# FILED August 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710- CC-00469 ) Appellee, ) ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS,JR. MIKE RAMSEY, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF BLOUNT COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : JULIE A. MAR TIN JOHN KNOX WALKUP P.O. Box 426 Attorney Generaland Reporter Knoxvill e, TN 37901-0426 GEORGIA BLYTHE FELNER MACK GARNER Assistant Attorney General Distri ct Public

Defender 425 5th Avenu e North 419 High Street Nashvill e, TN 37243 Maryvil le, TN 37804 MIKE FLYNN Distri ct Attor ney General PHILI P MORTON Assistant Distri ct Attor ney General 363 Court Street Maryvil le, TN 37804 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code Ann. § 39-17-417. -2- 

# OPINION

The Defen dant, Mike Ramsey, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was conv icted, upon his pleas of guilty, of two counts of deli very of marijuana, Cl ass E felonies, and one count of possession of cocaine for the purpose of resale, a Class B felony. 1 The agreed sentences for the two Class E felonies were two ye ars as a Range I standard offender. The agreed sentence for the Class B felon y was ei ght years as a Range I standard offende r. It was furthe r agreed that the tw o-y ear sentences
were to be served concurr ent with eac h other but consecutive to the ei ght-year sentence, for an agreed effective sentence of ten years. The manner of service of the sentences was l eft to t he discret ion of thetrialjudge. After conducting a sentencing hearing, t he trialjudge ordered t hat the Defendant serve seven months in the county jai l for t he Class E felon ies, followed by a co nsecutive term of five months in the county jai l for t he Class B felony , for a total of twelve months in the co unty jail. The balance of t he effective ten-year sentence was ordered to be served in t he community correc tions progra m. Th e Def enda nt app eals from the trial judge’s o rder that tw elve mo nths of th e s enten ces b e serve d in confinem ent. W e affirm the judgm ent of the tria l court.

The marijuana charges resulted f rom the Defen dant’s sa le of mar ijuana to
a confid ential in forma nt. W hile the m arijuana c harges were pending, the Defendant was arrested on a charge of possessing more than .5 grams o f cocaine. The indictments state t hat the marijuana s ales occurred on Janua ry 9-3-

and January 16, 1996, and that the cocaine possessi on took place on August 26, 1996. On appeal, the Defendant argues that the tri al judge abused his discreti on by requirin g the Defendant to serve an addit ional five months for t he cocaine convicti on.

When an accused chall enges the lengt h, range, or manner of service of a sentence, this cour

t has a duty t

o conduct a de novo review of the sentence with
a presumption t hat the determinations made by the trial co urt are co rrect. Tenn. Code Ann. § 40-35-401(d). This presumption is 

### ? conditioned u pon the affirma tive showing in the record that t he trialcourt consi dered the sente ncing principl es and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91).

In conducting a de novo review of a sentence, this cour t must consider : (a) the evidence, if any, r eceived at t he trialand sen tencing heari ng; (b) t he presentence report; (c) the princip les of sen tencing a nd argu ments as to sentencing alternat ives; ( d) the natur e and characteri stics of the crimi nal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack o f potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, -210; State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

The presentence report reflects that the Defendant was twenty-eight years old, s ingle, and had no children. H is forma l educatio n ende d with the e leventh grade but the Defendant stated that he earne d his GED . His employm ent history is fair. He lost his most recent j ob as an electrician’ s assistant due to his ar rest-4-

and legal prob lems. He had been terminatedfrom his pri or employment because he was suspected of smoki ng marij uana wh ile on h is brea k and subs eque ntly refused to take a d rug test.

The Defendant’s criminal history is quite extensive. He has been arrested appro ximate ly eighteen t imes. Among his convi ctions are several t raffi c offenses (includi ng two convictions for driving on a suspe nded license ), on e pub lic i nto xicati on, one casual exchange of marijuana, one sale of marij uana, two thefts, and several ot her unspecif ied misdemeanor s. On the dates of t he marijuana sales, the Defendant

was on pr

obati on from prio r conv ict ions. At th e time the Defendant was charged with possessing the cocaine, his probat ion had expir ed but he was on bond pending resolution of the marij uana charges.

The Defendant testifi ed conce rning hi s long history of dru g and alcohol abuse. He started ex perimenting wi th marijuana when he was about thi rteen y ears old. In add ition to alcoh ol, he “we nt to pills like valium s, a nd the n event ually . . . started cocai ne use.” He reache d the point that he was experienci ng memory loss and blacko uts. He said thath e sold m arijuana to support his own drug habi t. The Defendant admitted that he started u sing cocaine fairl y heavil y foll owing h is arrest on the charges of

selli ng marijuana. The Defendant test ified at the sentenci ng hearing that he had b ee n in jai l for about five months, and 

### ? after bei ng in jai l this long and t hey ’ve been overcrowdi ng us, and for fear of goi ng to priso n, I intend to walk a st raight l ine and sh ow the c ourt I can d o right.”-5- Concerning the amo unt of tim e the D efend ant wa s to se rve in confinem ent, the judge stated, He is being gi ven an alternative sentence, but st ill the — giv ing him the longer

time in custody, I think, a re all the sam e thing s that w ould have justified sen ding him to the pen itentiary. That is, it’s necessa ry to protect society

by restraini ng a person who has a long history of criminal cond uct, ne cess ary to a void de precia tin g the seriousness of the offe nse, a nd thin gs less restrictiv e tha n confinem ent have been used recentl y without success. Allof those t hings apply to this set of fac

ts that we h ave here.
We believe t hat the Defendant ’s lengt hy criminalrecord, the fail ure ofpast attemp ts to rehabil itate hi m, and his conti nued disregard f or the law s of this State justify t he len gth of confinem ent ordered b y the trial judge. Trial judges are tradition ally vested wit h broad discretion in sentencing matters
. From this recor d, we are unable to conclude that the tri al judge er red or abused hi s discret ion.
The judgment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOSEPH M. TIPTON, JUDGE