             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           DECEMBER 1997 SESSION
                                                       FILED
                                                       January 20, 1998

                                                      Cecil Crowson, Jr.
                                                       Appe llate Court C lerk
STATE OF TENNESSEE,                )
                                   )
                    APPELLEE,      )
                                   )          No. 02-C-01-9612-CC-00473
                                   )
                                   )          Dyer County
v.                                 )
                                   )          Joe G. Riley, Judge
                                   )
                                   )          (Sentencing)
CYNTHIA LYNN MANCELL,              )
                                   )
                   APPELLANT.      )



FOR THE APPELLANT:                     FOR THE APPELLEE:

G. Stephen Davis                       John Knox Walkup
District Public Defender               Attorney General & Reporter
208 North Mill Avenue                  500 Charlotte Avenue
Dyersburg, TN 38025-0742               Nashville, TN 37243-0497

                                       Janis L. Turner
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       C. Phillip Bivens
                                       District Attorney General
                                       P.O. Box Drawer E
                                       Dyersburg, TN 38024




OPINION FILED:_____________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, Cynthia Lynn Mancell (defendant), was convicted of possessing

marijuana over .5 ounces with intent to sell, a Class E felony, following her plea to the

offense. There was no plea agreement regarding punishment. The trial court conducted

a sentencing hearing, found the defendant to be a standard offender, and sentenced the

defendant to serve ninety (90) days in the Dyer County Jail and serve two (2) years

pursuant to the Community Corrections Act. Tenn. Code Ann. § 40-36-101, et. seq. In this

court, the defendant contends her sentence is excessive. She argues the trial court should

have permitted her to serve the entire sentence pursuant to the Community Corrections

Act. After a thorough review of the record, the briefs submitted by the parties, and the law

governing the issue presented for review, it is the opinion of this court that the judgment

of the trial court should be affirmed.

       Dyersburg police officers obtained a search warrant authorizing the search of the

defendant’s residence.     While executing the warrant, officers seized 140 grams of

marijuana. The defendant admitted she sold three ounces of marijuana before she was

arrested by the officers. The officers overlooked an additional pound of marijuana located

in the freezer compartment of the defendant’s refrigerator. She subsequently told officers

about the pound of marijuana after she had burned it. The defendant claimed she burned

the marijuana because she thought she would be required to serve a lengthy sentence in

the Department of Correction due to the quantity of marijuana she possessed. An officer

testified he had information the defendant had sold the pound of marijuana.

       An officer testified there was “a very large drug problem in Dyer County.” He opined

trafficking in marijuana had increased, stating “its increasing. It’s getting more and more

marijuana now than it was recently.” The officer classified the marijuana possessed by the

defendant as “a sizeable quantity,” which indicated the defendant was trafficking in this

substance.

       The defendant is married and the mother of three children. The defendant cares

for her mother-in-law, who suffers from diabetes, blindness, and a mental impairment. She

takes care of her niece and nephew. One of these children is handicapped. The

                                             2
defendant’s brother and sister-in-law live with the defendant. The defendant’s husband

and brother are both long distance truck drivers. They are away from home several days

each week.

       The defendant was 34 years of age when she was sentenced. She admitted to

trafficking in marijuana. According to the defendant, her husband had surgery for a work-

related injury and had not worked for eight months. She was working to support the family

-- all ten people who lived with her. She became ill and her employer terminated her when

her place of employment closed. Her income was $134 per week. She said she sold

marijuana to help support the family.

       The defendant used a $1,000 federal income tax overpayment check to purchase

one and one-half pounds of marijuana. She claimed she was a user of marijuana, and her

supplier, who knew about her financial problems, offered to sell her the marijuana so she

could generate income to support her family. The defendant testified she continued to use

marijuana as a substitute for “nerve medication.”

       The trial court found four mitigating factors. The factors included (a) her conduct did

not cause or threaten serious bodily injury, Tenn. Code Ann. § 40-35-113(1), (b) her

criminal conduct related to providing necessaries for her family, Tenn. Code Ann. § 40-35-

113(7), (c) she entered a plea of guilty, Tenn. Code Ann. § 40-35-113(13), and (d) she had

not been convicted of a felony. Tenn. Code Ann. § 40-35-113(13). The court found two

enhancement factors:        (a) she has a history of both criminal convictions and criminal

conduct, Tenn. Code Ann. § 40-35-114(1), and (b) she has a history of unwillingness to

comply with conditions of release into the community, Tenn. Code Ann. § 40-35-114(8).

The defendant does not challenge either the mitigating factors or the enhancement factors

found by the trial court.

       Several reasons were advanced for requiring the defendant to serve a portion of her

sentence. First, the defendant had several convictions and several admitted acts of

criminal conduct.    Tenn. Code Ann. § 40-35-103(1)(A).          Second, confinement was

necessary to avoid depreciating the seriousness of the offense committed by the

defendant. Tenn. Code Ann. § 40-35-103(1)(B). Third, there was a need for general

deterrence regarding the selling of illicit narcotics in Dyer County. Tenn. Code Ann. § 40-


                                              3
35-103(1)(B).         Fourth, less restrictive measures in the past proved to have been

unsuccessful in reforming the defendant’s conduct. Tenn. Code Ann. § 40-35-103(1)(C).

         When the defendant challenges the manner in which the sentence is to be served,

it is the duty of this court to conduct a de novo review of the record with a presumption the

factual determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d)

(1997 Repl.). This presum is "conditioned upo the affirma showingintherecordthat thetrial court consideredthe
                         ption               n           tive

sentencing prin ples and all relevant facts and circum
               ci                                     stances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

pre m n d s n a ly totheleg c clusionsrea edbythetrial co insentencingtheaccusedor tothedeterminations
   su ptio oe ot pp        al on         ch              urt

m bythetrial court whicharepredicated uponuncon
 ade                                           troverted facts. Statev. Butler, 900S.W.2d305, 311(Tenn. Crim App.
                                                                                                            .

1994); S tev S i h, 891S.W.2d922, 929(Tenn. Crim App.), per. app. denied(Tenn. 1994); Statev. Bonestel, 871S.W.2d163,
        ta . mt                                 .

166(Tenn. Crim App.1993). How this court isrequiredtogivegreat weight tothetrial court'sdeterminationofcontroverted
              .              ever,

facts asthetrial court'sdeterminationofthesefactsispredicateduponthewitnesses' demeanorand appearancewhentestifying.

         In conducting a de novore w of a se
                                  vie       ntence th co m co er (a a e encere ive at th tria and/or
                                                  , is urt ust nsid ) ny vid  ce d e l

sentencinghearing, (b) thepresentencereport, (c)theprinciplesof sentencing, (d) thearguments ofcounsel relativetosentencing

alternatives, (e) thenatureandcharacteristicsof theoffense, (f) any m igating or enhan ng factors, (g) any statem m b
                                                                     it               ci                         ents ade y

theaccusedinhisownbehalf, and(h) theaccused'spotential orlackof potential forrehabilitationortreatm Tenn.CodeAnn.
                                                                                                   ent.

§§40-35-103and-210; Statev. Scott, 735S.W.2d825, 829(Tenn. Crim App.), per. app. denied(Tenn. 1987).
                                                               .

         The party challenging the sentences imposed by the trial court has the burden of establishing that the sentences are

erroneous. SentencingCom issionCom entstoTenn. CodeA §40-35-401; Ashby, 823S.W.2dat 169; Butler, 900S.W.2d
                        m         m                 nn.

at 311. In this case, the defendant has the bu of illustrating the sen
                                              rden                    tences impo bythe trial court are erroneo
                                                                                 sed                           us.

         The defendant contends this court’s de novo review should be conducted without

a presumption of correctness because the trial court failed to verbalize the presumption

that a person who commits an Class E felony, as the defendant in this case, is presumed

to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6)

(1997 Repl.). Of course, this presumption may be rebutted by evidence which establishes

the defendant is not a favorable candidate for alternative sentencing. Id. Nevertheless, this

court is of the opinion a presumption of correctness should accompany the de novo review

in this case.

         While the trial court did not specifically mention the presumption of fitness for

alternative sentencing, it is clear on the face of the record the trial court honored the

                                                             4
presumption by granting the defendant an alternative sentence, albeit a sentence involving

split confinement. The presumption does not equate to the suspension of the entire

sentence imposed by a trial court or the serving of the entire sentence pursuant to the

Community Corrections Act.        In the context of this case, the State of Tennessee

successfully rebutted the presumption in favor of an alternative sentence. The defendant

was indeed fortunate the trial court tempered mercy with justice by sentencing her to serve

only ninety (90) days in confinement with the service of two (2) years pursuant to the Act.

       In this case, the trial court did not abuse its discretion by requiring the defendant to

serve ninety (90) days in the Dyer County Jail. The record supports the trial court’s

findings regarding the mitigating and enhancing factors. The court’s findings as to why the

defendant should serve some time in confinement are likewise supported by the record.




                                           _______________________________________
                                               JOE B. JONES, PRESIDING JUDGE


CONCUR:



______________________________________
        JERRY L. SMITH, JUDGE



______________________________________
        CURWOOD WITT, JUDGE




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