### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs A ugust 19, 2003

STATE OF TENNESSEE v. ELMORE L EWIS 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 Le wis Baker, Jr., pled guilty in the Blount County Circuit Cou rt to e ight offense s: counts one through four, delivery of a Sc he du le VI c on tr ol le d s ub st an ce , a Cl as s E fe lo ny; count five, possession of drug paraphernalia, a Class A misdemea nor; count six, possession of a Schedule VI c ontrolled

substanc e with

intent to sell ordeliver, a Class E felony ; and counts seven and eight, delivery of dr

ug paraphernalia, a Class E felony . The defendant was se ntenc ed as a R ange I, standard offender

to one year

on counts one through three, two years on c ount four, eleven months and twenty-nine day s on count five, two yea rs on count six, one year on count seven, and two y ears

on count eight. The plea agreement stipulated the sentences were to run concurr ently, and the trial
court determined that the sentence s sho uld be served as ninety days in jail and the re

mainder on probation. The defendant appeals, claiming that his sentences are excessive and that he should have receiv ed full pr

obation. We

affirm t he judg ments of th

e trial c ourt.

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

J OSEPH M. T IPT ON , J., delivered the opinion of the court, in which J OHN E VERE TT W IL LI AMS and A LAN E. G LENN , JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal), and Ray mond Mack

Garner , Distric t Public Defender (at trial), for the appe llant, Elmore Lewis Baker , Jr., alias Lew Baker.

Paul G. Summers , Attorne y General and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y General ; Michael L. Flynn, Di stri ct Att orney Gene ral; a nd Mi ke Gal lego s, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

This case re

lates to th e defendant’s a

rrest fo r the poss ession an d sale

of illegal drugs and drug paraphernalia. At the guilty plea hea rin g, the defendant acknowledged he had committed the-2-

offenses for which h e had been charged and a greed to stipulate to the facts, but the state did not present an account of the offenses a t 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 eleven th g rade and bega

n self-e mploy ment as a construction worker. He said that at the time of the sente ncing h earing, he had be en worki ng as a cook at a res taurant

for a couple of mo nths. He s aid he te sted neg ati ve for d rugs in a test administered by his probation office r. Although not listed on his presentence repo rt, he sa id he served seven days in jail for

a marijuan a convic tion in Pana ma Beach, Florida, in 1998. He said he had been arrested for disorderly conduct in 2 000 and burglary of a vehicle in 1995. He said, ho we ve r, th at bo th ca se s w er e d is mi ss ed an d h e h ad no th in g t o d o w it h t he bu rg la ry.

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 stay ed at the Pine Trace I nn where he also worked
at night to pay

for his ro om. He said that one night while he was working, he heard his boss talking about drugs and told her

he knew s omeone in

Nashville

from whom

she could

get a “better deal.” He said he agreed

to go to N ashville t

o get the drugs. He said he did this about four times in a tenweek span, bringing about one-half pound of m arijuana to B lount County each time. He said he brought some of the marijuana to Blount County in or der 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 sai d that since his ar rest, he had not u sed or sold drugs
to anyone. He

said he made a te rrible decision and that he would never do it aga in. He said he wantedto apologize to the City of Mary ville for any ha

rm he may have

caused. He said that after the case wa s over, he

wanted to

get a jo b “with Me

tro in Nashville” or start

his constr uction bus iness again. He said that if he had to decide, he would rather go to jail than have the char ges pe rmanent ly on his record.

On cross-e

xamination, the defe

ndant sai d he did

not know how the marijuan a came t o be in his backpack when the police found it in 1998. He said he wa s part of a group of friends on a road trip and that the marijuana may or may not have be

longed to him. He sa

id that at the time

of his
arrest in 2000 on the subject charges, he was a lso 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 Fe

bruary 23, Ma

rch 9, March 24, and March 29, 2000. He said he ha

d sold marijuana to persons other than the informant and the undercover agent bef ore his arrest in 2000.

The presentence report shows that the defendant is twenty -five ye ars old and was raised by his late fat

her. The report r efle cts that his mothe r 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 ha d never been addictedto drugs and was not using drug s currently. H is drug screen conducted at that time was negative. When arrested in 2000, he told the arresting office r he had mad e a bad decision by bringing drugs to Blount County from Nashville.-3-

The trial court

determined that the defendant’s effective sentence as a Rang e I offender was to be tw o ye ars with ninety day s of the sentence to be spent in jail. In de nying full proba

tion and imposing two-year

sentences on count f

our, deli very

of a Sche dule VI controlled substance; count six, possession of a Schedule VI controlled substanc e with intent to sell or deliver; and coun t eight, deliv ery of drug p araphe rnali a, the trial court state d the f ollo wing:

I found the en hanci ng factor of the existence of cr

iminal conduct, convictions and behavior, in excess of that necessary

to establish the appropr iaterange. Factually , that would be the offens es from February and earlier

in March and also other offenses for which you weren’t apprehended, and

a lso the earlier Class A misdemeanor convicti on in Nash

villefor possession of mariju ana, whi ch I find to be proved as a fact by

your own testimony

-- irrespective of what

the presentence report say s.

Now, the quest

ion as to the manner

of servi ce. I

thin k n o

co nfine ment

would dep

reciate the serio

usness of these of fenses, particu larly

given the number of offenses and the time span involved. And I thin

k yo ur likelih ood of be

ing reh abilitate d by

simp ly b eing convictedand placed

on probation is poor. And the reason I sa y that is because that already

happened once two years before these offense s happened, and that didn’t

have any impact on wha

t you did or the way you behave d.

Were y o u to serve

30 perce nt of thes e sentences, tha

t would be seven mon

ths in jail. Considering y our beha vior afte r the ar rest, the fact that you ple d guilty, the fact that you ha

ve to an extent been forthcoming in y our testimony today

. . . .
So, I’ m going

to reduce you r jailtime from

seven mon

ths to 90 day s.
Appellat e review of the manner in which a sentence is to be servedis de novo on the record with a presumption that the trial court’s determinations are correct. Tenn. Code An n. § 40-35-401(d). However, this presumption of correctness is conditioned upon the aff irmative showing that the trial court considered the relevant facts, c ircumsta

nces, and sentenc ing principles. State v. Ashb y , 823 S.W.2d 1 66, 169 (T enn. 1991 ). If the trial court fa ils to compl

y w ith th e statutory directiv es, ther

e is no pre sumption of

correc tness and our r

eview is de novo

. State v. Poole
, 945 S.W.2d 93, 96 (Tenn. 1997). This means that if the trial court followed thestatutory sentencing procedure, made findings of fact that are ade q uately sup ported 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 pr eferred. 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 en hance ment fact or (1)

that the “offense was an act o f terrorism” but chan ged the existing enha nceme nt factors only by increasi ng thei r designat ing number

by one.

-4- A defendant seekingfull 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 defe ndant a

nd the public. State v. Baker , 966 S.W.2d 429, 434 ( Ten n. Crim. App. 1997). “Among the factors applica ble to probation consideration are the circumstances of the offense; the defe ndant’s criminal record, social his tory , and pre sent cond ition; the d

eterre nt effe ct upon the

defenda nt; and the

best interest s 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 reha bilitation potential and the r

isk of re peating criminal conduct a

re fundamental in determining whether probation is appropriate. State v. Keen , 996 S.W.2d 842, 844 (Tenn. Cr im. App. 19 99); see Tenn. Code Ann. § 40-35-103(5).

In conduct in g a de novo review, we must consider (1) the evidence , if any, re ceived at the sentencing hearing, (2) the present ence re port, (3) the princ iples of se ntencing and arg uments as to sentencing alternatives, (4) the nature and char acteristics of the criminal conduct, (5) any mitigating

or statutory enhanc ement factors, (6) any statement that the de fendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-1 02, -103, -21 0; see Ashby , 823 S.W.2d at 168.

Ini ti al ly, the defendant contends that the trial court failed to address mitigating factor (1), that the defendant’s conduct neither caused nor threatened serious bod ily injury
, and factor (13), the catcha ll provision , and that , theref ore, this court should revie w his sente

nces de nov o wit hout 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 re garding mitigating fa ctors 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 sentenc ing decision, identify the mitigating and enhancement

factor s found, st

ate the s pecific

facts supporting each enhancement factor found, and articula te how th e mit igati ng and enhanc ement fa ctors ha ve been evaluat ed and ba

lanced i n determining the sentence.’” Poole
, 945 S.W.2d at 96 ( quot ing State v. Jones , 883 S.W.2d 597, 601 (Tenn. 1994)). See also

Tenn. Code Ann. § 40-35-210(f). Although the tria l court reduced histime of confinement through mitigation, such as his conduct after his arrest, it did no t consid er on the record an y m itigating fa ctor for purposes of determining the leng th 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 beha vi or, enha

ncement factor (1), as t he basis f or its decision and imposed maximum sentences of two year s for the d efenda nt’s convictions on

counts four, six, and eight. See Ten n. Code Ann. § 40-35-114(1) (Supp. 2001) (amended 2002). 1 This analy sis by the trial court is insufficie nt for a pres umpt ion of correctness upon appellate review because mitigating factors did apply and the trial court erred in not apply ing them.-5-

The de fendant cl aims that the trial court’s failure to apply the relevant mitigating factors resulted in the trial court

improperly imposing maximum two-y ear 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 o ne enhancement factor and that the trial court should have sentenced him to one y ear for thes e convic tions as it d id for th e r em ai ni ng fe lo ni es . S pe ci fi ca ll y, he claimsthat the tr ial cour t should ha

ve mitiga ted these
sentences on the bas is that his c onduct ne ither ca used nor t

hreate ned seri ous bodil y injury

. See Tenn. Code Ann. § 40-35-113(1). Additionally, he argues the following mitigating factor s should weigh heavily under f

actor (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 ste ady employment and committed no criminal
acts in the three years be

tween the subject o ffense s and the s entenci ng hea ring; a nd 4) his r

emorse for his conduct. SeeTenn. Cod e Ann. § 40 -35-113( 13). He a rgues t hat th ese mitig ati ng factors
outwe igh the one enhanc ement fa ctor. The state doe s not addr

ess the is sue of

length of sen tenci ng. However, we hold that the trial court’s sentence s are appropriate.

We believe

that the a

bsence o f actua

l or threa tened se rious bodi ly in

jury is an appl

icable 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 pa rapherna lia convi c tions did not threaten serious bodily injury , butwere entitled to little weight under mitigating fa ctor (1)). With respe ct to factor (13), we conclude

that the defendant’s steady work r ecord, family

situation, and expression of remor se should a

lso be considered for

mitigation of his sentences, although we believe they , as well as factor (1), are ent

itled to very little weig

ht. See Stat e v. Leggs , 955 S.W.2d 845, 850 (Tenn. Crim. App. 1997) (concluding that remorse is an appr

opriate mitigati ng fac tor under

(13)); State v. McKnight
, 900 S.W.2d 36, 55 (Tenn. Crim. App. 1994) (indicating that family contribu ti ons and work ethic can be mit iga ting fa ctors); 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 the mitigating fac tors does not alter the defendant’s
sentenc es. The tria

l court c orrect

ly a pplied g reat weight to th e d ef

en da nt ’s pa st cr im in al hi st or y, especia lly the defendant’s 1998 conviction for posse ssion of ma

rijuana , two years before his arrest for the offe nses i n question, because it demonstrates the lack of impact that the conviction and
sentence had on the defend ant. This outweighs the mitigating factors and w arrants sentencing the de fendant to the maximu

m punishme

nt of two y

ears fo r delive ry of a Sche dule VI

contr olle d substance, possession of a Schedule VI controlled substanc e with intent to sell or deliver, and delivery of dr

ug paraphernalia. See

Tenn. Code Ann. § 40-35-112(a)(5) (providing that t he range of punishment for

a Range I off ender c onvicted

of a ClassE felony

is two years) . We believe that although the trial court fa iled to disc

uss applic able

mitigating factors, the record supports the tria l court’s maximum sent

ences f or the thr ee convictions.-6-

Fi na ll y, the defendant claims he s hould ha ve been grante d full pro

bation ra ther tha n split confine ment with n

inety days in jail. The trial

court determined that the defendant’s likelihood of rehabilitation without confinement was poor and that no confinement would deprecia te the seriousness of the offenses. The defendant claims that his likelihood of reha bilitation is “extreme

ly 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 af ter h is 1998 c onviction for possession of marijuana, indicating that his prior sentence without confinement had no impact on him. Given the evidence presented at the sentencing hear ing and in the presentence repor t, includi ng pri or dru grelated criminal behavior, we conclude that the defenda nt’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 judg ments of the trial
court.

___________________________________ JOSEPH M. TIPTON, JUDGE