# FILED
March 18, 1999 Cecil W. Crowson Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF TENNESSE E

AT NASHVILLE DECEMBER 1998 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9801-CR-00046

) ) Davidson County v. ) ) Honorable Seth Norman, Judge ) KENNETH B. WILLIAMS, ) (Sale of less than one-half gram of ) cocaine) ) Appellant. ) For the Appellant : For the Appellee : Thomas H. Miller John Knox Walkup P.O. Box 681662 Attorney General of Tennessee Franklin, TN 37068-1662 and Georgia Blythe Felner Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney Gener al and Jon Seaborg Assistant District A

ttorney General Washington Square, Ste. 500 222 2nd Ave. N. Nashville, TN 37201-1649

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Kenneth B. Williams, appeals as of right following his conviction upon a guilty plea to the sale of less than one-half gram of coca ine, a Class C felony. The defendant agreed to a three-year sentence, with the manner of service to be determined by the trial court following a sentenci ng hearing. Following the h earing, the trial court ordered t he defendant to serve the three year s in the custody of the Davidson County Jail. T he defendant now contends that the tr ial court erred by not ordering an alternative to incarceration. We affi rm the decision of the tr ial court.
The defendant entered his guilty plea on March 28, 1996, and a sentencing hearing was schedul ed for May 1, 1996. The defendant failed to appear at the hearing, and a capias was issued. The defendant was not apprehended until November 15, 1997, after an off icer stopped him for dri ving with a broken headlight and discovered the capias. The sentencing hearing was held on January 21, 1998.

At the hearing, the defendant explai ned that he did not show up for the first sentencing hearing bec ause he made an honest mistake. He said he thought the hearing was scheduled for M ay 10, not May 1, because there was an “@” symbol that looked like a “0" following the “1" on the slip of paper with the court date on it. He said he learned of his mistake on May 8 when he called his attorney to reassure him that he would be in court on May 10. He testified that he had com pleted two years of college and had an eight-year-old son w hom he saw at least once or twice each week and for whom he paid child support of fifty or sixty doll ars per week. He testified that he attended treatment for his cocaine addiction and that he had not used cocaine since his arrest.3 On cross-examination, t he defendant admitted that when he sp oke with his attorney on May 8, the attorney told him to surrender to the police. He said he did not turn himself in becaus e he knew his bond was high, and he could not afford to make bond. He said he attended N arcotics Anonymous meeti ngs a couple of times each week for about three months following his arrest. He said he also ended his previous “associations. ” He admitted that in Febr uary 1995, he pled guilty to pas sing a worthless check and received six months on probation. He also admitted that five months later, he was arrested for theft and pled guilty. Although the presentence report indicated that his probation for the worthless check conviction was revoked, t he defendant initially testified that he knew nothing abou t the revoked probation. However, he later agreed that it probabl y was revoked because of the ar rest for theft.
Linda Head, the office manager for Top of the Line, testifi ed that the defendant worked as a banquet serv er for about four years and t hat he earned ten dollars per hour. She sai d the defendant was a very good, pr ofessional employee, and he would have a job with Top of the Line if not sentenced to i ncarceration.

Appellate review of sentencing is de novo on the record with a presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As the Sentencing Commission Comments to this secti on note, the burden is now on the defendant to show that the sentence is improper. This means that if the trial court followed the statutory sentencing procedure, made finding s of fact that are adequately supported in the record, and gave due consideration an d proper weight to the factors and principles that are r elevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result wer e preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).4 However, “the presumpti on of correctness which ac companies the trial court's action is condit ioned upon the affirmative s howing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991) . In this respect, for th e purpose of meaningful appellate review ,

the trial court must plac e on the record its reasons for arriving at the final sentencing decisi on, identify the mitigati ng an d enhancementfactors found, state the specific facts supporting each enhancement factor found, and artic ul ate how the mitigating and enhancement factors have been e valuated and balanced in determining the sentence. T.C.A. § 40-35-210 (f) (1990). State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1995).

Also, in conducting a de novo review, we must consi der (1) the evidence, if any, received at the tr ial and sentencing hearing, ( 2) the presentence report, ( 3) the principles of sentencing and arguments as to sentencing altern atives, (4) the nature and characteristics of t he criminal conduct, (5 ) any mitigating or sta

tutory enhancement factors, (6) any stateme nt that the defendant made on his ow n behalf and (7) the potential for rehabilitati on or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

As a standard, Range I offender c onvicted of a Class C fel ony, the defendant is presumed to be a fav orable candidate for alternat ive sentencing options. T.C.A. § 40-35-102(6). H owever, this presumptio n may rebutted upon a showing th at, among other things, “[m]eas ures less restricti ve than confinement have frequentl y or recently been applied unsuccessfully to the defendan t.” T.C.A. § 40-35-103(1)(C). We conclude that the trial cour t’s sentence of incarcerat ion is justified based upon the defendant’s lack of success with less restrictive measures as evidenced by his5

probation violation. The j udgment of conviction is af firmed.

________________________________ Joseph M. Tipton, Judge CONCUR:

_________________________ John H. Peay, Judge

_________________________ Norma McGee Ogle, Judge