# FILED

April 17, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1997 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9604-CC-00131

Appellee, * HENRY COU NTY VS. * Hon. Julian P. Gu inn, Judge GINA RAE MERRELL, * (Possession Controlled Substance with Intent to Deliver (2 c

ounts); Possession Appellant. * Controlled Substance (1 count))

For Appellant: For Appellee: W. Jeffrey Fagan Charles W. Burson Assistant Public Defender Attorney General & Repor ter 117 Forrest Avenue Nort h P.O. Box 663 Georgia Blythe Felner Camden, TN 38320 Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 Robert Gus Radford District Attorney General 24th Judicial District P.O. Box 686 Huntingdon, TN 38344 Vicky Snyder Assistant District A

ttorney General P.O. Box 94 Savannah, TN 38372

OPINION FILED: __________________
AFFIRMED GARY R. WADE, JUDGE1 This information is based on the affidav its of complaint as set forth in t he presentencing report. The g uilty plea hearing t ranscript is not incl uded in the record. 2 OPINION The defendant, Gina Rae Merrell, w as indicted in five counts for the following offenses: counts ( 1) and (2), possession of a Sc hedule IV drug with i ntent to deliver or sell; count (3), possession of a Sc hedule III drug with i ntent to deliver or sell; count (4), si mple possession of a Schedule VI dr ug (marijuana) less th an one-half ounce; and count (5), pos session 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 wer e dismissed by the state. On counts two and three, the trial court imposed a sentenc e of two years; the defendant is to be placed on supervised probation after the service of six months. On count four, th e trial court imposed a sentence of eleven months, t wenty-nine days, with supervised pr obation after six months. All thr ee sentences are to be serv ed concurrently.
In this direct appeal, the s ole issue is whether the trial court erred by denying full probation. We find no error and affirm the judgment of the trial c ourt.
On April 14, 1995, police ex ecuted a search warrant at the home of Jerry Tharpe. The defendant was present. A pill bottle c ontaining seven darv

on tablets and twenty cy

lert tablets was ins ide her purse. The convic tion in count three is based on the sixty

-seven lortab tablets found i nside a small black bag ow ned by the defendant. The conviction in c ount four is based on a marijuana cigarette in the same bag. 1
At the sentencing hearing , the defense attorney informed the tr ial judge that the defendant had recently been released from the hospital w here she3 had been diagnosed as having depression. Defense counsel al so informed the court that the defendant is requi red to undergo physical therapy three days a w eek for treatment for bone spurs. The tri al judge questioned the defendant about whether she had a drug problem, noting the defendant ha d committed these offenses after going through dr ug rehabilitation. The defendant claimed that she was drug-free at the ti me of sentencing.

The presentence report shows that the defendant has ten prior convictions in 1995 for v iolating the "bad check law." She has two drivi ng on revoked license conv

ictions, 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 poss ession of marijuana.
Twenty-six y

ears of age at the time of sentencing , the defendant testified that she suffered from depressio n, asthma, arthritis, recurring cervical cancer, bursitis, and bone s purs in her feet. She admitted hav ing a drug problem dating back to when she w as eleven years old a nd had been through drug rehabilitation twic

e. The defendant has her GED and a limited work history, having primarily work

ed as a waitress at v

arious places.
When there is a challenge to the length, range, or manner of servi ce 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 pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The4 Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives; (4) the nature and characteristic s of the offense; (5) any mitigat ing 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. §§ 40-3 5-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history, and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e 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 indiv idual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). “[E]ach case must be bottomed upon its own fa cts.” State v. Taylor , 744 S.W.2d 919, 922 (T enn. Crim. App. 1987).5 Here, the trial court di d not state on the record the spec ific reasons for denying immediate probation ; however, the defendant's l engthy prior recor d, although all for misdemeanors, clearly warrant ed a jail sentence. See Tenn. Code Ann. § 40-35-103(1)(A). Despite her various pr ior convictions, the defendant has never bee n ordered to serve mo re than te n days in co nfinem ent, havi ng always received sentences that w ere almost all entirely

suspended. Two of the arrests for violating the bad check law and one arrest for dr iving on a revoke

d license occurred after the defendant was arrested and released on bond for the crimes i n 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 repeatedl y violate the law . Tenn. Code Ann. § 40-35-103(1)(A)

.

Significantly, in the presentence report, the defendant g ave her version of events as follows:

I [pled] guilty to [on e] marijuana cig., the medic ation belonging

to Baker chi ld [sic] an d the same pil ls my mother is serving tim e in prison for right n ow. She gave me the pills to keep for her appeal . I'm guilty of havi ng [one] marijuana cig, and bei ng in the wrong pla ce at the wrong time. Lack of candor has traditionall y 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 underly ing 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.6 Accordingly, the j udgment is affirmed.

________________________________________ Gary R. Wad e, Judge CONCUR:

___________________________ Joe B. Jones, Pre siding Judge

___________________________ Curwood Wi tt, Judge