### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Bri efs Jul y 9, 2002

STATE OF TENNESS EE v. MICHAEL L . T AYLOR

Direct Appeal from the Circuit Court for Hardin County No. 8049, 8050 C. Creed McGinley, Judge

No. W2001-02744-CCA-R3-CD - Filed August 23, 2002

Pursua nt to a negotiated plea agr eement, the defendant pled guilty to possession of crack cocaine withthe intent to resel l, distribut e or manufacture, possession of marijuana, possession of drug paraphernalia, and four

counts of

the sale of over . 5 gramsof crac k cocain e . The defendant was sentenced as agreed to nine (9) y ears for each felony

count and eleven months and twenty -nine da ys for eac

h misdemea

nor coun t. The ag reemen t also pro vided tha

t all of the

sentenc es would be served concurrently

for an effective nine-y

ear sentence. Following a s e ntencing hearing, the trial court denied alternative sentencing. I n this appeal, the defendant cha llenges the denial of alternative sentencing. We affirm.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d

J OHN E VERE TT W IL LI AMS , J., deliver ed the opinion of th e court, in which N ORMA M C G EE O GLE and A LAN E. G LENN , JJ., joined.

Guy T. Wilkin son, Distr

ict Public D efende

r; and Richard W. De Berry , Assistan

t Public Defender, for the appellant, Michae l L. Tay lor.

Paul G. Summers, A ttorneyGenera l and Repo

rter, Ma rk A. Ful ks, Assista

nt Attorne

y General ; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION

The de fe nd an t, Mi ch ae l L. Ta ylo r, pl ed gu il ty, in cas e number 8049, to one count of possession of a controlled substance with the intent to resell, distribute or manufactur e, a Class B fe lo ny; one coun

t of posse ssion of ma

rijuana , a Class A misdemeanor; and one count of possession of drug

paraphe rnalia, a Class A mi sdemeanor. The def endant a lso pled g

uilty , in

ca se number 8050, to fo ur countsof the sa

le of a c ontrolled

substanc e, all Cla ss B felo nies. Pursuant to a plea agreement, the def endant was sentencedas follows: nine (9) ye ars for each of the felony offe

nses, and eleven months and twenty -nine days for each of the misdem eanors, with all counts to be served concurrently , for an effective nine-y ear sentence. After a he aring on-2-

alter native sentencing, the trial court denied the defe ndant’s request for a sentence in the

co mmunity

corrections program and orde red him to serve his sentence in the Department of Correction. The de fendant file d this timely appeal challeng ing the trial court’s denial of an alterna tive sentence. Case numbers 8049 and 8050 have been c onsolidated for the purpose of this appe al.

Standard of Review

When an accused challenges the manner of service of a sent e nce, such as the denial of an alternative sentence, this Court’s review of the sentence is de novo with a pr esumption of

correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge c onsidered the sentencing pr i nciples a nd all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to c omply

wit h the statutory directives, the re is no presumption of correctness and our review is de novo. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).

When conducting a de

novo revie w of

a sentence, this Court must consider: (a) the evidence, if any, re ceived at the trial and the sentencing he aring; (b) the pres enten ce report; (c) the principle s of sente

ncing a nd arguments as to se ntencing alt ernatives; (d) the nature and ch aracteristics of the criminal conduct involved; (e) any statutory mitigating

and enhancement factor s; (f) any sta temen t made by the defe ndant regardi ng sent encin g; and ( g) the poten ti al or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, - 103, -210 ; Sta te v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988).

Under the Criminal Sentencing Reform Act of 1989, trial judges ar e en courage d to use alternatives to incar

ceratio n. An especially

mitigate d or stand ard off ender c onvicted

of a Class C, D or E felony is pre sumed to be a favorable candidate for a lternat ive sentenc ing options in the absence of evidence to the contrary . Tenn. Code An n. § 40-35-102(6). Due to the instant defendant’s C las s B felony c onvictions, he is not presumed to be a favorable candidate for alternative sentencing . M oreover, the defendant is ineligible for pr obation since his sentence

ex ceeds eight ye ars. See Tenn. Code Ann. § 40-35-303(a). Nevertheless, the de fendant may be eligible for par ticipatio n in a comm

unity corrections prog

ram, ano ther for

m of alter

nati v e sentence, if he satisfies the minimum eligibility criteria se t forth at Tenne s see Code Annotated section 40-36-106(a). An offender desiring a community correction s sentenc e must demo nstrate that he or she: (1) . . .w ithout this o

ption, would be inca

rcera ted in a c orrect

ional institution; (2) . . .[was] co nvic t ed of property -related or drug/alcohol-re lated felony of

fenses or other felony offense s not involving cri mes aga inst the pe

rson . . .; (3) . . .[wa s] convicted of nonvio lent felo ny o ffense s; (4) . . .[was] co nvicted o f felony offense s i n which the use or possession of a weapon w as not invo lved; ( 5) . . .[does] no t demonstr ate a pr esent or past patte

rn of beh avio r indica

tin g violence ; (6) . . .[does] not demonstrate a pattern of committing violent offenses; and-3-

(7) . . .[was not] sentenced to incarceration or on escape a t the time

of consideration. . . . Tenn. Code Ann. § 40-36-106(a).

All offenders who meet the requirements of the Commun ity Cor rections Act are not entitl ed to be sentenced pursuant to that act as a matter of law

. State v. Grandberry , 803 S.W.2d 706, 7 07 (Tenn. Crim. App. 1990). After determining that an off ender is eligible for a community

corrections sentence, the trial court, apply ing the sente ncing c onsidera tions set f

orth in Tennessee Code Annotated s ection 40-35-103 and general sentenc ing guidelines, determines whether the offe nder is e ntitled to a

sentenc e under t

he Communit

y Corr ect io ns A ct. In determining if incarceration is appropriate, a trial cour t may cons ider the need to pr otect soc iety by restr ainin g a defen dant h aving a long hi story of crimin al conduct, the nee d to avoid depreciating the seriousness of the offense , whethe

r confinement is pa

rticular ly a ppropria te to effec tively

deter others likely to c ommit similar offenses, and whether less rest rictive measures have often or recently

been unsuccessfully

applied to the defendant. Tenn. Code An n. § 40-35- 103(1); State v. Ashby , 823 S.W.2d 169 (Tenn. 1991).

Analysis

At the hearing on alternative sentencing, both parties relied on a presentence re port prepared by t he commu nit y corrections program. In a ddition to the seven instant offenses, the defendant has thre e prior f

elony convicti o ns for de liv ery of a controlled substance, one prior felony conviction for aggrava

ted assault, one prior misdemeanor conviction for possession of a controlled substance, three prior misdemeanor convictions for evading ar rest, one prior misdemeanor

convicti on for re sisting a rrest, a nd one pr ior misdem

eanor c onviction

for assa ult, for a total of four prior felony and six prior misdemeanor convictions. I n addi tion, the presentencerepo rt indicates that the defendant has previously violated the conditions of probation and parole. Finally, he h as a prio r arre st/charg e for ag grava ted domes tic assau

lt, which was dismissed because the victim did not appear in court.

The trial co urt first

noted tha

t the def endant is not presu

med to be a

favora ble cand idate for alternative sentencing because of the five Class B felony co nvic tions. After reviewing the presentencereport, the tr ial court found that the defendant was not an appropria te candidate for alternative sentenc ing due to his extens ive crimi nal histo ry, as we ll as the number of offenses involved in the instant cases.

Upon de novo r

eview, w e first no te that it isargua ble wheth er the de fendant e ve n meets the eligibility criteria

for placem ent in the community corre ctions program due to his prior convictions for assault and aggra vated assault. However, even if he were deemed eligible under the Community

Co rrectio ns Act, we conclude that the trial court did not err in deny ing community

corrections due t

o the def endant’ s extensive

criminal r ecord and the past failure of measures less restrictive than confinement to curb his criminal activity.-4- CONCLUSION

Accordingly , we see no reason to disturb the sentence of the tria l court.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE