          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE

                           JANUARY 1997 SESSION
                                                     FILED
                                                        April 17, 1997

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                   )
                                                     Appellate C ourt Clerk
                                      )
             Appellee,                )    No. 03C01-9602-CC-00068
                                      )
vs.                                   )    Blount County
                                      )
MICHAEL STAMM,                        )    Honorable D. Kelly Thomas, Judge
                                      )
             Appellant.               )    (Sentencing - Sale of Cocaine)
                                      )



FOR THE APPELLANT:                         FOR THE APPELLEE:

NATALEE STAATS HURLEY                      CHARLES W. BURSON
Asst. District Public Defender             Attorney General & Reporter
419 High Street
Maryville, TN 37804                        LISA A. NAYLOR
                                           Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493


                                           MICHAEL L. FLYNN
                                           District Attorney General

                                           PHILIP MORTON
                                           Asst. District Attorney General
                                           Blount County Courthouse
                                           Maryville, TN 37801



OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                     OPINION

              Appellant, Michael Stamm, appeals the sentence imposed by the

Circuit Court of Blount County following his guilty plea to sale of cocaine, a Class

B felony. The court imposed a ten year sentence on appellant, a Range I

offender, to be served in custody of the Tennessee Department of Corrections. 1

In imposing this sentence, the court relied on appellant's criminal history as an

enhancing factor and the lack of a violent act and appellant's voluntary

submission to drug rehabilitation following his apprehension as mitigating factors.

In this direct appeal, appellant contends the trial court erred in sentencing him to

serve time in custody of the Department of Corrections, rather than ordering an

alternative sentence in the Community Corrections Program. On review of the

record before us, we affirm the sentence imposed by the trial court.



              In a three-count indictment, appellant was charged with possession

of cocaine with intent to sell and deliver, sale of cocaine, and delivery of cocaine,

all occurring on October 4, 1993 in violation of Tenn. Code Ann. § 39-17-417.

Each of these three counts is a Class B felony. Appellant pleaded guilty to

delivery of a controlled substance on March 31, 1994. This plea was accepted

by the court, but Appellant later withdrew it based upon a mutual mistake of law

between the district attorney and appellant's attorney that appellant was a Range

II offender. Appellant thereafter entered a guilty plea on the sale of cocaine

charge on August 31, 1995.



              A sentencing hearing was held, at which appellant testified he was

a 29-year-old custodial single parent of two children, ages 9 and 2-1/2.



   1
    The trial court also ordered a $2,000 fine and $100 restitution. Appellant has raised
no issue relative to the propriety of either amount.

                                         2
Appellant further testified he had an "extensive" drug abuse problem dating back

thirteen years. He testified he was employed as a painter earning $200 to $300

per week. Appellant acknowledged several previous felony convictions,

including multiple forgeries and sales of marijuana and cocaine; however, he

testified he committed these crimes to support his drug habit. Appellant

expressed his wish to receive drug rehabilitation services and testified about his

enrollment in a private, one week rehabilitation program following his

apprehension on the present charges. He testified he had been unable to

continue this private program after the first week due to lack of adequate health

insurance coverage and had relapsed into drug use only two days after release

from this program. Appellant further testified he had been evaluated and

determined eligible for the Community Corrections Program. He admitted on

cross examination he violated his probation for previous convictions on multiple

occasions, failed to appear at an earlier sentencing hearing for the withdrawn

guilty plea, and twice failed to assist in preparation of the presentence report by

contacting the probation office.



              The record reveals appellant had six previous Class E felony

convictions, the accuracy of which were not contested by defense counsel at the

sentencing hearing. Further, the state offered a certified copy of a five-count

forgery conviction, which was received without objection. Neither party called

Ms. Ridings, the Community Corrections official whom appellant testified

evaluated him for the program, and no report regarding appellant's eligibility for

Community Corrections was offered into evidence.



              Appellant's issue for resolution by this court is whether the trial

court erred in sentencing him to the Tennessee Department of Corrections rather


                                          3
than to an alternative sentence under the Community Corrections Act, Tenn

Code Ann. § 40-36-101 et seq. The parties have not taken issue with the length

of the sentence imposed by the trial court. We presume from this silence neither

party contends the trial judge's imposition of a ten-year sentence was

inappropriate under the statutory scheme. See Tenn. R. App. P. 13(b) ("Review

generally will extend only to those issues presented for review.") Accordingly, we

review the sentence only insofar as it mandates imprisonment rather than

Community Corrections.



             In determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with a

presumption the trial court's determinations were correct. Tenn. Code Ann. § 40-

35-401(d) (1990 repl.). The appellant has the burden of showing the sentence

imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n

Comments (1990 repl.); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

With respect to review of issues pertaining to the Community Corrections Act,

this court considers the sentencing considerations announced in Tenn. Code

Ann. §§ 40-35-103 and 40-35-210, the eligibility criteria of the Community

Corrections Act, Tenn. Code Ann. § 40-36-106, and the report of the entity

administering the local Community Corrections Program. State v. Taylor, 744

S.W.2d 919, 920 (Tenn. Crim. App. 1987).



             We begin our inquiry by noting appellant, as a Class B felon, is not

presumed to be a favorable candidate for alternative sentencing under the 1989

Sentencing Act. See Tenn. Code Ann. § 40-35-102(6) (1990 repl.). Moreover,

we note that not everyone convicted of a drug-related offense who meets the




                                        4
minimum criteria for participation in Community Corrections is entitled to be

sentenced under the Act. Taylor, 744 S.W.2d at 922.



              Upon de novo consideration of all of the evidence preserved in the

record, we do not find sufficient evidence to rebut the presumption that the trial

court's sentence was appropriate on the facts of this case. Appellant has had

many brushes with the law, which have resulted in numerous convictions. The

record indicates appellant has never been incarcerated with the Department of

Corrections and has received probation for at least some of these earlier

convictions. The fact that appellant is before this court with yet another

conviction is evidence of the failure of alternative sentencing to reform this

individual's conduct to the bounds of the law. Appellant has had repeated

opportunities to reform himself in an environment less restrictive than

confinement, and he has chosen not to do so. See Tenn. Code Ann. § 40-35-

103(1)(C) (1990 repl.). Moreover, in light of appellant's history of drug-related

convictions, allowing him to receive an alternative sentence for this drug-related

conviction depreciates the seriousness of the offense. See Tenn. Code Ann. §

40-35-103(1)(B) (1990 repl.).



              Although not specifically stated as an issue for review, appellant's

brief raises additional mitigating factors not cited by the trial judge at the

sentencing hearing. Those factors are (1) appellant's conduct neither caused

nor threatened serious bodily injury, (2) appellant acted under strong

provocation, and (3) appellant was motivated by a desire to provide necessities

for his family or himself. See Tenn. Code Ann. § 40-35-113(1),(2) and (7) (1990

repl.). Appellant did not specifically request application of these or any other

mitigating factors at the sentencing hearing. Although appellant's counsel makes


                                           5
inventive arguments that appellant's drug addiction created "strong provocation"

and a belief that drugs were "necessities," we find neither mitigating factor

applicable to this case. With respect to the other factor cited by appellant, that

his conduct neither caused nor threatened serious bodily injury, the record is

somewhat ambiguous as to the trial judge's actions in applying this factor; 2

however, we believe the trial judge did apply this factor in mitigation at

sentencing. Assuming arguendo, appellant's interpretation of the record is

correct, and further assuming this factor is appropriate for the case before us, 3

we find the application of this as an additional mitigating factor nevertheless fails

to overcome the presumption of correctness of the sentence imposed by the trial

judge.



               Finally, we note the trial judge did not make any findings relative to

two additional enhancement factors -- whether appellant had a history of

unwillingness to comply with the conditions of a sentence involving release into

the community and whether appellant committed the offense while on probation

for a another felony conviction. See Tenn. Code Ann. § 40-35-114(8) and (13)

(1990 repl.). On our de novo review, we find that these additional enhancement

factors are applicable to the case at bar and further justify the sentence imposed

by the trial court.




   2
    At the time of sentencing, the trial judge found, "Enhancing factors is [sic] your
record. A couple of small mitigation factors: One, there's not a violent act involved and
the other, you did seek some voluntary treatment while all this was going on."
(emphasis added). Appellant interprets the "lack of violence" factor to refer to
appellant's past criminal history, not the instant conviction.
   3
    This court has reached mixed results on the issue of whether lack of potential for
serious bodily injury is an appropriate mitigating factor. See, e.g., State v. Billy Smith,
No. 02C01-9112-CC-00278 (Tenn. Crim. App., Jackson, February 17, 1993); Ricky
Elam v. State, No. 966, (Tenn. Crim. App., Knoxville, March 19, 1991); State v. Clyde
Davis, No. 32, (Tenn. Crim. App., Knoxville, January 23, 1991).

                                          6
            Accordingly, we affirm the sentence of ten years to be served in

custody of the Tennessee Department of Corrections.




                                          _______________________________
                                          CURWOOD WITT, JUDGE



CONCUR:



_______________________________
GARY R. WADE, JUDGE


_______________________________
JOSEPH M. TIPTON, JUDGE




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