FILED

April 17, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9604-CC-00131 

Appellee, * HENRY COUNTY

VS. * Hon. Julian P. Guinn, Judge

GINA RAE MERRELL, * (Possession Controlled Substance with

Intent to Deliver (2 counts); Possession

Appellant. * Controlled Substance (1 count))

For Appellant: For Appellee:

W. Jeffrey Fagan Charles W. Burson

Assistant Public Defender Attorney General & Reporter

117 Forrest Avenue North

P.O. Box 663 Georgia Blythe Felner

Camden, TN 38320 Counsel for the State

450 James Robertson Parkway

Nashville, TN 37243-0493

Robert Gus Radford

District Attorney General

24th Judicial District

P.O. Box 686

Huntingdon, TN 38344

Vicky Snyder

Assistant District Attorney General

P.O. Box 94

Savannah, TN 38372

OPINION FILED: __________________

AFFIRMED

GARY R. WADE, JUDGE
1This information is based on the affidavits of complaint as set forth in the

presentencing report. The guilty plea hearing transcript is not included in the record. 

2

OPINION

The defendant, Gina Rae Merrell, was indicted in five counts for the

following offenses: counts (1) and (2), possession of a Schedule IV drug with intent

to deliver or sell; count (3), possession of a Schedule III drug with intent to deliver

or sell; count (4), simple possession of a Schedule VI drug (marijuana) less than

one-half ounce; and count (5), possession of over .5 grams Schedule II drug

(cocaine) with intent to deliver or sell. She pled guilty to counts two, three, and four;

the remaining counts were dismissed by the state. On counts two and three, the

trial court imposed a sentence of two years; the defendant is to be placed on

supervised probation after the service of six months. On count four, the trial court

imposed a sentence of eleven months, twenty-nine days, with supervised probation

after six months. All three sentences are to be served concurrently. 

In this direct appeal, the sole issue is whether the trial court erred by

denying full probation. We find no error and affirm the judgment of the trial court. 

On April 14, 1995, police executed a search warrant at the home of

Jerry Tharpe. The defendant was present. A pill bottle containing seven darvon

tablets and twenty cylert tablets was inside her purse. The conviction in count three

is based on the sixty-seven lortab tablets found inside a small black bag owned by

the defendant. The conviction in count four is based on a marijuana cigarette in the

same bag.1 

At the sentencing hearing, the defense attorney informed the trial

judge that the defendant had recently been released from the hospital where she
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had been diagnosed as having depression. Defense counsel also informed the

court that the defendant is required to undergo physical therapy three days a week

for treatment for bone spurs. The trial judge questioned the defendant about

whether she had a drug problem, noting the defendant had committed these

offenses after going through drug rehabilitation. The defendant claimed that she

was drug-free at the time of sentencing. 

The presentence report shows that the defendant has ten prior

convictions in 1995 for violating the "bad check law." She has two driving on

revoked license convictions, one which occurred in 1992 and one from 1995. She

also has a 1992 conviction for unlawful use of a license and she has a 1991

conviction for simple possession of marijuana. 

Twenty-six years of age at the time of sentencing, the defendant

testified that she suffered from depression, asthma, arthritis, recurring cervical

cancer, bursitis, and bone spurs in her feet. She admitted having a drug problem

dating back to when she was eleven years old and had been through drug

rehabilitation twice. The defendant has her GED and a limited work history, having

primarily worked as a waitress at various places. 

When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
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Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence. 

Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for

probation are the circumstances of the offense, the defendant's criminal record,

social history, and present condition, and the deterrent effect upon and best interest

of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). 

Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-

102(6). With certain statutory exceptions, none of which apply here, probation must

be automatically considered by the trial court if the sentence imposed is eight years

or less. Tenn. Code Ann. § 40-35-303(a), (b).

Alternative sentencing issues must be determined by the facts and

circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.

1986). “[E]ach case must be bottomed upon its own facts.” State v. Taylor, 744

S.W.2d 919, 922 (Tenn. Crim. App. 1987).
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Here, the trial court did not state on the record the specific reasons for

denying immediate probation; however, the defendant's lengthy prior record,

although all for misdemeanors, clearly warranted a jail sentence. See Tenn. Code

Ann. § 40-35-103(1)(A). Despite her various prior convictions, the defendant has

never been ordered to serve more than ten days in confinement, having always

received sentences that were almost all entirely suspended. Two of the arrests for

violating the bad check law and one arrest for driving on a revoked license occurred

after the defendant was arrested and released on bond for the crimes in this case. 

These drug offenses occurred after the defendant had just completed a drug

rehabilitation program. A period of "shock" confinement may be necessary to

protect society from the defendant's propensity to repeatedly violate the law. Tenn.

Code Ann. § 40-35-103(1)(A). 

Significantly, in the presentence report, the defendant gave her version

of events as follows: 

I [pled] guilty to [one] marijuana cig., the medication

belonging to Baker child [sic] and the same pills my

mother is serving time in prison for right now. She gave

me the pills to keep for her appeal. I'm guilty of having

[one] marijuana cig, and being in the wrong place at the

wrong time.

Lack of candor has traditionally been a valid reason for the denial of probation. 

State v. Poe, 614 S.W.2d 403 (Tenn. Crim. App. 1981). "The opportunity for

probation is always enhanced by the acceptance of responsibility in the honest

recitation of both the facts underlying the offense and the circumstances under

which the crime was committed." State v. Michelle Westfield, No. 03C01-9604-CC00159, slip op. at 5 (Tenn. Crim. App., at Knoxville, March 4, 1997). Under these

circumstances, we cannot conclude the trial court erred by ordering a period of

confinement. 
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Accordingly, the judgment is affirmed.

________________________________________

Gary R. Wade, Judge

CONCUR:

___________________________

Joe B. Jones, Presiding Judge

___________________________

Curwood Witt, Judge