# FILED

April 22, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9706-CC- 00218 Appellee, * CROCKETT COU NTY VS. * Hon. Dick Jerman , Jr., Judge DANNY WALKER, * (Sale of Less than Point Fiv e Gram of Cocaine) Appellant. *

For Appellant : For Appellee : Joyce Diane Stoots John Knox Walkup Assistant Public Defender Attorney General and Repor ter 107 South Court Square Trenton, TN 38382 Janis L. Turner Assistant Attorney Gener al Tom Crider Criminal Justice Div ision Assistant Public Defender Cordell Hull Buildi ng, Second Floor 107 South Court Square 425 Fifth Avenue North Trenton, TN 38382 Nashville, TN 37243-0493 Clayburn Peeples District Attorney General 110 South College, Suite 200 Trenton, TN 38382 Larry Hardister Assistant District Attorney General 110 College Street, Suite 200 Trenton, TN 38382

OPINION FILED:__________________________
AFFIRMED; SENTENCE MODIFIED
GARY R. WADE, JUDGE2 OPINION The defendant, Danny W alker, entered a guilty plea to a sale of less than .5 gram of cocaine, a Clas s C felony. Tenn. Code Ann. § 39- 17-417. The trial court imposed a Range I, thr ee-year sentence to be ser ved in Community Corrections and ordered a fine of $1,000.00. Thereafter, the trial c ourt revoked the alternative sentence and or dered the defendant to serve a si x-year sentence. On direct appeal, this court reversed the order and r emanded the cause for another sentencing hearing because the trial court had failed to conduct a hearing and make specific findings of fact in accor dance with the Criminal Sentencing Reform Act of 1989. State v. Danny Walker , No. 02C01-9508-CC-00025 ( Tenn. Crim. App., at Jackson, Sept. 30, 1996). After r emand on the first appeal, the trial court reimposed a six-year sentenc

e, the maximum possible.
In this appeal of right, the defendant comp lains that the trial court imposed an excessive s entence. We modify the sentence to four years.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). See State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at3 the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

In calcul ating the sentenc e on a fel ony convict ion, the presump tive sentence is the minimum within the range if there are no e nhancement or mitigating factors. Tenn. Code Ann. § 40-35-210( c). If there are enhancement factors but no mitigating factors, the t rial court may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A s entence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement f actors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced withi n the range by any w eight assigned to the mitigating factors present. Id.

A failure to comply wi

th the terms of a Community Cor rections sentence may result in a r evocation. Tenn. Code Ann. § 40- 36-106(e)(3)(B). In such an event, the trial court must resentence the defendant and may order "any period of time up to the maximum sentence.. .." Tenn. Code Ann. § 40-36-106(e)(4); State v. Ervin , 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996). On r emand from the first appeal, neither the state nor the defense presented any ev idence. The trial court considered the contents of the presentence report, was informed that the defendant was on parole, and order ed a six-year senten ce.
The transcript of the revocation hearing indicates tha t the petition to4 revoke was filed based upon the defendant's positive drug screens, his adm itted use of cocaine on ly a little over a mont h after his guilty pl ea, and his ref usal to undergo in-patient treatment. The defenda nt, who was working 11:00 A.M. to 5:00 P.M. seven days per week

had not performed community serv ice as required, "because I worked on Sundays," ev en though his probation officer had suggested two hours of community service i n the mornings before his w ork began. At the conclusi on of the hearing, the trial court characterized the defendant's attitude as " sorry." This record confirms that there was a factual basis for that conclusion . The trial court also determined that the defendant had viol ated the terms of his agreement.

After hearing brief comments from couns el at the resentencing hearing, the trial court ruled as follows:

I'm going to consider the evidence, the Pre-Sentence Report that was filed, the sentencing principles, all arguments of counsel, the nature an d character of the offense, any mitigating and enhan cement factors, any statements made by the defendant, and any potential for rehabilitation or treatment and accordingly, after g iving this matter consideration for all those factors, I find he has violated the terms of Cor rections Management and I resentence him to serve s ix years in the st ate penitentiary as a Rang e I standard offender.... [I] am going to order him to the custody of the sheriff. I am going to let him go back through the parole process. He can report to the sheriff. I don't see how they can parole him on a senten ce that he didn 't have. He'll have to go back through the process. You can appeal it again.
The presumption of correctness on any sentence is, in the wor ds of our supreme court, "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principl es and all relevant facts a nd circumstances." Ashby , 823 S.W.2d at 169. While the trial court made reference to having done so, the specific findings were not made on the record and do not appear in the judgment form. Becaus e the findings of facts and conclusi ons of law5 contemplated by both the legi slature and the rulings of our supreme court have not been made, our review must be de novo .

The state's brief is of little assistance. There is no attem pt to address the purposes of the 1989 Act. Tenn. Code A nn. § 40-35-102. No effort was made to review the appli cable sentencing consider ations. Tenn. Code Ann. § 40-35-103. No specific argument was made as to the existence of any of the enumerated enhancement factors. Tenn. Code Ann. §§ 40- 35-114(1)-(21).
The presentence report does indicate that the de fendant, thirty-six years of age, was convicted of public intoxication in 1991 and simple assault in 1992. While there is no indication th e defendant was incarcerated for either, at least one enhancement factor is present becau se the defendant did have a prev ious history of criminal con

victions. Tenn. Code Ann. § 40-35-114(1).
The report also indicates that the defendant completed the twelfth grade, ha d full-ti me gainf ul emplo yment at t he time o f the revo cation, and has two children, both of whom were born out of wedlock. The defen dant pays child support weekly and has wor

ked as a laborer, a forklift oper ator, and a machine operator during his adult life. The de fendant conceded that he had used cocaine from 1 990 through 1994 but otherwis e had no health problems.
A primary purpose of the 1989 Act is to ensure that every sentence is justly deserved i n relation to the seriousnes s of the offense. Fair and consistent treatment is paramount. Confinement i s appropriate, as in this case, when measures less restrictive have been unsuccessful . The potential for rehabilitati on or treatment is an important consideration. All sentences sho uld be "the least severe6 measure necessary to achi eve the purposes of a sentence." Tenn.Code Ann. § 40- 35-103.

That the defendant used cocaine after his co nviction and failed drug screens justifies not only the revocation of the terms of release bu t also a sentence of confinement. When taken into consideration with the other enhancement factor present, the defendant merits a greater sentence than the minimum. Of course it is far better for the trial judg e, who sees and hears the w itnesses firsthand, to make an assessment as to the appropriate sentence. But the time must be taken to place the underlying ratio nale for the sentence in the recor d so that there is the opportunity for an informed appellate review. Had those reasons bee n specifically set out in this case, it may be that this court woul d have agreed with the six-year maximum. The limited record be fore us, in our view,would warrant a l esser sentence. In our view , a term of four years woul d meet the purposes of the Act.

Accordingly, the j udgment is so modified.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Joe B. Jones, Presiding J udge

_____________________________ Jerry L. Smith, Judge