### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Marc h 4, 200 8
STA TE OF TEN NES SEE v. SA MU EL M cA LISTER
Appeal from t he Circuit Court for M adison County Nos. 05-228 & 05- 493 Donald H . Allen, Jud ge

No. W2007-01242-C CA-R 3-CD - Filed Augu st 12, 2008

The de fendant, Samuel McAlister, pled guil t y in case number 05-228 to two c ounts of sale or de li v e ry o f c o c a in e , Cl a s s C f e lo n ie s , a n d o n e c o u n t o f s a le o r d e li v e r y o f mo r e than .5 gra m of
cocaine, a Class B felony. In c ase numbe r 05-493, the defendant pled guilty to an additional count of sale or delivery of

more than .5 gr am of c ocaine , one count of possession of dr ug para pherna lia, a Class A misdemeanor , and one c ount of possession of a we apon wi t h i n t ent t o employ it in an offe nse, a Class E fe lon y . In exc hange f or his guilty pleas, the defe ndant re ceive d an ef fec tive sentenc e of e ight years to be se rved unde r community corr ections s u p er v i s ion. The trial court subsequently re voked the c ommunity correc tions sentences and rese ntence d the defendant to an eff ective se ntence of twelve year s in the custody of the De partment of Corr ection. In this appe al as of right, the def

endant c ontends that the Madison County Circuit Court im po sed an e xcessive
se nte nc e . Fo llo wi ng ou r r e vie w, we a ff ir m th e jud gme nts of

the tria l c ou rt

. Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Circ uit Court are Affir med.

D. K EL LY T HOMAS , J R ., J., delivere d the opi nion of t he court, in which T H O M A S T. W OOD ALL and N OR MA M C G EE O GLE , JJ., joined.

Ge or ge Mo rt on Go og e , D ist ri c t Pu bli c De fe nd e r; a ndGr e go ry D. Go okin, As sis ta nt P ub lic Def ender , attorneys f

or appe llant, Samuel McAlister.

Rob e rt E. Coo pe r, Jr ., Attor

ne y G e ne ra l & Re po rt e r; Sop hia S. L e e , A ssi stant Att orne y G e ne ra l; James G. W oodall, District Atto rn ey Ge n eral; and Shaun A. Brown, Assistant District Attorney Gene ral, attorneys for a

ppellee, State of

Tenne ssee.
OP IN ION

The re cord r efle cts that on July 25, 2005, the defe ndant enter ed guilty pleas in ca se number 05 -2 88 fo r of

fe ns e s that oc c ur

re d in Ju ly 20 04 . O n N ov e mbe r 2 1, 20 05 , th e de fe nd a nt e nte re d g uil ty pleas in ca se number 05- 493 to the additional offe nses that occ urre d in May 2005. Ultimately for all o f t h es e o ff

enses, the de fendant rec eived an eff ective se ntenceof eight yea rs to be served onThe r ec or d r ef l ec t s t hat a n e ar l i er pr obat i on vi ol at i on w ar r ant i s s ued on Se pt em ber 6, 2006, a l l egi ng t hat t he 1 d efen d an t ha d viol at ed his co m m u n i t y co rr ect i o n s se n t en ce b y his Sep t em b er 5, 2 0 0 6 , arr est for at t em p t ed m u rder, aggr ava t ed r obber y, a nd e vadi ng a r r es t

. O n D ec em ber 15, 2006, t he t r i al c our t di s m i s s ed t he w ar r ant due t o t he gr and j ur y’ s re t ur n of a no t r ue bi l l on t he c har ges and fa i l ur e t o s ec ur e t he a l l ege d vi ct i m ’ s a t t enda nce a t s che dul ed r evoc at i on h ea ring s.

-2- community corre ctions. On Marc h 20, 2007, a probation revoc ation war rant issued a lleging that the defe ndant violated his community corre ctions sentence s by failing to remain drug f ree afte r a dr

ug sc re e n r e ve a le d e vid e nc e of mari juana us e

. A sup e rc e din g w arr a nt i ssu e d o n M arc h 2 6, 20 07 , w ith additional allegations that the de fendant failed to make monthly payments toward court costs and failed to c omplete court-order ed community service

. At the April 2, 2007, revoc ation hearing the 1 de fe nd a nt a dmi tte d to a ll of the a lle ge d vio la tio ns , a nd the tria l c ou rt re vo ke d the co mmu nity c or re c tio ns se nte nc e s.
The twe nty-seven-yea

r-old def endant testified that he had only used ma rijuana onc e – the time that he tested positive leading to the r evocation warrant. He expla ined that he only smoked the marijuana beca

use he was depressed about his mother’s failing health. He a lso explained that he had not performed his community service work because “[t]he way I figured it is I had eight yea rs. I ha d a per iod of over e ig h t y e ar s to d o it

. I d id n ’ t ju s t e x a c tl y k n o w th a t y o u h a d to d o it o f f th e to p. I did n ’ tk n o w t h a t

. ” T h e d e f e n d a n ta d d e d t h a th e w a s n o w p r e p ar e d t o c o m p l e t e h i s c o m m u n i ty service hours “[ a]s quick as p o s s i ble.” He testified that he ha d maintained employment with the same logging company for seve ral ye ars but that much of his income went to support his five children. H e stated that he lived with his mother who was ill and who relied upon him to take her to doc tor appointments. The defe ndant reported that his employer had of fer ed him additional work to help him pay his fines and c osts if the court chose to place him bac k on probation.

On c ro ss- e xa min a tio n, the de fe nd a nt a dmi tte d th a t he wa s b e hin d o n c hil d s up po rt payme nts but had gotten caught up w ith the help of family and friends. He explained that his work with the logging company often depende d upon the weather, but that his employer had pr omised him work in the saw mill when we ather preve nted hi m from working in the field. When que stioned by the trial court a bout his recollec tion that his communi ty corre ctions sentence require d the per formanc e of eight hours of community service eac h month, the defendant claimed to have f orgotten that aspe ct of his c ommun ity c or

re c tio ns ob lig a tio ns

. Th e de fe nd a nt’ s mo the r, Ma rg are t Mc Al ist e r, te sti fi e d that sh e ne e ds he r s on a t ho me wi th her be cause she is sick and he helps ca re for her. She stated that she assisted him in paying his court costs beca

use his work ha d been spor adic due to the weather. She urged the trial court to plac e the defe ndant on probation so that he could ca re f or her and his five c hildren.

Thomas Har din, the defe ndant’s girlfriend’s father, testified that the defe ndant works ha rd to provide for

his mother and children. He a dded that the de fendant had exe rcised poor judgment in the people he associate d with and th at , although he wa s twenty-seve n year s old, the defe ndant
rea lly does not have the intelligenc e of a twenty-seve n year

old.-3-

Jennifer Har din, the defe ndant’s girlfriend and mother of his fifth c hild, testified that she has known the def

endant f or ele ven or twe lve yea

rs. Sh e stated that the de fendant sees his son every day. She testified that she does not work and relies on the de fendant completely for f inancial
su pp ort. Beverly Butler, the defe ndant’s aunt, testified t hat s he had done a lot to help the def endant get caught up on his financial obligations. She stated t hat he needed to be on probation so that he
c ou ld p a y h e r b a c k s ome of the mon e y s he ha d lo a ne d him

. She a c kn ow le dg e d th a t sh e he lpe d h im in the past and that it was now “ time for him to straighten up and gr ow up and a ct like a man.”

At the c on c lus ionof

the se nte nc ing he aring , th e tr ia l c ou rt re se nte nc e d th e de fe nd a nt t o twelve ye ars for each sale or delivery of m ore than .5 gram of cocaine offe nse and six yea rs for e ach sale or delivery of less than .5 gra m cocaine offe nse base d upon its findings t hat the def endant ha d a pre vious history of criminal convictions and an unwillingness to comply with conditions of a sentenc e involving rele ase into the communi ty. Tenn. Code Ann. § 40-35-114 (2) and (9) (2003). Th e tr ia l c ou rt

c on sid e re d th e de fe nd a nt’ s a dmi ssi on s at th e re vo c a tio n h e ari ng a s e vid e nc e of his unwilling n e s s to c o mp ly w ith c o n d it io n s o f r e le a s e

. T h e tria l c o u r t c o n s id e r e d a le tt e r b y the defe ndant asking for

another chanc e and stated:
You know, [the defe ndant] got his chanc e bac k i n July of ‘05 whe n I put him on Communi ty Correc tions supervision, and then he got anothe r chance in his sec ond
case , which is 05-493, which involved [ the] sell of c ocaine

. He p l ed g u ilty in t hat
case November

the 21 of 2005 and a s part o f t h e plea agre ement, he r ece ived

st
c on c ur re nt s e nte nc e s. So, he ’s be e n g iv en a couple of c ha nc e s at Co mmu nity Correc tions supervision, but unfor t unately for Mr. McAlister, [ he] ha s not taken advanta ge of the opportunity. As mitigation, t he trial court c onsidered the defe ndant’s consistent wor k history, but the trial court further commented that the de fendant “had the a bility t o pay on his fines a nd court c osts each and
every month as he wa s order ed to do, but unfortunate ly [the defendant] chose to spend his money elsewhe re

. . . I don’t understand that, Mr. McAlister. You could have donethis.” The trial c ourt order ed the se ntence s to be served concurre ntly in the custody of the De partment of Corr ection. The defe ndant now appe als this sentencing dete rmination.

ANALY SIS Standard of Review An appe llate cour

t’s revie w of sentenc ing is de novo on the rec ord with a pre sumption t hat the trial cour

t’s deter minations ar e co rr ect. Te nn. Code Ann. § 40-35- 401(d) ( 2003). As the SentencingCommi ssion Com ments to this s ection note, o n ap peal the bur den is on the def endant to show that t h e sentenc e is improper. This mea ns that if the trial cour

t followed the statutory sentenc ing pr ocedur e, made finding s o f fa ct t hat ar e ade quately supported in the re cord, a nd g ave due conside ration and pr oper w eig ht to the fac tors and pr i n ciples that ar e re levant to sentenc ing-4-

under the 1989 Sentencing Act, the c ourt may not disturb the sentence even if a diffe rent re sult were pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

. Ho we ve r, “ the pres um pt ion of c or re c tne ss whic h a c c omp anie s th e tr ia l c ourt ’s a c tio n is conditioned upon t he af

firmative showingin the rec ord that the trial c ourt consider ed the se ntencing principles and a ll releva

nt fac ts and circ umstances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). In this respec t, for the pur pose of mea

ningf ul appellate r eview,
[T] he trial c o urt m

u s t p la c e o nth e r e c o r d

it s r e a s o n s f

o r ar r iv in g a t t

h e f in al sentenc ing de cision, identify the mitigating and enhance ment fac tors found, state the specific fa ct s s u pporting eac h enhanc ement fa ctor found, a nd articulate how the mitigatingand enha

ncem e nt f a c to r s h a v e b e en eva luated and ba lance d in determining the sentenc e. State v. Jones, 883 S.W.2d 597, 599 (Te nn. 1994) (citation omitted); see Tenn. C ode Ann. § 40-35- 210(e) (2003). The we i gh t t o b e af forde d an enha

nceme nt or mitigatingfac tor is left to the trial court’s discr etion so long a s its use complies with the purposes and principles of the 1989 Sentencing Act and the court’s finding s are adequately supported by the rec ord. I d. § (d)- (f) ; State v. Moss, 727 S.W .2d 229, 237 (Tenn. 1986) ; see Ashby , 823 S.W .2d at 169.

In c o n d u c t i n g i t s d e n o v o r e v i e w , th e a p p e l l a t e c o urtmu s tc o n s i d e r ( 1 ) th e e v i d e n c e , i f

an y, rec eived at the trial and sente ncinghear ing, ( 2) the pre senten ce re p o rt , (3) the pr inciples of senten ci n g and arg uments as to sentenc ing a lternatives, ( 4) the nature a nd char acte ristics of the criminal conduc t, (5) any m i t i g ating or statutory enhanc ement fa ctors, (6) any statement that the defe ndant made on his own be half, a nd (7) the potential for re habilitation or treatment. Te nn. Code Ann. §§ 40-35-102, - 103, -210 (2003) ; see Ashby , 823 S.W .2d at 168; Moss, 727 S.W .2d at 236-37.

In h is b ri e f, the de fe nd ant a c kn ow le dg e s th e tr ia l c ourt ’s a uth orit y to re vo ke a

c omm un ity
c or re c tio ns se nte nc e and

re se nte nc e a de fe nd ant wi thi n the statut or y ra ng e a pp lic a ble to t he of fe ns e s. Tenn. Code Ann. § 40-36-106( e)( 4). Howeve r, he contends that the trial court’s application of the enhanc ement factors does not support an imposition of the max imum effec tive sentenc e of twe lve y ear s. He argues that his pr ior criminal history was not ser ious, consisting only of convic tions for various tra ffic of

fense s, one simple assault and one vandalism. He f urther a rgues that, althoug h he did violate t h e t er m s o f hi s community corr ections sentenc e, “the trial court should only have aff orded this fa ctor slig ht weig ht in re-se ntencing ” the de fenda nt. The def

endant a lso argues that the trial court should have g iven more c onsideration to his history of providing for his g irlfriend a nd children as mitigation. The state contends that the rec ord fully supports the trial cour

t’s finding s and deter mination of sentence in this case. F ollowing our revie w, we a g ree with the state.
W iththe e ntry o f the gu ilt y p le a , th e tr ia l cour t allo we d th e de fe nd a nt the op po rtun ity to d em o n s t ra te to the court his appare nt intelligence and a bility t o lead a

responsible life. T he defe ndant fa iled to c omply with the most ba sic conditions of his c ommunity cor rec tions sentence; the se c on dit ion s, by his ow n a dmi ssi on s, we re e xp la ine d ful ly at the gu ilt y ple a su bmi ssi on he ari ng s. The de fendant candidly admitted t o the violations at the revoc ation hearing. Only after beingW e do not e t hat t he j udgm ent f or s al e or de l i ver y of m or e t han

. 5 gr am of

c oca i ne i n c as e num ber 05- 228 2

erron eo u sl y no t es t h e o ff en se as a C l ass C fel o n y
. Inst ead i t s h o u l d refl ect a C l ass B fel o n y co n v i ct i o n

. T h e t ri al co u rt
s houl d c or r ec t t he j udgm ent t o r ef l ec t t he ac cur at e f el ony c l as s i fi ca t i on upon r em and.

-5- revoke d did the defe ndant expre ss a desire to c omply with the conditions. F urthermor e, the e vidence does not support the application of the defe ndant’s propose d mitigating factor re garding his financ ial support of his children. Rathe r, the testimony at the sentenc ing hearing reve aled a defe ndant who has bee n remiss in supporting at l east four of his children, de spite an appa rent stea dy work history, and who ha s relied upon the a ssistance of f am i l y m em b ers to pay c hild support, as well as court costs. S i m p l y p ut, the defe ndant waste d the opportunity prese nted by the plea agre ement. We cannot c onclude that the trial court a bused its discretion in its application of enha n ce m en t fac tors and impos i t i o n o f s en t ence s in this case. On the c ontrary, the rec ord supports the enhanceme nt fa c tor s a pp lie d b y th e tr ia l c ou rt

a ndfu rthe r e sta

bli sh e s that th e tria l c ou rt fo llo we d th e app lic able sentenc ing considerations. The judgment of the trial court is affirmed. 2

CONCL USI ON Upon consider ation of the for eg oing and t he record as a whole, the judg ment of the trial c ourt is affirme d.

___________________________________ D. KEL L Y THOMAS, JR ., J UDGE