          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON               FILED
                             JULY 1999 SESSION             October 25, 1999

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                  *   C.C.A. # 02C01-9901-CC-00021

              Appellee,              *   HENRY COUNTY

VS.                                  *   Honorable Julian P. Guinn, Judge

BEN PHILLIP RAY,                     *   (Possession of Drugs, Etc.)

              Appellant.             *



FOR THE APPELLANT:                       FOR THE APPELLEE:

(On Appeal)                              PAUL G. SUMMERS
                                         Attorney General & Reporter
W. JEFFERY FAGAN
Assistant District Public Defender       PETER M. COUGHLAN
117 Forrest Avenue North                 Assistant Attorney General
Camden, TN 38320                         425 Fifth Avenue North
                                         Nashville, TN 37243
GUY T. WILKINSON
District Public Defender                 ROBERT ‘GUS’ RADFORD
                                         District Attorney General

                                         STEVEN L. GARRETT
                                         Assistant District Attorney General
                                         P.O. Box 94
                                         Paris, TN 38242




OPINION FILED: _______________




AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

      In this unusual appeal from Henry County, the defendant, Ben Phillip Ray,

claims he should have received more jail time than he was actually given by the

trial judge. The defendant wants to serve his time in the state penitentiary

instead of in the Henry County jail. After review of the record, we conclude that

the wishes of this defendant should not be granted. A defendant does not have

the right to refuse a minimum sentence. Therefore, the trial court’s sentence is

AFFIRMED, and we decline the defendant’s opportunity to sentence him to a

greater sentence.



                                 BACKGROUND

      On April 9, 1997, the defendant was convicted in Henry County Circuit

Court of possession of Schedule II Drugs, cocaine. He was sentenced to three

years in the Department of Correction with all time suspended except one year.



      While serving his one year in the Henry County jail, the defendant was

charged with the offenses related to this appeal.



      The defendant pled guilty on December 8, 1998, to one count of

Introduction or possession of drugs in a penal institution and to a second count

of possession of drug paraphernalia. At the sentencing hearing, the defendant’s

retained counsel questioned the defendant concerning where he would like to

spend his time:

      Defendant:    I would rather spend it down in the penal institution.
      Counsel:      In the penitentiary rather than the Henry County jail?
      Defendant:    Yes, ma’am.
      Counsel:      Even if that means that you would get more time?
      Defendant:    Yes, ma’am.
      Counsel:      Okay; why?
      Defendant:    Because I look to better myself any way -- any way
                    I can, and being down there in the Henry County Jail

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                     there’s no way too much to better yourself. There’s
                     nothing to do but lay around. You can’t -- you don’t
                     get your recreation time or nothing. And I’d rather
                     better myself if I can.
       Counsel:      You had spent a year in the Henry County Jail. Is
                     that correct?
       Defendant:    Yes, ma’am.


       In summation, the defendant’s retained counsel requested the court to

sentence her client to more than the minimum sentence so he could go to the

penitentiary. The trial judge was very skeptical of the defendant’s reasoning and

motives for requesting an enhanced sentence. The trial judge sentenced the

defendant to the minimum three years on the first count and eleven months,

twenty-nine days on the second count, to run concurrently with each other. The

sentence is to be served in split confinement, with one year of continuous

confinement in the Henry County jail and the remaining balance on supervised

probation.



       The defendant then requested the trial judge to reconsider the sentence,

and another hearing was held. At this hearing, the defendant’s counsel again

insisted that the defendant wanted to take advantage of programs offered in the

penitentiary and unavailable in the Henry County Jail. Specifically, the defendant

wanted more opportunities to exercise and lift weights. The trial judge overruled

the defendant’s motion to reconsider his sentence.



                                     ANALYSIS

       This Court’s review of the sentence imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the

trial judge considered the sentencing principles and all relevant facts and

circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the

trial court fails to comply with the statutory directives, there is no presumption of



                                         -3-
correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997).



       The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) sentencing comm’n comments. In

conducting our review, we are required, pursuant to Tennessee Code Annotated

§ 40-35-210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
           hearing;
       (2) [t]he presentence report;
       (3) [t]he principles of sentencing and arguments as to sentencing
           alternatives;
       (4) [t]he nature and characteristics of the criminal conduct involved;
       (5) [e]vidence and information offered by the parties on the
           enhancement and mitigating factors in §§ 40-35-113 and 40-35-
           114; and
       (6) [a]ny statement the defendant wishes to make in the
           defendant’s own behalf about sentencing.



       If no mitigating or enhancement factors for sentencing are present,

Tennessee Code Annotated § 40-35-210(c) provides that the presumptive

sentence shall be the minimum sentence within the applicable range. See State

v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum sentence within

the range for enhancement factors and then reduce the sentence within the

range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular

weight for each factor is prescribed by the statute, as the weight given to each

factor is left to the discretion of the trial court if the trial court complies with the

purposes and principles of the sentencing act and, if its findings are supported

by the record. See State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v.

Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago, 914

S.W.2d 116, 125 (Tenn. Crim. App. 1995); Tenn. Code Ann. § 40-35-210

sentencing comm’n comments. Nevertheless, should there be no mitigating


                                            -4-
factors but enhancement factors are present, a trial court may set the sentence

above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); see

Lavender, 967 S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn.

Crim. App. 1994).



       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after giving due consideration and proper

weight to the factors and principles set out under sentencing law, and if the trial

court’s findings of fact are adequately supported by the record, then we may not

modify the sentence even if we would have preferred a different result. See

Fletcher, 805 S.W.2d at 789.



       We conclude that the trial judge properly sentenced the defendant. The

defendant has not cited to any legal authority to the contrary. However, this

Court has ruled that a defendant did not have the right to refuse a sentence of

Community Correction even though he did not request such a sentence. See

State v. Estep, 854 S.W.2d 124, 127 (Tenn. Crim. App. 1992).



                                   CONCLUSION

       We conclude that this defendant does not have the right to reject the

minimum sentence he received. We AFFIRM the sentence of the trial court.




                                           _____________________________
                                           JOHN EVERETT W ILLIAMS, Judge

CONCUR:




______________________________
JOSEPH M. TIPTON, Judge

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_______________________________
JAMES CURWOOD WITT, JR., Judge




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