# FILED
January 20, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CR IMINAL APPEALS OF TENNESSE E AT JACKSON DECEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01-9612-CC-0 0473 ) ) Dyer County v. ) ) Joe G. Riley, Judge ) ) (Sentencing) CYNTHIA LYNN MANCEL L, ) ) APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE: G. Stephen Davis John Knox Walkup District Public Def

ender Attorney General & Reporter 208 North Mill Avenue 500 Charlotte Avenue Dyersburg, TN 38025-0742 Nashville, TN 37243-0497 Janis L. Turner Assistant Attorney General 450 James Robertson Parkwa y Nashville, TN 37243-0493 C. Phillip Bivens District Attorney Gener al P.O. Box Drawer E Dyersburg, TN 38024

OPINION FILED:_____________________________
AFFIRMED Joe B. Jones, Presiding Judge2 

## O P I N I O N

The app ellant, Cynthia Lynn Mancel l (defendant), was convic ted of possessing marijuana

over .5 ounces with intent to sell, a Class E f elony, following her plea to the offense. There was no plea agreement regarding punishment. The trial court conducted
a sentencing hearing, found the defendant to be a standard offender, and sentenced the defendant to serve ninety (90) days in the Dyer County Jail and serve two (2 ) years pursuantto the Community Correcti ons Act. Tenn. Code Ann. § 40-36- 101, et
. seq . In this court, the defendantcontends her sentence is excessive. She argues the trial court should have permitted her to serv e the enti re sentence pursuant to the Com munity Corrections Act. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presentedfor review, it is the opin ion of this court that the j udgment of the trial court should be affirmed. Dyer s burg police officers obtained a search warrant authoriz ing the search of the defen dant’s residence. While executing the warrant, officers seized 140 gra ms o f marijuana. The defendant admitted she sol d th r ee ounces of marijuana before she was arrested by the officers. The officers overlooked an additional pound of marijuana located in the freezer compartment of the defendant’s refrigerator. She subsequently told officers about the pound of marijuana after s he had burned it. The defendant claimed she burned the marijuana because she thought she would be requir ed to serve a lengthy sentence in the Department of Correcti on due to the quantity of marijuana she p ossessed. An officer testified he had informati on the defendant had sold the pound of ma rijuana. An officer testified there was “a very large drug problem in Dyer County.” He opined trafficking in marijuana had increas ed, stating “its

increasing. It’s getting more and more marijuana

now than it was recently .” The officer classi fied the marijuana possessed by the defendant as “a sizeable quantity, ” whi ch indicated the defendant was trafficking in this substance. The defendant is married and the mother of three children. The defendant cares for her mother-in-law, w

ho suffers from diabetes, b lindness, and a mental impairment. She ta kes care of her niece and nephew. One of these children is handi cappe d. Th e3

defendant’s brother and sist er-in-la w live with the defendant. The defendant’s husband and brother are both long distanc e truck drivers. They

are away from home several days each week. Th e defendan t was 34 years of age when she was sentenced. She admitted to trafficking in marijuana. According to the defendant, her husband had surgery for a workrelated injury and had not worked f or eightmonths. She was working to support the family

-- all ten people who lived w ith her. She became ill and her employer terminated

her when her place of employment clos ed. Her income was $134 per week. She said she s old marijuana to help support the family. The defendant used a $1,000federal income tax overpayment check to purchase
one and one-half pounds of marijuana. She claimed she was a user of marijuana, and her supplier, who knew

about her financial problem s, offered to sell her the marijuana so she could generate income to support her family. The defendant testified she continued to use marijuana as a substitute for “nerve medication.” The trial court found four m itigating factors. The factors i ncluded (a) her conduct did not cause or threaten serious bodily injury, Tenn. Cod e Ann. § 4 0 -35-113(1), (b) her criminal conduct related to providing necessaries for her family, Tenn. Code Ann. § 40-35- 113(7), (c) she entered a plea of guilty, Tenn. Code An n. § 40-35-113(13), and(d) she had not been convicted of a felony. Tenn. Code Ann. § 40-35 -113(13). The court found two enhancementfactors: (a) she has a history o f both criminal convic

tions and criminal conduct, Tenn. Code Ann. § 40-35-114(1) , and (b) she has a history of unwillingnes s t o comply with conditions of release into the commu nity, Te nn. Code Ann. § 40-35-114(8). The defendant does not challenge either the mitigating factors or the enhancement factors found by the trial court. Several reasons were advanced for r equiring the defendant to serve a portion of her sentence. First, the defendant had sever al convicti ons and several admitted acts of criminal conduct. Tenn. Code Ann. § 40-35- 103(1)(A). Second, confinem ent was necessary to avoid d epreciating the seriousness of the offense committed by the defendant. Tenn. Code Ann. § 40-35-103(1)(B). Third, there was a need for general deterrence regarding the selling of i llicit narcotics i n Dyer County. Tenn. Code Ann. § 40-4

35-103(1)(B). Fourth, less restri ctive measures in the past proved to hav e b een unsuccessful in reforming the defendant’s conduct. Tenn. Code Ann. § 40-35-103(1)(C). When the defendant challenges the manner in which thesentence is to be served, it is the duty of this court to conduct a de novo review of the record with a presumption the factual determinations made by the trial court are c

orrect. Tenn. Code Ann. § 40-35-401(d) (1997 Repl.). This presum

pti on is "condit ioned upo

n the affi rma ti ve showing i n the r ecor

d t hat t he tr i al cour t consi dered t he sentenci ng p rin c ipl es and all rel evant facts and cir cum

stances." Stat e v. Ashby

,823 S.W.2d 166,169 (Tenn. 1991). T h e pre su m ptio n d oe s n ot a pp ly to the leg al c on clu sio ns rea ch ed by the trial co urt in sent enci ng the ac

cused or t o the det ermi nat

i ons m ade by t he tr i al cour t which ar e pre

di cated upon uncon tr overted facts. Stat e v. Butl er

,900 S.W.2d 305,311 (Tenn. Cri m . App. 1994); St ate v. Smit h ,891 S.W.2d 922,929 (Tenn. Cri m . App.) , per . app . deni ed (Tenn. 1994); Stat e

v. Bonestel ,871 S.W.2d 163, 166 (Tenn. Cri m . App. 1993)

. How ever ,t hi s cour t i s r equi red t o gi ve gr eat weight t o the t ri al cour t ' s det ermi nat i on of c ont rov ert ed facts as t he tr i al cour t ' s det ermi nat i on of t hese f act s i s pr edi cat ed upon the wi t nesses' dem eanor and appearanc e when test i f yi ng. In conduct i ng a de novo

re vie w o f a se n te n ce , th is co u rt m u st co n sid e r (a ) a n y e vid e n ce re ce ive d a t th e tria l a nd/ or sent enci ng heari ng, (b) t he pres ent ence r eport ,(c ) t he pri nci pl es of

sent enci ng, (d) t he arguments

of c ounsel rel at ive t o sent enci ng al t ernat ives, (e) t

he natur e and char

act eri st i cs of th e offense, (f ) any m it igat ing or enhan

cing f actors, (g) any stat em

ents m ade b y th e accused i n hi s own behalf ,and (h) t he accused' s pot

ent i al or l ack of potent i al f or rehabi l i t at i on or t reat m ent
. Tenn. Code Ann. §§ 40-35- 103 and -210; Stat e v. Scott ,735 S.W.2d 825,829 (Tenn. Cri m . App.) , per . app . deni ed (Tenn. 1987). The part y chal l engi ng the sent

ences i m posed by t he tr i al

cour t has t he burden of

est abl i shi ng that t

he sent ences ar e erroneous. Sentenci ng Com

m i ssi on Com m ent s t o Tenn. Code A nn. § 40-35- 401; Ashby

,823 S.W.2d at

169; Butl er ,900 S.W.2d at 311. In t his case, t he de

fendant has the bu

rden of il lust rati ng the sen

tences impo sed by the tr ial court are err

oneo us. The defendant contends this court’s de novo review should be conducted without
a pres umption of correctness because the trial court failed to verbalize the presump tio n that a person who commits an Class E felony, as the defendant in thi s case, is presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (1997 Repl.). Of course, thi s presumption may be rebutted by evidence which establishes the defendant is not a favorable candidate for alternative sentencing. Id . Nevertheless, this court is of the opinion a presump tion of correctness should accom pany the de novo review in this case. While the trial court did not s pecifically mention the presumption of fitness for alternative se n tencing, it is clear on the face of the record the tri al court honored the5

presumption by granting the defendant an alternative senten ce, albeit a sentence involving sp lit confinement. The presumption does not equate to the su spension of the entire sentence imposed by a trial court or the serving of the entir e sente nce pursuant to the Commu nity Corre ctions Act. In the context of this case, the State of Tenness ee successfully rebutted the presumption in favor of an alternative sentence. The defendant
was indeed fortunate the trial c ourt tempered mercy with justice by sentencing her to serve only ninety (90) days in confinement withthe service of two (2) years pursuant to the Act. In this case, the trial court di d not abuse its discretion by requiring the defendant to
serve ninety (90) days in the Dyer County Jail. The record supports the trial court’s findings regarding the mitigating and enhancing factors. The court’s findings as to why the defendant should serve some ti me in confinement are li kewise supported by the rec ord.

____ ______________________________ ____ _ JOE B. JONES, PRESI DING JUDGE
CONCUR:

______________________________________ JERRY L. SM ITH, JUDGE

______________________________________ CURWOOD WITT , JUDGE