         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE             FILED
                           JULY SESSION, 1998          August 17, 1998

                                                  Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,          )    C.C.A. NO. 03C01-9710-CC-00469
                             )
      Appellee,              )
                             )
                             )    BLOUNT COUNTY
VS.                          )
                             )    HON. D. KELLY THOMAS, JR.
MIKE RAMSEY,                 )    JUDGE
                             )
      Appe llant.            )    (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF BLOUNT COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

JULIE A. MAR TIN                  JOHN KNOX WALKUP
P.O. Box 426                      Attorney General and Reporter
Knoxville, TN 37901-0426
                                  GEORGIA BLYTHE FELNER
MACK GARNER                       Assistant Attorney General
District Public Defender          425 5th Avenu e North
419 High Street                   Nashville, TN 37243
Maryville, TN 37804
                                  MIKE FLYNN
                                  District Attorney General

                                  PHILIP MORTON
                                  Assistant District Attorney General
                                  363 Court Street
                                  Maryville, TN 37804


OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION

          The Defen dant, Mike Ramsey, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. He was convicted, upon his pleas of

guilty, of two counts of delivery of marijuana, Class E felonies, and one count of

possession of cocaine for the purpose of resale, a Class B felony. 1 The agreed

sentences for the two Class E felonies were two years as a Range I standard

offender. The agreed sentence for the Class B felony was eight years as a

Range I standard offende r. It was furthe r agreed that the tw o-year sentences

were to be served concurrent with each other but consecutive to the eight-year

sentence, for an agreed effective sentence of ten years. The manner of service

of the sentences was left to the discretion of the trial judge. After conducting a

sentencing hearing, the trial judge ordered that the Defendant serve seven

months in the county jail for the Class E felon ies, followed by a co nsecutive term

of five months in the county jail for the Class B felony, for a total of twelve months

in the co unty jail. The balance of the effective ten-year sentence was ordered to

be served in the community corrections progra m. Th e Def enda nt app eals from

the trial judge’s o rder that tw elve mo nths of th e senten ces b e serve d in

confinem ent. W e affirm the judgm ent of the tria l court.



          The marijuana charges resulted from the Defen dant’s sa le of mar ijuana to

a confid ential in forma nt.       W hile the marijuana charges were pending, the

Defendant was arrested on a charge of possessing more than .5 grams of

cocaine. The indictments state that the marijuana s ales occurred on Janua ry 9



1
    Tenn. Code Ann. § 39-17-417.

                                            -2-
and January 16, 1996, and that the cocaine possession took place on August 26,

1996. On appeal, the Defendant argues that the trial judge abused his discretion

by requirin g the Defendant to serve an additional five months for the cocaine

conviction.



      When an accused challenges the length, range, or manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial co urt are co rrect. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



      In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and sentencing hearing; (b) the

presentence report; (c) the princip les of sen tencing a nd argu ments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

-210; State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



      The presentence report reflects that the Defendant was twenty-eight years

old, single, and had no children. H is forma l educatio n ende d with the e leventh

grade but the Defendant stated that he earne d his GED . His employm ent history

is fair. He lost his most recent job as an electrician’s assistant due to his arrest

                                        -3-
and legal problems. He had been terminated from his prior employment because

he was suspected of smoking marijuana while on his brea k and subs eque ntly

refused to take a d rug test.



      The Defendant’s criminal history is quite extensive. He has been arrested

appro ximate ly eighteen times. Among his convictions are several traffic offenses

(including two convictions for driving on a suspe nded license ), one pub lic

intoxication, one casual exchange of marijuana, one sale of marijuana, two thefts,

and several other unspecified misdemeanors. On the dates of the marijuana

sales, the Defendant was on probation from prior convictions. At the time the

Defendant was charged with possessing the cocaine, his probation had expired

but he was on bond pending resolution of the marijuana charges.



      The Defendant testified concerning his long history of drug and alcohol

abuse. He started experimenting with marijuana when he was about thirteen

years old.    In add ition to alcoh ol, he “we nt to pills like valium s, and then

event ually . . . started cocaine use.”        He reached the point that he was

experiencing memory loss and blackouts. He said that he sold m arijuana to

support his own drug habit.       The Defendant admitted that he started using

cocaine fairly heavily following his arrest on the charges of selling marijuana.

The Defendant testified at the sentencing hearing that he had been in jail for

about five months, and ?after being in jail this long and they’ve been

overcrowding us, and for fear of going to prison, I intend to walk a straight line

and sh ow the c ourt I can d o right.”




                                         -4-
      Concerning the amo unt of tim e the D efend ant wa s to se rve in confinem ent,

the judge stated,

      He is being given an alternative sentence, but still the — giv ing him
      the longer time in custody, I think, a re all the sam e thing s that w ould
      have justified sen ding him to the pen itentiary. That is, it’s necessa ry
      to protect society by restraining a person who has a long history of
      criminal cond uct, ne cess ary to a void de precia ting the seriousness
      of the offe nse, a nd thin gs less restrictiv e than confinem ent have
      been used recently without success. All of those things apply to this
      set of facts that we have here.


      W e believe that the Defendant’s lengthy criminal record, the failure of past

attemp ts to rehabilitate him, and his continued disregard for the law s of this State

justify the length of confinem ent ordered b y the trial judge. Trial judges are

tradition ally vested with broad discretion in sentencing matters . From this record,

we are unable to conclude that the trial judge erred or abused his discretion.



      The judgment of the trial court is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




                                         -5-
