# FILED
January 28, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9712-CR-00553 Appellee, ) ) Knox County v. ) ) Honorable Ray L. Je nkins, Judge MICHAEL DEAN TATE, ) ) (Sentencing) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Darryl W. Humphrey John Knox Walkup P. O. Box 665 Attorney General & Repor ter Knoxville, TN 37914 425 Fifth Avenue North Nashville, TN 37243-0493 Todd R. Kelley Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Randall E. Nichols District Attorney General 400 Main Street Knoxville, TN 37901 Paula R. Gentry Assistant District A

ttorney General 400 Main Street Knoxville, TN 37901

OPINION FILED: ____________________________
AFFIRMED L. T. LAFFERTY, SENIOR JU DGE2 

### O P I N I O N

The appellant, Michael Dean Tate, referred herein as the defendant, appeals as of right from the sentence imposed by the Knox County Criminal Court, following entry of his guilty pleas to sale of cocaine not exceeding one-half g ram and possession of cocaine not exceeding one-half gram w ith the intent to sell. After a sentencing hearing, the trial court imposed fines of $2,000 for eac h offense and sentenced the defendant to six y ears for each offense to be served consecuti vely in the Department of Correction.
The sole issue for appellate review is: Whether the trial court erred w hen it failed to properly consider the mitigating facto r a nd alternative sentencing for the defend ant and i nstead s entence d the def endant t o serve two consecu tive six-year terms of imprisonment in the custody of the Tennessee Department of Correcti on.

After a revie w of the entire record , briefs of the parties, and applicable law, we affirm the judgment of the trial court

.
FACTUAL BA CKGROUND

On May 7, 1997, the defend a nt entered guilty pleas to the sale of cocaine and possession of cocaine with the intent t o sell. The defendant did not include a transcript of the g uilty plea hearing in this record. Apparently, the trial court was to determin e th e appropriate confinement period and w hether an alternative sent ence was appropriate.

The re cord est ablishes the defendant sold a “roc k” of cocaine to an undercover officer in Knox County on October 29, 1994. The defendant was released on bail. On April 28, 1995, law enforcement officers ex ecuted a search warrant at th e defendant’s residence and found three “rocks” of cocaine in a bedroom closet and a tw enty dollar bill from an earlier cocaine buy.3 At the conclusion of the guilty plea proceedings, the tri al court ordered the defendant to report tothe State Probation Office for a present ence report. Thedefendant failed to report to the probation office and was taken into custody on June 26, 1997 until he could be interview

ed. After the interview, the trial court released the defendant on bail and set a sentencing hearing for August 14, 1997.

A review of the sentenci ng transcript reveals the defendant did not testify in support of his application for an alter native sentence, but reli ed on his statement to the trial court and the presentence report. Further, the defendant urged the trial court to place hi m in the Community

Alternatives to

Prison Program (C APP) and thus he co uld beco me a prod uctive member of society. The trial court found the defendant to be a Range I offender a nd sentenced him to the maximum sentence of six years for each offense, to run consecutivelyin the Department of Correction. The trial court ordered the sentences to be served consecutively si nce the defendant was on bail for th e offens e of sale of cocaine when he wasarrested for the possession of c ocaine with the intent to sell. The trial court denied any alternative sentence and ordered the defendant into continuous confinement.

SENTENCING CONSIDERATIONS

In the defendant’s single appellate issue, he contend s the trial court failed to consider and weigh a

mitigating factor w

hich should have resulted in a lesser sentence and an alternative sentence. The state disagrees.

A. Manner of Service

W hen a defendant complains of the imposition of hi s or her sentence, we m us t conduct a de novo r eview with a pr esumption of correctness. Tenn. Code Ann. § 40-35- 401(d). There fore, the burden of showing that the sentence is improper is upon the appealing party. Id. The presumption that det erminations made by the trial court are4

correct is conditioned upon the affirmativ e s howing in the record that the trial court considered the sentencing principl es and all relevant facts a nd circumstances. State v. Ashby, 823 S.W.2d 166 (Tenn. 1991); State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App. 1994).

If appellate review r eflects the trial court pr operly considered all

relevant facts

and its findings of fact are ade quately supported by the record, this Court mus t affirm the sentence “even if we woul d have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an appropriate sentence, the tri al court must consider: (1) the ev idence, if any, receiv

ed at the guilty plea and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternativ

es; (4) the nature andcharacteristics of the criminal conduct inv olved; (5) evidence and in formation offered by the parties on enhancement and mitigating factors; ( 6) any statements the defendant wishes to make in the defendant ’s behalf about the sentencing; and (7) the potential for rehabilitati on and treatment. Tenn. Code Ann. §§ 40-35-210(a) an d (b), § 40-35- 103(5); St ate v. Holland, 860 S.W.2d 53, 60 (T enn. Crim. App. 1993).

The record in this case demonstrates the trial court made adequat e findings of fact. We, therefore, conduct a review of these facts with a presumpti on of correctness. In determ ining the appropriate sentences, the trial court found four enhancement fac tor s supported by the evidence: the defendant has a previous history of criminal c

onvictions
or criminal behavior in addition to those necessa ry to esta blish the appropriate rang e, Tenn. Code Ann. § 40-35-114(1); the defendant has a previous history

of unwillingness to comply with theconditions of a sentence invo lving release in the community, Tenn. Code Ann. § 40-35-114(8); the defendant was convicted of a felony while on bail r elease, Tenn. Code Ann. § 40-35-114(13)(A); and the de fendant was adjudicated to have committed a delinquent

act or actsas a juvenile that w ould have constituted a felony if committed by an adult, Tenn. Code Ann. § 40-35-113(20). The t rial court rejected as a mitigating factor the defend ant’s c riminal conduct neither cau sed nor threatened serious bodi ly injury, Tenn.5

Code Ann. § 40-35-113(1).

We find the record fully supports the trial court’s determination of th ese enhancement factors to raise the defendant’s sentences from the minimum of three years to six years. The pres entence report reveals th e defendant has an extensive cr iminal historybeginning at the age of 13 and including several

drug convictions as a juv enile. The Knox County juvenile autho rities found it necessary to revoke the defendant’s probation and place him in confinement in a juvenile in stitution. As an adult, the defendant has been convicted of the casual exchange of marij uana. At the time of the sentencing hearing, the defendant had four

active criminal charges, r anging from aggrav

ated assault to driving

on a suspended license.

Since the defendant contends that the trial court was in error for failing to apply Tenn. Code Ann. § 4 0-35-113(1), the defendant’s cr iminal conduct neither caused nor threatened serious b odily inju ry, we must determine if the record supports the trial court’s decision. The defendant ple d guilty to t wo Class C felonies, the sale of cocaine not exceeding one-half gram and the possessi on of cocaine not exceeding one- half gram with the intent to sell. The second offense occurred whil e the defendant was on bail release. This Court has held this factor should not be applied when the defendant is con victed of
an offense involving the sal e of cocaine. State v. Keel , 882 S.W.2d 410, 422 (Tenn. Crim. App.), per. app. denied

(Tenn. 1994); State v. Michael Anthony Pike , No. 02C01-9509-CC00261 (Tenn. Crim. App., Jackson, Ja nuary 16, 1 997), per. app. denied (Tenn. 1997); State v. Larry D. Jones

, No. 01C01-9112-CR-00368 ( Tenn. Crim. App., Nashvil le, June 20, 1992), per. app. denied

(Tenn. 1992); see State v. Kenny Cheatham , No. 01C01-9506-CC00196 (Tenn. Crim. App., Nashville, June 11, 1996).
However, this Court has previously held th at, although the voluntar y sale of cocaine mayhave the potential for bodily injury, this mitigating factor was applic abl e “unless t he conduct relates to serious bodily injury and the factor should beconsidered in relation to the facts and circumstances of the particular case.” State v. Johnny Ray Christm an , No.6

01C01-9211-CC-00361 (Tenn. Crim. App., Nashv ille, Sept emb er 2, 1993). In certain circumstances if a defendant sells cocaine in ver

y small quantities t

o a willing buyer, this factor may well be an appropriate mitigating factor. Sta te v. Michael Wayne Henry , No. 02C01-9611-CC-00382 (Tenn. Crim. App., Jackson, May 29, 1997), per. app. de nied (Tenn. 1998); see also State v. Troy Carney and James Andrew Sl aughter , Jr., No. 01C01- 9412-CR-00425(Tenn. Crim. App., Nashville, February 23, 1996), per. app. denied (Tenn. 1997).

Under

the fact s in this re cord, we believe the trial court was correct in rejecting

factor (1), Tenn. Code An n. § 40-35-113 . Although the firs t offense involv

ed the sa le of a

small amount of “rock” cocaine in October, 1994, the defendant contin ued his involvement in the sal es and/or

possess ions of c

ocaine fo r sale. This is eviden ced by the execution of a search warrant in April,1995 whereupon the defendant was found to bein possession of moneyfrom aprevious sale and additi onal “rock” cocaine. The continuous and voluntary sales of cocaine by the defendant reflect his total unconcern for the health and welfare of his fellow citizen s. There is no merit to this issue.

B. Denial of Alt

ernative Sentence

In lieu of c

onfinemen

t, the de fendant u rges th at he is a fa vor able candidate for sentencing to the CAPP and that the trial court erred in failing to consider hi m for that program.

In denying the def endant’s request for probatio n, as well as for placement in the CAPP, the trial court hel d:

With re gard to the request for probation, as well as consideration by the Community Alter natives toPri son Program, the Court observes that this defendant at the outset is attempting to alter the ter ms of any considerationthat he will be given under any program. It’s better t o face these at this point than to wait to revoke later.7 Since the defendant entered two p l eas of guilty to drug offenses, both Class C felonies, ordinarily the defendant w ould be presumed to be a favorable candidate for probation or an alternative sentence, in the absence of evidenc e to the contrary. Tenn. Code Ann. § 40-35-102(6). It is clear from the recor d the defendant would not be entitled to st raight probation, thus the only viable option for the defendant was the CAPP. Th e state had the burden of overcomi ng the def endant’ s presume d candid acy for alt ernative sentencing options.

Th e defe ndant meets the requirement of consi deration for placement in the community

corrections program. See Tenn. Code Ann. § 40-36-106(a)(2) , Persons who
are convicted of drug/alc ohol-r elated felony offenses not involv ing crimes against the person as provided in ti tle 39, chapter 13, parts 1-5

.

In determining the suitability of placing the defendant in any program, the trial court took into cons ideratio n the repo rt of the Knox Coun ty S heriff’s Dep artment CAPP. The report, in the opinion of the CAPP staff, indicated the defendant woul d not be a successful CAPP client due to the defendant’s prior record, history of non-com pliance with Juvenile Court, pending criminal charges, and his attitude and statements regarding CAPP requirements. The defend ant beli eved “C APP is t oo stri ct fo r a Range I offender.” The defendant refus ed to sign the Group/Indiv idual Counseling Contr act because he did not think he would be able to attend due to transportation problem s.
Further, the trial cour

t considered the sentencing principles

of Tenn. Code Ann. § 40-35-103: (1) Sentencing involving c onfi nem ent should be based on the following consider

ations: (A) Confinem ent i s necessary to protect society by restraininga defendant who has a long his tory of criminal conduct; (B) Confinement is neces s ary to avoid depreci ating the seriousness of the off e nse or confinement is particularlysuited to prov ide an effective deterrence to others likely to commit similar offenses; or8 (C) Measures less restrictiv e than confinementha ve frequently or recently been applie d unsuccessfully to the defendant.

The trial court set

out a long list of its reasons for confining the defendant. The court found confinement was n ec essary in view of the defendant’s long history of criminal conduct and past measures less restr ictive than conf inement have been applied unsuccessfully to the defendant. Furthermore, the defendant failed to assist the probation office with prepar

ation of a presentence report. W e agree with the trial court’s findin gs and affirm the judgment.

________ _______________________ ________

_ L. T. LAFFERTY, SENIOR JU DGE
CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JAMES CURWOOD WITT, JR., JUDGE