# FILED December 4, 2001 Cecil Crowson, Jr

. Appellate Court Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON AUGUST 1996 SESSION

STATE OF TENNESSEE, ) NO. 02C01-9509- CC-00261 ) Appellee ) HENR Y COU NTY ) V. ) HON. JULIAN P. GUINN, JUDGE ) MICHAEL AN THONY PIKE ) (Sente ncing) ) Appellant ) )

FOR THE APPELLANT FOR THE APPELLEE Barton F. Robi son Charles W. Burson 104 West W ashington Str eet Attorney Gen eral and Repor ter Paris, Tennessee 38242 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0493 Michelle L. Lehman Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0493 Robert Radford Distric t Attorney General Vicki Snyder Assistant District Attorney General P.O. Box 686 Huntingdon, Tennes see 38344

OPINION FILE D:______

AFFIRMED

W illiam M. B arker, Ju dge2 Opinion The Appellant, Mi chael Anthony Pike, appeals as of right hi s sentences for simple possess ion of marijuana, po ssession of marijuana with intent to sel l, and possession of dru g paraphernal ia. He arg ues on appeal that t he trial ju dge erred by not placing him in community correctio ns or, in the alternative, by not g iving him the mini mum stat utor y sent ence s. Af ter a care ful review o f th e rec ord o n app eal, we affirm the trial court’s judg ment. On November 14, 1994, the Appell ant was ar rested after attempti ng to make a marijuana purchase f rom undercover police off icers. After the arrest, the police officers obtained a s earch war rant for the Appell ant’s hotel r oom and found another quantity of marijuana and r

olling paper

s. On May

22, 1995, the Appell ant pled guil ty to all charges. After a sentencing hearing, the trial judge sen tenced him to two years conf inem ent f or po sses sion of m ariju ana with in tent to se ll, el even mon ths a nd twe ntynine days for both simple poss ession of mariju ana and possessi on of drug para phe rnal ia, a ll sen tenc es to be se rved c oncu rren tly. When an Appellant complains of his or her sentence, we must conduct a de

novo review

with a pr

esumption of correc

tness. Tenn. Code Ann. § 40-35-401( d) (1990). The burde n of showing that the sentence is improper is upon the appeal ing party. Id. Sentencing Commission Comm ents. This presumption , however, is conditioned upon an affirmative show ing in the r ecord that the tr ial court considered the sentencing principles and all rel evant facts and c ircumstances. State v. Ash by , 823 S.W .2d 166, 169 (Tenn . 1991). The Appe llan t fir st co nten ds th at th e tria l judg e sho uld h ave or dere d alt erna tive sentencing by

placing hi m in community corrections . This issue is wit hout merit. The Appellant arg ues that he should have recei ved alternative sentenc ing beca use a s a Cla ss E f elon he is p resu med a fa vorab le ca ndid ate f or alt erna tive sentencing. See Tenn. Code Ann. 40-3 5-103(b) (19 90). He further contends that alternative sentencing is appropri ate because he has t estified in front of a federal3

grand jury

trying to crack dow n on a drug r ing and becaus e he is the sol e provider for his children. The trial judg e, however, opined that p lacing the Appellant in community corrections

would depreciate the ser iousness of his offenses. See Tenn. Code Ann. § 40-35-103 (1) (B) (1990). Regardi ng the grand jury t estimony, thetrial judg e found that the Appellant

failed to show

that any in dictments had been ha nded down or any arrests made as

a result of his

testimony. However, the tria l judge st ated that if the Appellant could show that t he testimony resulted in a ny indict ments or conv ictions, the trial judg e would cons ider suspendi ng the Appell ant’s sentences . Moreover, the tria l judge found that an or

der of alternati ve sentenci ng would not be in the best interest of justice, the public, or t he Appellant hims elf and that the Appell ant should have thought about his chil dren before dealingin drugs. According ly, the tr ial judge declined to find the A ppe llan t a goo d can dida te f or co mmu nity co rrect ions or an y othe r type alte rnat ive sentencing. We agree. The Appellant’s s econd contention i s that the tri al judge er red when he d id not give theAppellant the mi nimum sentence for poss ession of mariju ana with i ntent to sell. This i ssue is als o without mer it. When determining the length of a sentence, the tr ial judge shall start at the minimum sentence, i ncrease it considering appropriate enh ancement factors, and decrease it considering appropriate mi tigating factors. Tenn. Cod e Ann. § 40-35-210 (Supp. 1995). At the sentencing hearing, the trial judge fo und that the Appellan t has a substantial pr

evious history of both cr iminal conv ictions and c riminal behav ior. See Tenn. Code Ann. § 4 0-35-114(1) (Supp.1995 ). The record supports the trial judge’s findings in t hat regard. The Appellant the n offered two mitigating fact ors. First, that his “conduct neither caused nor threatened s erious bodil y injur y” and second, that he has been assisting the police i n uncoveri ng other cr iminal activ ity. Tenn. C ode Ann. § 40-35-4

113(1), (9) (1990). The tr ial judge did not give either miti gating factor much weig ht. See State v. M ann , No. 02C01-950 4-CC-00101 (Tenn. Crim. App., Jackson, Oct. 18, 1995), permiss

ion to appeal deni

ed (April 1, 1996) (stating that the serious bodily injury mitigating factor has little weight when the sale of drugs to the public is involved); State v. Keel , 882 S.W.2d 410 (Tenn. Crim. App. 199 4) (sugg esting that when an appell ant tries to assist the pol ice in uncovering cr iminal activ ity and the assistance bear

s no fruit, the r

equirements of mi tigating factor number nine are not fulfilled). Co nsidering both enhancing and mitigati ng factors, thetrial judg e ruled that the enhancement factor far outweigh ed the mitigat ing factors a nd enhanced the Appellant’s sentence f rom one year to two years. We f ind no abuse of the tr ial court’ s discreti on. According ly, we affirm the Appellant’s s entences.

__________________________ WILLIAM M. BARKER, JUDG E CONCUR:

__________________________ GARY R. WADE, JUDGE

__________________________ JERRY L. SMITH, JUDG E