# FILED
May 18, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE APRIL 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9809-CC-00382 Appellee, ) ) COFFEE COUNTY VS. ) ) HON. GERALD

L. EWELL, SR., MARSHA A

RNOLD, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
ROBERT S. PETERS PAUL G. SUMMERS 100 First Ave., Southwest Attorney General & Repor ter Winchester, TN 37398 CLI NTO N J. MOR GAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 CHARLES M. LAYNE District Attorney General KENNETH SHELTON, JR. Asst. District Attor

ney General P.O. Box 147 Manchester, TN 37349

OPINION FILED:____________________

AFFIRMED AND REMA NDED FOR CORRECTION OF THE RECORD JOHN H. PEAY, Judge1 The defe nda nt wa s also char ged with p oss ess ing dr ug pa raph erna lia, bu t the d ispo sition of this count is uncl ear. The document refl ecting t he defendant’ s guilt y plea i ndicates t hat on May 19, 1998, the defendant pled guilty only to possession of marijuana with intent to sell or deliver, and the record contains an or

der dated May 26, 1998, dismissi ng the possession of drug parapher nalia count because of the defendant

’s guilty pl ea to the dr ug possession charge. The presentence repor t, however,states that the de fendan t pled guilty to both counts , and the trial c ourt sen tenced the defe ndant on both cou nts. The record does not expl ain thi s discrepancy , but because t he defendant does not question her convicti on or sentence for possession of dr ug paraphernal ia, nei ther shall we. 2 

### O P I N I O N
The defendant pled guilty to poss ession ofmarijuana withintent to sell or deliver and was sen tenced to one month in county jail and one year, eleven months in the community corre ct ions program. She now appeals, arguing that the trial court impos ed an ex

ce ss iv e s en te nce a nd er re d i n d en yi nga f ul l a lter na ti ve se nt en ce . We affirm the trial court’s sente ncing order on this count

.

The defen dant was charged wi th possession of over 14.175 g rams of marijuan a with in tent to sell or deliv er, a Class E felony. See T.C.A. § 39-17- 417(g)(1)(Supp. 1998). 1 After pleanegotiations, the State recommended a sentence of deferred judgment for one year and 100hours of public service work in exchange for a guilty plea. The trial co urt declined to accept this plea agr eem ent. After further nego tiations, the State recommended a one year s entence of probation, 200 hours of public servi ce wor

k, and th e mandato ry mini mum fine i n excha nge fo r a guilty p lea. Again, the trial court reject ed the plea agreement. The d efendant then pled guilty and submitted the case to the trial co urt for senten cing.

At the sentencing hearing, t h e defendant maintained that the marijuana found at her house was for her personal use. She also testified that she bought a rather large quantity of marijuana so s he could share some with her frie nds because it was cheaper to buy in bulk. To that end, she testified that she used the bag gies and scales3

that were found in her house in order to distribute the proper amount of marijuana to her friends and ensure she was not “being cheated.” Moreover, she testified that she bought the drugs from a college student named Edward Johnson, but she could not remember his phone number. In her statement containedin the presentence report, she stated, “I would consider helping get the person I bought the marijuana from, [i]f the D.A.’s office will help me.”

At the conclusion of the evidenc e, the tr ial court told the defendant, “It’s apparentto the Court that youare a drug seller and di stributor. Although y ou claim that the marijuana was for your own personal use, the presence of scales and plast ic bags convinces

the Court that you lie i n this regard.” The tr ial court also found that the defendant did not cooperate with the presentence officer

in making a forthright stat ement
or truthfully disclosin g the name of the person from whom she bought the marijuana. The trial court found no enhancing factors, b ut stated that this type of

offense was “rampant” in Coffee County and needed to be discour aged and that

the d efendant has a “ < sorry’ social history.” Accordi ngly, the trial cou rt ordered thedefendant to pay the minimum fine of two thousand dollars ( $2000) and gave her a sentence of two years, one month to be served in county jail and the balance served on community corrections.

The defendant challenges the length of her s ent ence, arguing that she should have received the mini mum sentence. She also argues that she should not spend any time in jail and instead should be placed on pr obation or at least solely on community corrections. In this regard, she co ntends that she is entitled to a p resumption of alternat ive sentencing and that the r ec ord contains insufficient evi dence to rebut that presumption.4 When a defendant complains of his or her sentence, we must conduc t a de novo review w

ith a presumption of correctness . T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appealing party. T.C.A . § 40-35-401(d) Sentencing Commission Comments. This presumption, however, “is cond itioned upon the affirmative showing i n the record that the trial court considered the sentencing principles

and all re leva n t facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the length of a s entence, T.C.A. § 40-35-210(c) provide s that forClass E felonies, such as the one in the instant case, the mi nimum sentence withi n the range is the presumptiv e sentence. If

there are enhancing and miti gating factors, the court must start at the minimum sentence in the range and enh anc e the sentence as appropriatefor the enhancement factors and then reduce the sentence within the range
as appropriate for the mitigating factors. If there are no mitigating factors, the court may set the sentence above the minimum in that rang e but still within the r ange. The weight to be given each factor is left to the discretion of the tri al judg e. Sta te v. Shelton , 854 S.W.2d 116, 123 (T enn. Crim. App. 1992).

Here, because the defendant was s ent enced to a Class E felony as a Range I standard offender, her possible s entenc e ranged f rom one to two years. Although the trial court foun d no statutory enhancing factors, the presentence report reflects that the d efendant admits to “casual use” of mari juana since 1970. The defendant also testified that at least s ome of the marijuana found i n her house was for her own use. Because the defendant admits to pri or crimin al activity, her sentence should be enhanced under T.C.A. § 40-35-114(1). We agree with the trial cour t that one mitigating factor is applicable, that i s, that the defendant’s behavior neither caused nor5

threatened serious b odily inju ry. See T.C.A. § 40-35-113(1). Even so, it is obvi ous that the trial court gave this m itigating factor little weigh t, as do we. Thus, balancing the enhancing factor

against the mitigating

factor, asentence of two years seems appropriate under the circumstances of this case.

In d etermining whether the defendant should be in carcerated, the guidelin es enumerated in T.C.A. § 40-35-103 should be considered. These guidelines include the need “to protect society b y restraining a defendant who has a long history of criminal conduct,” the need “to avoid depreciating the seriousness of the offense,” the determination that “confinement is particul arly suite d to provid e an eff ective deterrence to others likely to commit similar offenses,” or the dete rmination t hat “measures less restricti ve than confinement have frequently or recently been applied unsuccessfully to the defendant.” T.C.A. § 40-35-103(1).

Here, the trial court judge specifically stated, “I fi nd that a sentence to confinement, partial confinement, is necessary to avoid depreciating the seriousness of this offense . . . .” The defendant correctly observes tha

t the State f ailed to prove the need for dete rrence, b ut she fa ils to reco gnize that the trial court judge specifically found that she was untruthful when sh e insisted that the drug s found in her home were for her personal use and that she lied about th e identity of her drug supplier. Because untruthfulness reflects upon a defendant’s potential for rehabi litation and is itself a valid
reason for denyin g probation, the trial court was justified in imposing short term i ncarceration in combination with a co mmunity corrections sent ence. See State v

. Chrisman , 885 S.W.2d 834, 84 0 (Tenn. Crim. App. 1994).

Fin ding no merit to the defendant’s argument s, the sentence imposed b y6

the trial cou rt is affirmed. However, we remand to the trial court to correct the record regarding the disposi

tion of Count II.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ J. CURWOOD WITT, JR., Judge