            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE               FILED
                       NOVEMBER 1998 SESSION
                                                              January 28, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,        )
                           )      C.C.A. No. 03C01-9712-CR-00553
      Appellee,            )
                           )      Knox County
v.                         )
                           )      Honorable Ray L. Jenkins, Judge
MICHAEL DEAN TATE,         )
                           )      (Sentencing)
      Appellant.           )




FOR THE APPELLANT:                FOR THE APPELLEE:

Darryl W. Humphrey                John Knox Walkup
P. O. Box 665                     Attorney General & Reporter
Knoxville, TN 37914               425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Todd R. Kelley
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Randall E. Nichols
                                  District Attorney General
                                  400 Main Street
                                  Knoxville, TN 37901

                                  Paula R. Gentry
                                  Assistant District Attorney General
                                  400 Main Street
                                  Knoxville, TN 37901




OPINION FILED: ____________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                       OPINION


       The appellant, Michael Dean Tate, referred herein as the defendant, appeals as of

right from the sentence imposed by the Knox County Criminal Court, following entry of his

guilty pleas to sale of cocaine not exceeding one-half gram and possession of cocaine not

exceeding one-half gram with the intent to sell. After a sentencing hearing, the trial court

imposed fines of $2,000 for each offense and sentenced the defendant to six years for

each offense to be served consecutively in the Department of Correction.



       The sole issue for appellate review is:

              Whether the trial court erred when it failed to properly consider
              the mitigating factor and alternative sentencing for the
              defendant and instead sentenced the defendant to serve two
              consecutive six-year terms of imprisonment in the custody of
              the Tennessee Department of Correction.




       After a review of the entire record, briefs of the parties, and applicable law, we affirm

the judgment of the trial court.



                                   FACTUAL BACKGROUND



       On May 7, 1997, the defendant entered guilty pleas to the sale of cocaine and

possession of cocaine with the intent to sell. The defendant did not include a transcript of

the guilty plea hearing in this record. Apparently, the trial court was to determine the

appropriate confinement period and whether an alternative sentence was appropriate.



       The record establishes the defendant sold a “rock” of cocaine to an undercover

officer in Knox County on October 29, 1994. The defendant was released on bail. On April

28, 1995, law enforcement officers executed a search warrant at the defendant’s residence

and found three “rocks” of cocaine in a bedroom closet and a twenty dollar bill from an

earlier cocaine buy.




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       At the conclusion of the guilty plea proceedings, the trial court ordered the

defendant to report to the State Probation Office for a presentence report. The defendant

failed to report to the probation office and was taken into custody on June 26, 1997 until

he could be interviewed. After the interview, the trial court released the defendant on bail

and set a sentencing hearing for August 14, 1997.



       A review of the sentencing transcript reveals the defendant did not testify in support

of his application for an alternative sentence, but relied on his statement to the trial court

and the presentence report. Further, the defendant urged the trial court to place him in the

Community Alternatives to Prison Program (CAPP) and thus he could become a productive

member of society. The trial court found the defendant to be a Range I offender and

sentenced him to the maximum sentence of six years for each offense, to run

consecutively in the Department of Correction. The trial court ordered the sentences to be

served consecutively since the defendant was on bail for the offense of sale of cocaine

when he was arrested for the possession of cocaine with the intent to sell. The trial court

denied any alternative sentence and ordered the defendant into continuous confinement.



                           SENTENCING CONSIDERATIONS



       In the defendant’s single appellate issue, he contends the trial court failed to

consider and weigh a mitigating factor which should have resulted in a lesser sentence and

an alternative sentence. The state disagrees.



                                             A.

                                    Manner of Service



       When a defendant complains of the imposition of his or her sentence, we must

conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). Therefore, the burden of showing that the sentence is improper is upon the

appealing party. Id. The presumption that determinations made by the trial court are


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correct 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 (Tenn. 1991); State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App.

1994).



         If appellate review reflects the trial court properly considered all relevant facts and

its findings of fact are adequately supported by the record, this Court must affirm the

sentence “even if we would have preferred a different result.” State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an

appropriate sentence, the trial court must consider: (1) the evidence, if any, received at

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

sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics

of the criminal conduct involved; (5) evidence and information offered by the parties on

enhancement and mitigating factors; (6) any statements the defendant wishes to make in

the defendant’s behalf about the sentencing; and (7) the potential for rehabilitation and

treatment. Tenn. Code Ann. §§ 40-35-210(a) and (b), § 40-35-103(5); State v. Holland,

860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).



         The record in this case demonstrates the trial court made adequate findings of fact.

We, therefore, conduct a review of these facts with a presumption of correctness. In

determining the appropriate sentences, the trial court found four enhancement factors

supported by the evidence: the defendant has a previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the appropriate range,

Tenn. Code Ann. § 40-35-114(1); the defendant has a previous history of unwillingness to

comply with the conditions of a sentence involving release in the community, Tenn. Code

Ann. § 40-35-114(8); the defendant was convicted of a felony while on bail release, Tenn.

Code Ann. § 40-35-114(13)(A); and the defendant was adjudicated to have committed a

delinquent act or acts as a juvenile that would have constituted a felony if committed by an

adult, Tenn. Code Ann. § 40-35-113(20). The trial court rejected as a mitigating factor the

defendant’s criminal conduct neither caused nor threatened serious bodily injury, Tenn.



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Code Ann. § 40-35-113(1).



       We find the record fully supports the trial court’s determination of these

enhancement factors to raise the defendant’s sentences from the minimum of three years

to six years. The presentence report reveals the defendant has an extensive criminal

history beginning at the age of 13 and including several drug convictions as a juvenile. The

Knox County juvenile authorities found it necessary to revoke the defendant’s probation

and place him in confinement in a juvenile institution. As an adult, the defendant has been

convicted of the casual exchange of marijuana. At the time of the sentencing hearing, the

defendant had four active criminal charges, ranging from aggravated assault to driving on

a suspended license.



       Since the defendant contends that the trial court was in error for failing to apply

Tenn. Code Ann. § 40-35-113(1), the defendant’s criminal conduct neither caused nor

threatened serious bodily injury, we must determine if the record supports the trial court’s

decision. The defendant pled guilty to two Class C felonies, the sale of cocaine not

exceeding one-half gram and the possession of cocaine not exceeding one-half gram with

the intent to sell. The second offense occurred while the defendant was on bail release.

This Court has held this factor should not be applied when the defendant is convicted of

an offense involving the sale of cocaine. State v. Keel, 882 S.W.2d 410, 422 (Tenn. Crim.

App.), per. app. denied (Tenn. 1994); State v. Michael Anthony Pike, No. 02C01-9509-CC-

00261 (Tenn. Crim. App., Jackson, January 16, 1997), per. app. denied (Tenn. 1997);

State v. Larry D. Jones, No. 01C01-9112-CR-00368 (Tenn. Crim. App., Nashville, June 20,

1992), per. app. denied (Tenn. 1992); see State v. Kenny Cheatham, No. 01C01-9506-CC-

00196 (Tenn. Crim. App., Nashville, June 11, 1996).



       However, this Court has previously held that, although the voluntary sale of cocaine

may have the potential for bodily injury, this mitigating factor was applicable “unless the

conduct relates to serious bodily injury and the factor should be considered in relation to

the facts and circumstances of the particular case.” State v. Johnny Ray Christman, No.



                                             5
01C01-9211-CC-00361 (Tenn. Crim. App., Nashville, September 2, 1993). In certain

circumstances if a defendant sells cocaine in very small quantities to a willing buyer, this

factor may well be an appropriate mitigating factor. State v. Michael Wayne Henry, No.

02C01-9611-CC-00382 (Tenn. Crim. App., Jackson, May 29, 1997), per. app. denied

(Tenn. 1998); see also State v. Troy Carney and James Andrew Slaughter, Jr., No. 01C01-

9412-CR-00425 (Tenn. Crim. App., Nashville, February 23, 1996), per. app. denied (Tenn.

1997).



         Under the facts in this record, we believe the trial court was correct in rejecting factor

(1), Tenn. Code Ann. § 40-35-113. Although the first offense involved the sale of a small

amount of “rock” cocaine in October, 1994, the defendant continued his involvement in the

sales and/or possessions of cocaine for sale. This is evidenced by the execution of a

search warrant in April, 1995 whereupon the defendant was found to be in possession of

money from a previous sale and additional “rock” cocaine. The continuous and voluntary

sales of cocaine by the defendant reflect his total unconcern for the health and welfare of

his fellow citizens. There is no merit to this issue.



                                                 B.

                                Denial of Alternative Sentence



         In lieu of confinement, the defendant urges that he is a favorable candidate for

sentencing to the CAPP and that the trial court erred in failing to consider him for that

program.



         In denying the defendant’s request for probation, as well as for placement in the

CAPP, the trial court held:

                With regard to the request for probation, as well as
                consideration by the Community Alternatives to Prison
                Program, the Court observes that this defendant at the outset
                is attempting to alter the terms of any consideration that he will
                be given under any program. It’s better to face these at this
                point than to wait to revoke later.




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       Since the defendant entered two pleas of guilty to drug offenses, both Class C

felonies, ordinarily the defendant would be presumed to be a favorable candidate for

probation or an alternative sentence, in the absence of evidence to the contrary. Tenn.

Code Ann. § 40-35-102(6). It is clear from the record the defendant would not be entitled

to straight probation, thus the only viable option for the defendant was the CAPP. The

state had the burden of overcoming the defendant’s presumed candidacy for alternative

sentencing options.



       The defendant meets the requirement of consideration for placement in the

community corrections program. See Tenn. Code Ann. § 40-36-106(a)(2), Persons who

are convicted of drug/alcohol-related felony offenses not involving crimes against the

person as provided in title 39, chapter 13, parts 1-5.



       In determining the suitability of placing the defendant in any program, the trial court

took into consideration the report of the Knox County Sheriff’s Department CAPP. The

report, in the opinion of the CAPP staff, indicated the defendant would not be a successful

CAPP client due to the defendant’s prior record, history of non-compliance with Juvenile

Court, pending criminal charges, and his attitude and statements regarding CAPP

requirements. The defendant believed “CAPP is too strict for a Range I offender.” The

defendant refused to sign the Group/Individual Counseling Contract because he did not

think he would be able to attend due to transportation problems.



       Further, the trial court considered the sentencing principles of Tenn. Code Ann. §

40-35-103:

              (1) Sentencing involving confinement should be based on
                  the following considerations:

              (A) Confinement is necessary to protect society by
                  restraining a defendant who has a long history of
                  criminal conduct;

              (B) Confinement is necessary to avoid depreciating the
                  seriousness of the offense or confinement is
                  particularly suited to provide an effective deterrence
                  to others likely to commit similar offenses; or



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             (C) Measures less restrictive than confinement have
                 frequently or recently been applied unsuccessfully to
                 the defendant.



      The trial court set out a long list of its reasons for confining the defendant. The court

found confinement was necessary in view of the defendant’s long history of criminal

conduct and past measures less restrictive than confinement have been applied

unsuccessfully to the defendant. Furthermore, the defendant failed to assist the probation

office with preparation of a presentence report. We agree with the trial court’s findings

and affirm the judgment.




                                           ________________________________________
                                           L. T. LAFFERTY, SENIOR JUDGE


CONCUR:




___________________________________
DAVID H. WELLES, JUDGE




___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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