# FILED
March 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9701- CR-00035 Appellee, ) ) Shelby County V. ) ) Honorable Arth ur Bennett, Ju dge ) ANTONIO S. M OORE, ) (Sentencing) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: J. C. McLin John Knox Walkup Attorney at Law Attorney General & Reporter 301 Washington Ave., Suite 201 Memphis, TN 38103 Georgia Blythe Felner Counsel for the State Lee Wilson Criminal Justice Div ision Attorney at Law 450 James Robertson Parkwa y 200 Jefferson Nashville, TN 37243-0493 Memphis, TN 38103 (At Trial) William L. Gibbons District Attorney General Perry Hayes Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILED: ___________________
MODIFIED
PAUL G. SUMM ERS, Judge

O P I N I O N1 The judgment sheet and transcri pt conflict on the exact sentence. We view the transcript as controlling. W e view this as a thre e-year split sentenc e. State v. Moore , 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). -2- Antonio Moore, the appellant, pl ed guilty to possessi on of cocaine with intent to sell in an amount les s than one-half of a gram. The appellant agreed to a three-year sentence, with the court to determine whether the appellant shou ld receive probation. The cour t ordered the appellant to ser ve eleven months twenty-nine days in jail followed by two years of community corrections. 1 Appellant appeals, and the sole issue for our review is whether the court should have grant ed the ap pellant full prob ation. He requests a noninca rcerative alternative sentence.
The appellant was a passenger in a vehicle that w

as stopped for speeding by the police. The police officer observed a plastic bag on the floor of the vehicle which contained approx imately fourteen grams of cra ck cocaine. The appellant testified that he purchased the coc aine to sell because he needed q uick money to buy an air conditioni ng machine for use in his w ork. The appellant testified that this was the first time that he had purchased cocaine an d that someone was going to help him sell it.
The appellant is a first time offender w ho pled guilty to a Cl ass C felony. He is presumed, absent evi dence to the contrary, to be a favorable candidate for alternative sentencing

options. Tenn. Code Ann. § 40-35-1 02(5) & (6) (Supp. 1995). The appellant was sent enced to split confinement, an alter native to straight c onfine ment. Th e appella nt conte nds, howe ver, that h e should have been granted full probation. The appellant is eligible for probation. Tenn. Code Ann. § 40-35-303(a) (Supp. 1994)

.-3- When an appellant cha llenges the manner of service of a sentence, this Court reviews th e evidence de novo with a presumption that the determinations of the trial court are corr ect. Tenn. Code Ann. § 40-35-401(d) (1990). The presumption of correctness is conditioned upon an affirmative sho wing that the trial court considered the sentencing principl es and all relevant facts a nd circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Our review consists of an analysis of the evidence at the sentencing hearing, the presentence report, the prin ciples of sentencing, the ar guments of counsel, the nature and characteristics of the offen se, mitigating and enhancement factors, the defendant’s statements and the defendant’s po tential for rehabilitation o r treatment. Tenn. Code Ann. §§ 40-35-102 (Supp. 1994),-103(1990),-210 (Supp. 1992); Ashby , 823 S.W.2d at 169.
When deciding a defen dant’s suitability for probation, the trial court should consider the accused’s cr iminal record, social h istory, present phy sical and mental condition, the nature and circumstances of the offense, the deterrent effect on others, and the defendant’s potential for rehabilitation. Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974). A sentence of confinement must be bas ed upon the following considerations: (1) confinement is necessa ry to protect society by restr

aining a defendant who has a l ong history of criminal conduct; (2) confinement is necessary to av oid depreciating the ser iousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit simi lar offenses; or (3) measures l ess restrictive th an confinement have frequently or recently been applied unsu ccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1) (A),(B) & (C) (1990).
The appellant is twenty-three years old. He has no criminal record. He graduated from high school and attended Kansas Vocational Technical-4- Institution and the Climate C ontrol Institution. The appell ant has a universal technician’s license i n heating and air condition ing. The appellant has been employed in this field by Harold Robinson for over two years. Mr.Robinson testified that the appellant w orks anywhere from ten t o fifty hours a week depending on the time of year. Mr. Robinson testified that the appellant was a dependable employee, and he woul d continue to employ the appell ant if he was granted probation. The appellant also works at the Cr

owne Plaza Hotel doin g maintena nce and a ir cond itioni ng wor k. He te stified that he w

orks a t otal of between fifty and eighty hours per week.
The appellant lives wi

th his mother, grandfather, and g randmother. The appellant’s mother and grandfather testified that he had not caused any problems before this offense and that he w as obedient to them. They testified that the appellant was remor seful about committing the offense. They testified that if he was granted pro bation, they would do al l that they could to help hi m. The appellant assists his family financially.
The appellant admitted to smoking marijuana since he was arrested in this case. The presentence report i ndicates that the appellant w as charged with a drug offense involving

cocaine when he was a juvenile. This charg e was not mentioned at the sentencing hearing. The state, the appellant, and the court agreed that the appellant had no c riminal history.
The trial judge denied probation based on the appe llant’s untruthfulness, the nature of the offense, deterrence, and the av oidance of depreciating the seriousness of the offense. W e are acutely aware that issues of credibility rest with trial court; however, we find that the evidence preponderates against the weight placed on this factor by the court. The trial court did not believe that this-5- was the first time that the appellant had purchased cocaine. The court said that it was unreasonable that a first time buyer woul d purchase that much cocaine without knowing w

hether he could sell it or not. The court also cited the appellant’s testimony that he was going to thr ow the cocaine away

because he thought that it was no good. Throughout the proceeding s against him, and repeatedly at the sentencing hearing, the appellant admitt ed that he purchased the cocaine with the intent of selling it. He tes tified to how and from whom he purchased the cocaine. The appell ant was clearly t ruthful about his guilt. F rom our review of the entir

e record, we conclude th at untruthfulness is not a factor upon which to deny a nonin carcerative sentence i n this case.
The court expressed concer n about whether a sentence of probation would have a deterrent effect on “large dope dealers.” There is an element of deterrence in every

criminal case. State v. Bonestel , 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993). “Before a trial court can deny

probation on the ground of deterrence, there must be some ev idence contained in the recor d that ‘the sentence imposed will have a deterrent effect within the jurisdiction.’” Id. (citation omitted); see State v. Ashby , 823 S.W.2d 166, 170 (Tenn. 1991) (“[t]he finding of deterrence cannot be conc lusory only but must be supported by proof.”). There is no evidence in the record that sentencing the appe llant to full imprisonment will deter others in his community from selling cocaine. As stated by the trial court, cocaine use is a serious problem in all communities. However, absent specific evidence i n the record, we must be co ntent that the serious nature of drug offenses and the need for deterr ence is reflected in the sentenc es and policies expressed by the legislature in the Criminal Sentencing Reform Act of 1989.-6- The trial court was al so concerned about the nature of the offense and depreciation of the seriousness of the offense. In short, the court stat ed “The sale of cocaine is too seriou s in all communities...to tu rn your back on a person who has a large amount for sale. That’s when you need to do some time.” When addressing the nature or seriousness of the offense, we are considering whether incarceration

is necessary to av

oid depreciating the ser iousness of the offense. See State v. Zeolia , 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996).

The nature and seriousness of the offense is but one of a number of considerations that must gui de the court in determining whether to grant probation. State v. Byrd , 861 S.W.2d 377, 38 0 (Tenn. Crim. App. 1993). Before the nature of the offense alone warrants a probation denial, the act must be "especially viole nt, horrifying, shock ing, reprehensible, offensiv e, or otherwise of an excessive or ex

aggerated degree," and the nature must outweigh all other factors. Id. (citing State v. Travis , 622 S.W.2d 529, 53 4 (Tenn.1981)). While the amount of cocaine in the appellant’ s possession was subst antial, he has no criminal record; he has an education; his employment his tory is steady and productive; his home environment is stable; he has a good relationship with his family; and he has no notable social, physical, or mental conditions which would bear upon his probation suitabi lity. Thus, we concl ude that the nature of the offense alone does not support the judge's decision. See State v. Cummin gs , 868 S.W.2d 661 (Tenn. Crim. App. 1992); State v. Ashby , 823 S.W.2d 166 (Tenn. Crim. App. 1991).
Despite the assistant di strict attorney’s c omparison of the appellant to Jeffrey Dahmer in closing argument, the appellant does not fit the profile of the criminal for whom incar ceration is the "first pri ority" as provided in Tennessee Code Annotated § 40-35-102(5). N or has he been the subject of failed-7- rehabilitative measures . The appellant's criminal conduct is nonviolent, and he shows good potential for r ehabilitation. The appellant meets all the minimum criteria of eligibil ity for punishment in a communit y-based alternative program. Such punishment is not exactl y what either side requests, but it fits the appellant’s life record and offense.
The judgment of the trial court i s modified; the appellant is senten ced to three years under the super vision of the Community C orrections Department. Such a sentence will give the appellant the opportunity to prove himself. If he is not successful, he may wi sh that he had served his or iginal sentence and not requested an alternativ e.

_____________________________

PAUL G. SUMMERS, Ju dge
CONCUR:

_____________________________ DAVID G. HAYES, Jud ge-8- _____________________________ JOE G. RILEY, Judge