# FILED
March 31, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9704-CR-00158

Appellee, * SHELBY COUNTY VS. * Hon. Bernie W einman, Judge THOMAS L. MATTHEWS, * (Possession of a Controlled Substance With Intent to Sell and Deliver) Appellant. *

For Appellant: For Appellee: Marvin Ballin John Knox Walkup 200 Jefferson Avenue, Suite 1250 Attorney General & Repor ter Memphis, TN 38103 Georgia Blythe Felner Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Paul Goodman Assistant District A

ttorney General 201 Poplar Street, Suite 301 Memphis, TN 38103

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Thomas L. Matthews, pled g uilty to one count of unlawful possession of a contr olled substance with i ntent to sell. Tenn. Code Ann. § 39-17-417. The plea agreement i ncluded a Range II sentence of si x years with the trial court to determi ne the manner of service. The tr ial court ordered serv

ice of the sentence in the county workhouse . In this appeal of right , the defendant claims the court erred by deny ing Community Correc

tions.
We affirm the judgment of the trial court.
On March 15, 1996, a search w arrant was issued for a p roperty located at 1190 Greenwood in Shelby County. The defendant, w ho was present at the time of the search, was found i n possession of six and one-h alf grams of cocaine.
At the sentencing hearing , the defendant, fifty-eight ye ars old, testified that he became "heavily in volved" in the drug business about eight to ten y ears ago. He admitted having pri or convictions for drug offenses and for violating his terms of parole. The presentence report confirms at least four prior dr ug-related convicti ons and two parole violations, the most recent in 1994, only two years before this offense.
The defendant completed eighth grade. He worked for a barber for over fifteen years and, for sev eral years thereafter, w as self-employed in the real estate business. At the time of thi s drug offense, he was an assi stant in a paint business.3 The defendant testified tha t he suffers from sickle cell disease, which causes aching in the bones, joints, and muscles. He has high blood pressure and an ulcer. The defendant asked for an alter native sentence because of his "s pecial needs," insisting he coul d get his life on the rig ht track. He explained that a series of bad events had led him into tr afficking illegal drugs.
When a challenge is made to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a "de nov o review ... with a presumption that the determinations mad e by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). The Sentenci ng Commission 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, -210.
Especially mitigat

ed or standard offenders convict ed of Class C, D, or E feloni es are, of course, p resumed to be favo rable can didates "for alt ernative sentencing options in the abs ence of evidence to the contrar y." Tenn. Code 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 sente nce imposed is eight years

or less. Tenn. Code Ann. § 40- 35-303(b).4 Among the factors applicable to probation consideration are the circumstances of the offense, the defendant's c riminal record, social history, and present condition, and the deter rent effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285 (Tenn. 1978). The purpose of the Community Corrections Act of 1985 was to provide an alternative means of punishment for "selected, nonviol ent felony offenders in front-end community based alternatives to incar

ceration." Tenn. Code Ann. § 40-36- 103. The Community Corrections sentence prov ides a desired degree of flex ibility that may be b

oth beneficial to the defendant yet ser ve legitimate societa l 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, how ever, does not mean that he is entitled to be sentenc ed under the Act as a matter of law or right. State v. Taylor , 744 S.W.2d 919 (Te nn. Crim. App. 1987). The 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 In State v. Ashby , our supreme court encourag ed the grant of considerable discretionar y authority to our t rial courts in matters such as these. 823 S.W.2d 166, 171 (Tenn. 1991). See State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be bottomed upo n its own facts." Taylor , 744 S.W.2d at 922. "It is not the policy or purpose of this court to pl ace trial judges in a j udicial straight-jacket in this or any other area, an d we are always reluctant to interfere w ith their traditional discretionary powers. " Ashby , 823 S.W.2d at 171.

In denying Community Corrections, the trial court observed, "I don't believe that the legis lature intended for someone with your record to ... be o ut on the streets. " We a gree. Init ially, the re is no pre sumptio n in favor of alter native sentencing for a Range II offender. Tenn. Code Ann. § 40-35-102(6). That the defendant has continued to commit drug offenses "indicates a lack of potential for ... rehabilitation." Tenn. Code Ann. § 40-35-103(5). T hat the defendant had at least two violations of the c

onditions of parole indicates "[ m]easures less restric tive than confinement have ... unsuccessfull y" been applied to him. Tenn. Code Ann. § 40- 35-103(1)(C).

The defendant contends the trial court did not give due conside ration to his ill health. That a per son is in "ill health" and r equires "constant medical attention" may be a factor in suppo rt of the grant of an alternativ e sentence. Ashby , 823 S.W.2d at 170. The defendant did not, however, offer any proof showing his condition could not be treated i n the prison facility or that it required "consta nt medical attention."

Accordingly, the j udgment of the trial court is affirmed.6 __________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Joe B. Jones, Pre siding Judge

______________________________ Jerry L. Smith, Judge