i ndividuals she had allowed to reside in he r home just prior to this offense.

Under these circumstances, the trial judge is enti tled to the presumption of correctness in the imposition of sentence. We fully concur with his assessment.
Accordingly, the j udgment is affirmed.

_________________________________ Gary R. Wad e, Judge CONCUR:

_____________________________ Joe B. Jones, Pre siding Judge

_____________________________ Jerry L. Smith, Jud ge