            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE

                              MAY 1998 SESSION



STATE OF TENNESSEE,                *   C.C.A. # 01C01-9707-CC-00267

      Appellee,                    *   RUTHERFORD COUNTY

VS.                                *   Hon. J. S. Daniel, Judge

RAMONA DAVIDSON,                   *   (Sale of Cocaine-Three Counts
                                       and Neglect of a Child)
      Appellant.                   *




For Appellant:                         For Appellee:

Jeffrey S. Burton                      John Knox Walkup
Assistant Public Defender              Attorney General and Reporter
201 West Main Street
Suite 101, Court Square Building       Deborah A. Tullis
Murfreesboro, TN 37130                 Assistant Attorney General
                                       Cordell Hull Building, Second Floor
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       William C. Whitesell
                                       District Attorney General
                                       Dale Robinson
                                       Asst. District Attorney General
                                       Third Floor, Judicial Building
                                       Murfreesboro, TN 37130




OPINION FILED:__________________________



AFFIRMED AS TO CONVICTION AND SENTENCES;
REMANDED FOR CONSIDERATION OF ALTERNATIVE SENTENCE



GARY R. WADE, PRESIDING JUDGE
                                      OPINION

             The defendant, Ramona Davidson, was indicted on eight counts of

sale of cocaine and three counts of child neglect. Pursuant to a negotiated plea

agreement, the defendant entered pleas of guilt to three counts of cocaine sales

and one count of neglect of a child. The trial court imposed Range I sentences of

six, three, and three years for the cocaine sales and eleven months and twenty-nine

days for neglect of a child. Probation was denied and the six-year sentence was

ordered to be served consecutively to the concurrent three-year sentences, for an

effective sentence of nine years. The defendant was fined $4,000.00.



             In this appeal of right, the defendant complains that the trial court

erred by ordering consecutive sentences. Furthermore, she asserts that the trial

court should have granted probation. We affirm the judgment of the trial court.



             Over a three-month period during the summer and early fall of 1996,

the defendant sold cocaine on eight different occasions to a variety of confidential

informants. On November 8, 1996, the defendant was indicted on each sale. She

was also indicted on three counts of neglect of the children in her custody. The plea

agreement as a result of the November 8 indictment involved guilt determinations for

three sales involving less than .5 gram of cocaine.



             Less than two weeks after the indictment, the defendant was arrested

while driving a vehicle with a stolen license tag. Police found crack cocaine

underneath her car seat. The defendant pled guilty to simple possession and was

sentenced to eleven months and twenty-nine days, consecutive to the sentences

from the November 8, 1996, indictment; all of this sentence was suspended. The

defendant agreed to a $750.00 fine.


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              When there is a challenge to the length, range, or manner of service 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 presumption is "conditioned upon the affirmative showing

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); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics 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. §§ 40-35-102, -103, and

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



              In calculating the sentence for Class B, C, D, or E felony convictions at

the time of these offenses, the presumptive sentence is the minimum within the

range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-

210(c). If there are enhancement factors but no mitigating factors, the trial court

may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A

sentence involving both enhancement and mitigating factors requires an assignment

of relative weight for the enhancement factors as a means of increasing the

sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced

within the range by any weight assigned to the mitigating factors present. Id.


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                  Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

                  [C]onsecutive sentences should not be routinely imposed
                  ... and ... the aggregate maximum of consecutive terms
                  must be reasonably related to the severity of the
                  offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria1 exist:

                  (1) The defendant is a professional criminal who has
                  knowingly devoted himself to criminal acts as a major
                  source of livelihood;

                  (2) The defendant is an offender whose record of
                  criminal activity is extensive;

                  (3) The defendant is a dangerous mentally abnormal
                  person so declared by a competent psychiatrist who
                  concludes as a result of an investigation prior to
                  sentencing that the defendant's criminal conduct has
                  been characterized by a pattern of repetitive or
                  compulsive behavior with heedless indifference to
                  consequences;

                  (4) The defendant is a dangerous offender whose
                  behavior indicates little or no regard for human life, and
                  no hesitation about committing a crime in which the risk


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    The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
conviction s, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-
115, Se ntencing Co mmission C ommen ts.

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              to human life is high;

              (5) The defendant is convicted of two (2) or more
              statutory offenses involving sexual abuse of a minor with
              consideration of the aggravating circumstances arising
              from the relationship between the defendant and victim
              or victims, the time span of defendant's undetected
              sexual activity, the nature and scope of the sexual acts
              and the extent of the residual, physical and mental
              damage to the victim or victims;

              (6) The defendant is sentenced for an offense
              committed while on probation; or

              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



              In Gray, our supreme court had ruled that before consecutive

sentencing could be imposed upon the dangerous offender, as now defined by

subsection (b)(4) in the statute, other conditions must be present: (a) that the

crimes involved aggravating circumstances; (b) that consecutive sentences are a

necessary means to protect the public from the defendant; and (c) that the term

reasonably relates to the severity of the offenses.



              In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our high court

reaffirmed those principles and ruled that consecutive sentences cannot be required

for any of the classifications "unless the terms reasonably relate to the severity of

the offenses committed and are necessary in order to protect the public from further

serious criminal conduct by the defendant." Id. at 938. The Wilkerson decision,

which modified guidelines adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn.

Crim. App. 1991), governing the sentencing of dangerous offenders, described

sentencing as "a human process that neither can nor should be reduced to a set of

fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnote omitted).




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             The plea agreement stipulated the length of the sentences. The only

questions for the trial court were whether the sentences should be served

consecutively and whether probation should have been granted.



             Now twenty-four years of age, the defendant dropped out of school

just before she had completed her high school education. She was married but had

separated at the time of the offenses, according to the presentence investigation.

She and her husband have two daughters who at the time of sentencing were four

and six years old. During the period the defendant has been incarcerated, since

February 26, 1997, her husband has had custody of the two children.



             The defendant has had a sporadic work history and has either quit,

been released, or terminated from several of her places of employment. At one of

her jobs, she got into a fight with another woman. The defendant had no

employment and no visible means of support. Yet, her prior record included only

two traffic offenses. The defendant failed to meet with the probation office

investigator on at least one occasion before sentence was imposed. When she

eventually met with the presentence investigator, she explained that she had sold

the drugs "to support my two kids and me. My husband and I had split up and I

wasn't receiving anything from him to care for these children. I had no

transportation to get to a job." The report included a statement by a detective that

some four months after the guilty plea, the defendant was "still in the business of

selling drugs." The defendant reported that she had some back problems but was

not under any kind of medication. While admitting that she had used crack cocaine

and marijuana since the age of twenty-one, she claimed that she had stopped prior

to committing these offenses.




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              The trial court observed that the defendant, who had claimed to have

quit using illegal drugs in February of 1996, had entered a plea of guilt to possession

of crack cocaine in late November of that year. In this case, the defendant was

indicted for eight sales of cocaine which took place during the late summer of 1996.

In the hearing before the trial judge, the defendant conceded that she was ineligible

for probation if the effective sentence was nine years or more:

              [B]ecause, obviously, if the Court orders one of them
              consecutive it will be a nine year sentence and she will
              be ineligible for probation at that point in time. So, it
              renders that issue m[oot].

              And by her own testimony the Court could run these
              sentences consecutive based her on testimony that it
              was her principal source of livelihood at the time....

              And I asked the Court to consider that and run them
              concurrent at this time.

              And if the Court decides to run those sentences
              concurrent, again, based on her lack of a prior record
              and the time she has currently served, I'd ask the court to
              place her on probation ....

The trial court concluded that the defendant warranted consecutive sentencing

because she sold drugs as her primary source of income and qualified as a

professional criminal. Tenn. Code Ann. § 40-35-115(b)(1). During argument, the

state pointed to inconsistencies in her testimony about not only the use or sale of

drugs but whether transportation had been available on the date she failed to meet

with her probation officer. There was evidence that the defendant continued to sell

drugs after the initial arrest and even after a second arrest for possession of crack.

It was hardly contested that she sold cocaine to support herself. Thus, the trial court

had a proper basis for consecutive sentencing.



              When determining a defendant's eligibility for probation, trial courts

must individually examine each sentence the defendant has received. State v.

Langston, 708 S.W.2d 830, 832 (Tenn. 1986). In this appeal, the state properly

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concedes that the defendant is eligible for probation because each of the four

sentences she received were eight years or less and because she did not commit

any of the crimes listed in the statute that bars eligibility. Tenn. Code Ann. § 40-35-

303(a).



               A defendant with an effective sentence exceeding eight years is

eligible for probation so long as the individual sentences are within the eligible

criteria set forth by Tenn. Code Ann. § 40-35-303. See State v. Goode, 956 S.W.2d

521, 527 (Tenn. Crim. app. 1997) (citing State v. Langston, 708 S.W.2d 830 (Tenn.

1986)); see Sentencing Commission Comments. State v. Michael Lynn Walton, No.

01C01-9509-CR-00290 (Tenn. Crim. App., at Nashville, Nov. 12, 1997).



               It appears from the record that the trial judge did not consider

probation, split confinement, or any other alternative sentence. That is

understandable based upon the defendant's stipulation that she was ineligible for

such treatment. The state now argues that while probation should have been

considered, there exist good and valid grounds for denial. That may be so. It is,

however, more appropriate for the trial court to make that determination.



               The judgment and the consecutive sentences are affirmed. The cause

is remanded so that the trial judge may consider whether an alternative sentence is

appropriate.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge




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CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Jerry L. Smith, Judge




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