### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

ugust 7, 2001
STATE OF TENNESSEE v. MICHAEL A . FOSTER
Direct Appeal from the Criminal Court for Shelby County No. 99-00066 Arthur T. Bennett, Judge

No. W2000-01838-CCA-R3-CD - Filed August 21, 2001

The App ell ant , Mi chae l A. Fos ter , wa s in dic ted by a Shelb y County Grand Jury for possession of cocaine in excess of .5 gram, a class B felony. Under the terms of a pl ea agreemen t, Foster pled guilty to criminal attempt

to possess cocaine

less than .5 gra

m, a class D

felony. The plea agreement further provided that Foster would receive a sentence of two ye ars with the manner of service of the sentence to be determ ined by the tri al court. Fo llowing a sentencing hearing, the trial court ordered that Foster’s two-year

sentence be ser

ved in confinemen

t in the Shelby County Correction Center. On a ppeal, Foster argues that the trial court erred in deny ing an alternative sentence. Finding no error, we aff

irm the judgment o

f the trial court. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is Affirme

d.

D AVID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. William D. Massey, Memphis, Tennessee, for the Appellant, Michael A. Foster.

Paul G. Summers, Attorney Genera l and Re porter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Atto rney Gene ral; William L. G

ibbons, District Att

orney Gene

ral; and David Pritchard, Assistant District Attorney General, for the Appellee, State of Tennesse e.

OPINION Factual Backgrou

nd On May 1, 199 8, Memphis police of ficers executed

a search warr

ant at the Appella

nt’s residence. Upon

entering the re

sidence, office

rs observed the A

ppellant disposing

of cocaine in the kitchen sink. After a further search, officers found 8.2 grams of coc aine in the Appellant’s bedroom, and recovered 1.1 grams of cocaine from the kitchen sink.-2-

On June 30, 2000, a sentencing hearing was conducted by the tria l court which developed the following fa

cts. The Appellan

t is thirty-e

ight year s old and receive

d his GED while incarcerated in the Kentucky Corrections Sy stem. The Appellant’s prior criminal history involves sixteen convictions, including four misdemeanor drug offenses for possession of cocaine and marijuana, and two felony drug off enses for possession of cocaine with intent to sell. The two felony offenses occurred in Kentucky in 1990, where the Appellant received consecutive five-year sentences. The Appellant was parole d to Tennessee in 1991. In 1993, his parole was revoked. After serving additional time, he was again paroled to Tennessee in De cember 1993. At the time of the current offense, the Appellant was on parole for the 1990 Kentucky felony drug convictions. The trial court denied the Appellant an alternative sentence and imposed total confinement for the following reasons: (1) the Appellant’s long history of criminal conduct, (2) confinement was necessary to avoid depreciating the seriousness of the offense, (3) confinement was particularly suited for the Appellant to provide an effective de terrent, and (4) the Appellant’s failure at reha

bilitation by l

ess restrictive s

entences.
ANALYSIS The Appellant contends that the trial court erred by deny ing his request for an alternative sentence and, specifically, the alternative sentence of community corrections. When the sentencing cou

rt properly

considers the re

levant sentencin

g consideration

s, this court conduc

ts a de novo review with the presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40

-35-401(d) (199

7); State v. Ashby , 823 S .W.2 d 166, 169 (T enn. 1 991). In the present case, the trial court properly considered princ iples of sentencing. Accordingly, the sentence is aff

orded the presump

tion of correctn

ess. The Appellant mai

ntains the burden o

f showing that his

sentence of tota

l confinement is improper. Tenn. Co

de Ann. § 40-35-40 1, Sentencing Com mission Comments, (19

97); Ashby , 823 S.W.2d at 169. In making our review, this court must consider the evidence presented a t the sentencing hearing, the presentence report, the principles of the sentenc ing, the arguments of counsel, the nature and characteristics of the offense, any applicable enhancement or mitigating factors, any statements made by the Appellant, and the Appellant’s potential for rehabilitation. Tenn. Code Ann. § 40

-35-102, -103, -2 10 (1997); Ashby , 823 S.W.2d at 168. Because the Ap

pellant was convi

cted as a rang

e 1 offender fo

r a class D felony

, he is presumed to be a favorable candidate for an alternative sentence, absent e vidence to the contrary. Tenn. Code Ann. § 40

-35-102(5), (6)

(1997). Evidence

to the contrary

may be esta

blished if it is shown that the Appe

llant has a long hi

story of cr

iminal conduct, tha

t confinement is ne

cessary to avoid depreciating the seriousness of the offense, that confinement is particularly suited for the Appellant to provid

e an effective

deterrent, or th

at the Appellant ha

s not been rehabi

litated with less restrictive methods. Tenn. Code Ann. § 40-35-103(1)(A)-(C) (1997). In the present case, we find that the trial court properly denied the Appellant’s request for alternative sentencing, based upon its finding of (1) an extensive history of c riminal activity, (2)-3-

the need to avoid d

epreciating th

e seriousness of t

he offense, (3)

that confinement

is particularly suited for the App

ellant to provide a

n effective det

errent, and (4)

the failure of pr

eviously imposed sentences to provide effective rehabilitation. Any one of these fa ctors is sufficient under the provisio

n of Tenn. Code Ann

. § 40-35-103(1) (

A), (B), or (C)

to defeat entitle

ment to an alternative sentence. The proof is replete with “evidence to the contrary ,” justifying the trial court’s imposition o

f total confineme

nt.

CONCLUSION After review of the issues before us, we conclude that the trial court did not err by denying th

e Appellant’s re

quest for an alte

rnative sentenc

e. The Appellant h

as failed to estab

lish tha t th e sen ten ce of tot al c onf ine men t as imp ose d by t he t ria l co urt was imp rop er. A ccor din gly, the judgment of the trial court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE