IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 19, 2003

STATE OF TENNESSEE v. ELMORE LEWIS BAKER, JR. 

ALIAS LEW BAKER

 Appeal from the Circuit Court for Blount County

Nos. C-12909, C-12910, C-12911, C-12912, C-12913, C-12914, C-12915, C-12916

D. Kelly Thomas, Jr., Judge

No. E2003-00073-CCA-R3-CD 

September 18, 2003

The defendant, Elmore Lewis Baker, Jr., pled guilty in the Blount County Circuit Court to eight

offenses: counts one through four, delivery of a Schedule VI controlled substance, a Class E felony;

 count five, possession of drug paraphernalia, a Class A misdemeanor; count six, possession of a

Schedule VI controlled substance with intent to sell or deliver, a Class E felony; and counts seven

and eight, delivery of drug paraphernalia, a Class E felony. The defendant was sentenced as a Range

I, standard offender to one year on counts one through three, two years on count four, eleven months

and twenty-nine days on count five, two years on count six, one year on count seven, and two years

on count eight. The plea agreement stipulated the sentences were to run concurrently, and the trial

court determined that the sentences should be served as ninety days in jail and the remainder on

probation. The defendant appeals, claiming that his sentences are excessive and that he should have

received full probation. We affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ALAN E. GLENN, JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal), and Raymond Mack Garner, District Public

Defender (at trial), for the appellant, Elmore Lewis Baker, Jr., alias Lew Baker.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;

Michael L. Flynn, District Attorney General; and Mike Gallegos, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

This case relates to the defendant’s arrest for the possession and sale of illegal drugs and drug

paraphernalia. At the guilty plea hearing, the defendant acknowledged he had committed the
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offenses for which he had been charged and agreed to stipulate to the facts, but the state did not

present an account of the offenses at the hearing. 

At the sentencing hearing, the defendant asked the trial court to impose only probation. The

defendant said he dropped out of school after the eleventh grade and began self-employment as a

construction worker. He said that at the time of the sentencing hearing, he had been working as a

cook at a restaurant for a couple of months. He said he tested negative for drugs in a test

administered by his probation officer. Although not listed on his presentence report, he said he

served seven days in jail for a marijuana conviction in Panama Beach, Florida, in 1998. He said he

had been arrested for disorderly conduct in 2000 and burglary of a vehicle in 1995. He said,

however, that both cases were dismissed and he had nothing to do with the burglary.

The defendant said he moved to Knoxville three and one-half years ago to work on a

construction job at Ruby Tuesday’s. He said he stayed at the Pine Trace Inn where he also worked

at night to pay for his room. He said that one night while he was working, he heard his boss talking

about drugs and told her he knew someone in Nashville from whom she could get a “better deal.”

He said he agreed to go to Nashville to get the drugs. He said he did this about four times in a tenweek span, bringing about one-half pound of marijuana to Blount County each time. He said he

brought some of the marijuana to Blount County in order to sell it. He said he never smoked any of

the marijuana. He said he made approximately one thousand dollars from selling the drugs and that

he had never sold drugs before this time. He said that since his arrest, he had not used or sold drugs

to anyone. He said he made a terrible decision and that he would never do it again. He said he

wanted to apologize to the City of Maryville for any harm he may have caused. He said that after

the case was over, he wanted to get a job “with Metro in Nashville” or start his construction business

again. He said that if he had to decide, he would rather go to jail than have the charges permanently

on his record. 

On cross-examination, the defendant said he did not know how the marijuana came to be in

his backpack when the police found it in 1998. He said he was part of a group of friends on a road

trip and that the marijuana may or may not have belonged to him. He said that at the time of his

arrest in 2000 on the subject charges, he was also beginning to sell drug paraphernalia. He said he

was selling “bongs” along with the marijuana he brought from Nashville. He said he sold marijuana

to an informant and an undercover agent on February 23, March 9, March 24, and March 29, 2000.

He said he had sold marijuana to persons other than the informant and the undercover agent before

his arrest in 2000.

The presentence report shows that the defendant is twenty-five years old and was raised by

his late father. The report reflects that his mother abandoned him when he was four. He said he

began drinking at age nineteen and consumed about a six-pack per week. He said he had never been

addicted to drugs and was not using drugs currently. His drug screen conducted at that time was

negative. When arrested in 2000, he told the arresting officer he had made a bad decision by

bringing drugs to Blount County from Nashville. 
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The trial court determined that the defendant’s effective sentence as a Range I offender was

to be two years with ninety days of the sentence to be spent in jail. In denying full probation and

imposing two-year sentences on count four, delivery of a Schedule VI controlled substance; count

six, possession of a Schedule VI controlled substance with intent to sell or deliver; and count eight,

delivery of drug paraphernalia, the trial court stated the following:

I found the enhancing factor of the existence of criminal conduct,

convictions and behavior, in excess of that necessary to establish the

appropriate range. Factually, that would be the offenses from

February and earlier in March and also other offenses for which you

weren’t apprehended, and also the earlier Class A misdemeanor

conviction in Nashville for possession of marijuana, which I find to

be proved as a fact by your own testimony -- irrespective of what the

presentence report says. 

Now, the question as to the manner of service. I think no

confinement would depreciate the seriousness of these offenses,

particularly given the number of offenses and the time span involved.

And I think your likelihood of being rehabilitated by simply being

convicted and placed on probation is poor. And the reason I say that

is because that already happened once two years before these offenses

happened, and that didn’t have any impact on what you did or the way

you behaved. 

Were you to serve 30 percent of these sentences, that would

be seven months in jail. Considering your behavior after the arrest,

the fact that you pled guilty, the fact that you have to an extent been

forthcoming in your testimony today . . . . 

So, I’m going to reduce your jail time from seven months to

90 days.

 

Appellate review of the manner in which a sentence is to be served is de novo on the record

with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. §

40-35-401(d). However, this presumption of correctness is conditioned upon the affirmative

showing that the trial court considered the relevant facts, circumstances, and sentencing principles.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the

statutory directives, there is no presumption of correctness and our review is de novo. State v. Poole,

945 S.W.2d 93, 96 (Tenn. 1997). This means that if the trial court followed the statutory sentencing

procedure, made findings of fact that are adequately supported in the record, and gave due

consideration and proper weight to the factors and principles that are relevant to sentencing under

the 1989 Sentencing Act, we may not disturb the sentence even if a different result were preferred.

State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). 
1

The legislature’s 2002 amendment to Tenn. Code Ann. §40-35-114 added as the new enhancement factor (1)

that the “offense was an act of terrorism” but changed the existing enhancement factors only by increasing their

designating number by one.

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A defendant seeking full probation bears the burden on appeal of showing that the sentence

imposed is improper and that full probation will be in the best interest of the defendant and the

public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). “Among the factors

applicable to probation consideration are the circumstances of the offense; the defendant’s criminal

record, social history, and present condition; the deterrent effect upon the defendant; and the best

interests of the defendant and the public.” State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.

1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). Also, a defendant’s rehabilitation

potential and the risk of repeating criminal conduct are fundamental in determining whether

probation is appropriate. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); see Tenn.

Code Ann. § 40-35-103(5).

In conducting a de novo review, we must consider (1) the evidence, if any, received at the

sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to

sentencing alternatives, (4) the nature and characteristics of the criminal conduct, (5) any mitigating

or statutory enhancement factors, (6) any statement that the defendant made on his own behalf, and

(7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see

Ashby, 823 S.W.2d at 168.

Initially, the defendant contends that the trial court failed to address mitigating factor (1), that

the defendant’s conduct neither caused nor threatened serious bodily injury, and factor (13), the

catchall provision, and that, therefore, this court should review his sentences de novo without a

presumption of correctness. See Tenn. Code Ann. § 40-35-113(1), (13). We agree with the

defendant that the trial court failed to state on the record its findings regarding mitigating factors that

applied in this case. For a presumption of correctness to attach, “the trial court ‘must place on the

record its reasons for arriving at the final sentencing decision, identify the mitigating and

enhancement factors found, state the specific facts supporting each enhancement factor found, and

articulate how the mitigating and enhancement factors have been evaluated and balanced in

determining the sentence.’” Poole, 945 S.W.2d at 96 (quoting State v. Jones, 883 S.W.2d 597, 601

(Tenn. 1994)). See also Tenn. Code Ann. § 40-35-210(f). Although the trial court reduced his time

of confinement through mitigation, such as his conduct after his arrest, it did not consider on the

record any mitigating factor for purposes of determining the length of the sentences, including

mitigating factors (1) and (13). See Tenn. Code Ann. § 40-35-113(1), (13). The trial court identified

the defendant’s prior criminal history and behavior, enhancement factor (1), as the basis for its

decision and imposed maximum sentences of two years for the defendant’s convictions on counts

four, six, and eight. See Tenn. Code Ann. § 40-35-114(1) (Supp. 2001) (amended 2002).1

 This

analysis by the trial court is insufficient for a presumption of correctness upon appellate review

because mitigating factors did apply and the trial court erred in not applying them. 
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The defendant claims that the trial court’s failure to apply the relevant mitigating factors

resulted in the trial court improperly imposing maximum two-year sentences on the defendant for

his convictions on count four, delivery of a Schedule VI controlled substance; count six, possession

of a Schedule VI controlled substance with intent to sell or deliver; and count eight, delivery of drug

paraphernalia. The defendant claims that the mitigating factors outweighed the one enhancement

factor and that the trial court should have sentenced him to one year for these convictions as it did

for the remaining felonies. Specifically, he claims that the trial court should have mitigated these

sentences on the basis that his conduct neither caused nor threatened serious bodily injury. See

Tenn. Code Ann. § 40-35-113(1). Additionally, he argues the following mitigating factors should

weigh heavily under factor (13), the catchall provision: 1) that his mother deserted him when he was

four and he was raised by his now deceased father; 2) that he did not abuse drugs or alcohol and has

a minimal criminal history; 3) that he had maintained steady employment and committed no criminal

acts in the three years between the subject offenses and the sentencing hearing; and 4) his remorse

for his conduct. See Tenn. Code Ann. § 40-35-113(13). He argues that these mitigating factors

outweigh the one enhancement factor. The state does not address the issue of length of sentencing.

However, we hold that the trial court’s sentences are appropriate. 

We believe that the absence of actual or threatened serious bodily injury is an applicable

mitigating factor in this case. See State v. Charles Eugene Jones, No. E2001-01639-CCA-R3-CD,

Sullivan County, slip op. at 6-7 (Tenn. Crim. App. Mar. 12, 2003) (approving of trial court’s finding

that the defendant’s intent to sell marijuana and drug paraphernalia convictions did not threaten

serious bodily injury, but were entitled to little weight under mitigating factor (1)). With respect to

factor (13), we conclude that the defendant’s steady work record, family situation, and expression

of remorse should also be considered for mitigation of his sentences, although we believe they, as

well as factor (1), are entitled to very little weight. See State v. Leggs, 955 S.W.2d 845, 850 (Tenn.

Crim. App. 1997) (concluding that remorse is an appropriate mitigating factor under (13)); State v.

McKnight, 900 S.W.2d 36, 55 (Tenn. Crim. App. 1994) (indicating that family contributions and

work ethic can be mitigating factors); State v. Kelley, 34 S.W.3d 471, 482-83 (Tenn. Crim. App.

2000) (holding that work ethic is a mitigating factor). 

However, we conclude that application of themitigating factors does not alter the defendant’s

sentences. The trial court correctly applied great weight to the defendant’s past criminal history,

especially the defendant’s 1998 conviction for possession of marijuana, two years before his arrest

for the offenses in question, because it demonstrates the lack of impact that the conviction and

sentence had on the defendant. This outweighs the mitigating factors and warrants sentencing the

defendant to the maximum punishment of two years for delivery of a Schedule VI controlled

substance, possession of a Schedule VI controlled substance with intent to sell or deliver, and

delivery of drug paraphernalia. See Tenn. Code Ann. § 40-35-112(a)(5) (providing that the range

of punishment for a Range I offender convicted of a Class E felony is two years). We believe that

although the trial court failed to discuss applicable mitigating factors, the record supports the trial

court’s maximum sentences for the three convictions.
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Finally, the defendant claims he should have been granted full probation rather than split

confinement with ninety days in jail. The trial court determined that the defendant’s likelihood of

rehabilitation without confinement was poor and that no confinement would depreciate the

seriousness of the offenses. The defendant claims that his likelihood of rehabilitation is “extremely

positive” because he has maintained steady work and is not addicted to drugs or alcohol. The state

responds that he committed the present drug offenses after his 1998 conviction for possession of

marijuana, indicating that his prior sentence without confinement had no impact on him. Given the

evidence presented at the sentencing hearing and in the presentence report, including prior drugrelated criminal behavior, we conclude that the defendant’s likelihood of rehabilitation without any

confinement is relatively poor and that he is not entitled to full probation.

Based upon the foregoing and the record as a whole, we affirm the judgments of the trial

court. 

___________________________________

JOSEPH M. TIPTON, JUDGE