### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs M

arch 20, 2001 STATE OF TENNESSEE v. LLEWELYN D. LARMOND Direct Appeal from the Criminal Court for Sullivan County Nos. S42552; S42661; S43169 Phyllis H. Miller, Judge

No. E2000-01910-CCA-R3-CD April 10, 2001 Pursuant to anegotiated plea

agreement,

the defendant ple

d guilty to tw

o counts of selling

0.5 grams or more of cocaine

, possession of mar

ijuana, and the sa

le of counterfe

it coca ine. He received an effectivesentence of sixteen years. The manner of service of his sentences was left to the discretion of the trial court.

Defendant now c

ontends the trial c

ourt erred in

denying his request for alternative sentencing. Af

ter a thorough r

eview of the rec

ord, we affirm th

e judgment of the

trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which J ERRY L. S MITH and A LAN E. G LENN , JJ., joined. Steve M cEwen, Mountain Ci ty, Tenness

ee (on appeal) ; Stephen M. Wallace , District Public Defender; and Lesl

ie S. Hale, Assistant District Public Defender, Blountville, Tennessee (at hearing) , for the appellant, Llewelyn D. L armond. Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; H. Greeley Wells, Jr., District At

torney Gen

eral; and Teresa

Murray-Smith, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Pursuant to a negotiated plea agreement, the defendant pled g

uilty to two counts of selling 0.5 grams or more of cocaine , possession of marijuana, and the sale of counterfeit cocaine. The defendant received an effective sentence of sixteen yea rs, and the manner of service of his sentence was left to the discretion of the trial court. T h e defendant now contends the tria

l court erred in denying hi

s request for alte

rnative sentenc

ing. We affirm the

judgment of the tr

ial court.-2- BACKGROUND Pursuant to the unc

ontested recita

tion of facts

presented by the Assistant District Attorney General at the g uilty

plea hearing and the defendant's presentence report, we find the pertinent underlying

circumstances s

urrounding the d

efendant's co

nvictions to be as f

ollows: On October 27, 1998, poli ce informan t, David Gre er, went to t he defendant 's apartment. The defendant sold Greer a rock of cocaine weighing 1.1 grams for $300. Based upon this transaction, Officer Harold Tucker obtained a search warrant for t he pr emises. On October 28, 1998, Officer Tucker executed the warrant, at

which time t he defendant began to run down the hallway of the apartment complex an d dropped t wo bags conta ining 13.6 gr ams of marijuana. The officers obtained the drugs, and the defendant was arrested. On March 23, 1999, apparently while the defendant was on bond for the prior charges, police informant, Angela Phillips, was wired with an audio transmitter and negotiated a future sale with the defendant for one ounceof powder cocaine. Thereafter, she informed the defendant she currently wantedto purchase cocaine. The defendant then went to his car and returned with the purported cocaine. The informant paid the defendant $900 and took the purported cocaine to the officers. The purportedcocaine was in rock form and weighed 13.8 grams. Field testing re vealed that the substance was not cocaine. Pursuant to their March 23rd negotiations, on April 5, 1999, Phillip s was again wire d with an audio transmitter andproceeded to the WalMart store parking lot in Bristol, Tennessee, where she met the defendant. T

he defendant g

ot into Phillips’ vehic

le and gave her

14.6 grams of powder cocaine in exchange for $1,500.

DENIAL OF ALTERNATIVE SENTENCING The defendant contends the trial court er red in deny

ing his request

for alternat ive sentenc ing. Spe cif ica lly, the defendant a rgues: (1) the trial court place d too much e mphasis on the defendan t's prior crimin al history ; (2) the trial court inappropriately applied enhancement factor two (the defendant was the leader of an offense involving two or more criminal ac tors); (3) t he trial court improperly

found that the October offenses were committed while the defendant was on probation; and (4) the trial court failed to consider the defendant's mitigation proof. A. Standard of Review This court’s review of the sentence i mposed by the

trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sent e ncing principle

s and all relevant facts and circumstances. State v. Ashby , 823 S .W.2d 166, 16 9 (Tenn. 1991). If the trial-3-

court f ails to c omply with the statutory directives, there is no presumption of corre ctness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). Under the Criminal Senten

cing Reform Act

of 1989, tr

ial jud ges are encou

raged to use alternatives to incarceration. An especially mitigated or standard offender convicte d of a Class C, D or E felony

is presumed to be a

favorable can

didate for alter

native sentencin

g options in the absence of evidence t o the contrary. Tenn. Code Ann. § 40-35-102(6). One convicted of se lling cocaine ove r 0. 5 gra ms, a Cl ass B fel ony, is not presumed to be a favorable candidate for alternative sentencing. Id. In determining if in

carceration is

appropriate, a trial court may consider the need to protect society by restraining a de

f endant having a

long history

of criminal condu

ct, the need to av

oid depreciating the seriousness of the offense, whe

th er confinement is pa

rticularly appropriate to effectively

deter others like

ly to commit simi

lar offenses,

and whether less restrictive measures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103 (1); see also Ashby , 823 S.W.2d at 169. A court may also consider the mitigating and enhancing factors set forth in Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103 considerations. Tenn. Code Ann. § 40-35-210(b)(5 ); State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the

defendant’s pote

ntial or lack of po

tenti al forrehabilitation when determining if an alternative sentence would be appr opriate. Te nn. Code Ann. § 40-35-103(5); Boston , 938 S.W.2d at 438. B. Analysis Init ial ly, the defendant contends that the trial court placed

too much emphasis on his prior criminal histor y. Se e Tenn. Code Ann. § 40 -35-114(1). We dis

agree. The we

ight to be given

to eachsentencing fa

ctor is left to the discretion of the trial court. State v. Moss , 727 S.W.2d 229, 237 (Tenn. 1986). In addition to his current drug convictions, the presentence report reveals the defendant was convictedin North Carolina on January 4, 1999, of possession of a stolen vehi cl e, conspiracy to sell/deliver

cocaine, and possession of cocaine. The North Carolina offenses were committed over a nine-month time span, during which time the defendant committed two of the current off

enses in Tennessee. The remaining Tennessee offenses occurred within a y ea r of the la st North Carolina offense. Therefore, we conclude the trial court appro priately held that the defendant’s extensive criminal record of drug

-related offe

nses, which were

amassed in a short

period of time, de

se rve d considerable weight. Sec ond ly, the defendant c

ontends t he t rial court improperly concluded that the defendant was a leader of an offense involving two or more criminal actors. See Tenn. Code Ann. § 40-35-114(2). The defendant testif

ied that he would c

ome to Tennessee with hi s friend, “Mike,” who was also a-4-

drug dealer. He further testified that “Mike” would give him drugs to support his habit. However, it is unclear whether “Mike” was with the defendant du ri ng these transactions. Regardless of the applicability

of this enhancement factor, we reach the same conclusion as to the propriety of the denial of alternative sentencing. Thi rdl y, the defendant contends the trial court inappropriately found the defe ndant was on proba tion when he committed t he October 1998 o

ffenses. The pr

esentence rep

ort supports his contention. However, the defendant does not dispute that the oth

er offenses we

re committed while he was on probation from his North Carolina convictions. Again, the fact that the defendant was not on p ro bation during the October 1998 offenses is not determinative as to the denial of alternative sentencing. The trial court noted that the defendant had a prior history of unwillingness to c

omply with conditions of a sentence involving release into the community. See Tenn. Code Ann. § 40-35- 1 14(8). Foll owing his arres t in Tennessee fo

r the October 199 8 offenses, the d efendant’s Nor

th Carolina probation was revoked. In addition to the commission of further offenses, the defendant’s presentencereport and testimony at the sentencing hearing indicate the defendant failed to report to his probation officer in North Carolina, violate

d his curfew, fa

iled to pay hi

s fees, and faile

d to attend drug and alcohol counselin g. Furthermor

e, pursuant to Ten

n. Code Ann. § 40-35 -103(1), less restrictive measures than confinement have recently

been unsuccessf

ully applied

to the defendant. Fin all y, the defendant contends the trial court failed to consider his mitigating proof. At the sentencing hearing, the defendant testified that he had been using drugs since he wa s twel ve or thirteen years old. He claims he completed an inpatient treatme

nt program while

in prison in

North Carolina. However, on cross-examination thedefendant admitt ed that he had use

d marijuana while in prison in North Carolina. He further stated that the present offenses were committed to support his cocaine addiction. The defendant also testifi ed that if he had known how severe the penalties were in Tennessee, he would not have sold the cocaine here. The trial court found that the defendant was evasive and untr

uthful, and the de

fendant’s past e

fforts at rehabilitation

were done in

an effort to lessen his North Carolina sentence. We find no error in the trial court’s refusal to find any mitigating factors.

CONCLUSION The trial court prope

rly considered the defendant’s long history of criminal conduct. See Tenn. Code Ann. § 40-35- 103(1)(A ). The trial cour t properly c

oncluded that mea

sures less restrictive than c onf

inement had been unsuccessful. See Tenn. Code Ann. § 40-35-103(1)(C). Furthermore, the trial court properly considered the defendant’s lack

of potential for rehabilitation. See Tenn . Code Ann . § 40-35-103(5). We see no reason to reverse the trial court’s denial of alternative sentencing. The judgment of the trial court is affirmed.-5- ___________________________________ JOE G. RILEY, JUDGE