         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 11, 2002

              STATE OF TENNESSEE v. MELISSA ANN BREWER

                   Direct Appeal from the Circuit Court for Coffee County
                            No. 31,480   John W. Rollins, Judge



                    No. M2002-01982-CCA-R3-CD - Filed March 13, 2003


The defendant appeals her sentence of three years imprisonment for the sale of less than .5 grams
of cocaine, a Class C felony. The defendant argues she is a favorable candidate for alternative
sentencing. The record supports the defendant’s assertion that she is entitled to an alternative
sentence. The defendant is sentenced to three years in split confinement, with thirty (30) days
incarceration and the remainder on supervised probation. We remand this judgment to determine
if the defendant continues to hold full-time employment. If the defendant is employed full-time, she
is to serve her thirty (30) days in periodic confinement.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Reversed and Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE , JJ., joined.

Bethel Campbell Smoot, Jr., District Public Defender, and Rachel E. Willis, Assistant Public
Defender, for the appellant, Melissa Ann Brewer.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Charles Michael Layne, District Attorney General; and Kenneth J. Shelton, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION


        The defendant, Melissa Ann Brewer, pled guilty to selling a controlled substance. The trial
court sentenced the defendant as a Range I mitigated offender to three years imprisonment in the
Tennessee Department of Correction and imposed a two thousand dollar ($2000) fine. In this appeal,
the defendant contends that she should have been granted some form of alternative sentencing.
        On February 6, 1997, Officer Nick Watson of the Lavergne Police Department bought forty
dollars ($ 40) worth of crack cocaine from the defendant as part of a sting operation in the Dossett
Apartments area of Tullahoma, Tennessee. The trial court sentenced the defendant to three years
imprisonment, citing the sentence was necessary for the defendant to avoid depreciating the
seriousness of the offense. The trial court reasoned that confinement is “particularly suited to
provide an effective deterrent to others prone to commit this type of offense.”

                                              Analysis

        Appellate review of sentencing is de novo with the presumption that the trial court’s
determinations are correct. Tenn. Code Ann. § 40-35-401(d). If the trial court followed the
procedure, made findings of fact that are adequately supported in the record, and weighed and
considered the factors and principles of sentencing, we may not disturb the sentence even if a
different result had been preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
The burden is now on the defendant to demonstrate the impropriety of her sentence.

        In conducting a de novo review, this Court considers (1) the evidence, if any, received at the
trial and 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,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229
(Tenn. 1986).

         Pursuant to Tennessee Code Annotated section 40-35-109, the trial court may find a
defendant to be an especially mitigated offender if (1) the defendant has no prior felony convictions
and (2) the court finds mitigating factors, but no enhancement factors. The question of whether a
defendant should be sentenced as an especially mitigated offender rests within the sound discretion
of the trial court. See State v. Turner, 30 S.W.3d 355, 362 (Tenn. Crim. App. 2000) (citing State v.
Braden, 867 S.W.2d 750, 762 (Tenn. Crim. App. 1993)). Here, the trial court sentenced the
defendant as a mitigated offender at 20% release eligibility date.

        The presumption of correctness which accompanies the trial court’s action is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances. Ashby, 823 S.W.2d at 169. The trial court must place on
the record its reasons for arriving at the final sentencing determination, identify each mitigating and
enhancement factors found, state the specific facts supporting each enhancement factor found, and
articulate how the mitigating and enhancement factors have been evaluated and balanced in
determining the sentence. Tenn. Code Ann. § 40-35-210(f) (1990), State v. Jones, 883 S.W.2d 597,
599 (Tenn. 1994).

        A defendant who is an especially mitigated or standard offender convicted of a Class C, D,
or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence


                                                 -2-
of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6); State v. Lane, 3 S.W.3d 456, 462
(Tenn. 1999). Tennessee Code Annotated section 40-35-103(1) sets forth “evidence to the contrary”
which would rebut the presumption of alternative sentencing:
        (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
        (C) Measures less restrictive than confinement have frequently or recently been
            applied unsuccessfully to the defendant[.]
See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); Ashby, 823 S.W.2d at 170. The record reflects
the trial court considered alternative sentencing, but found incarceration necessary to “avoid
depreciating the seriousness of the offense” and to provide an “effective deterrent to others prone
to commit this type of offense.”

       At the time of sentencing, the defendant was thirty-five years old, divorced, with custody of
two minor children. She has an eighth grade education and had worked as a waitress prior to
sentencing. The defendant had been convicted twice for theft under five hundred dollars ($500), a
Class A misdemeanor, and was placed on probation. At the age of twenty-nine, the defendant
pleaded guilty to two counts of theft under five hundred dollars ($500), a Class A misdemeanor, in
1996. It was revealed at the sentencing hearing that the defendant committed the instant offense
while on probation and that she did not successfully complete her probation in General Sessions
court. The defendant explained that at that time in her life she was in an abusive relationship, and
she violated the terms of her probation because she had to leave state to obtain physical custody of
her children. The defendant stated that she has not been in trouble since 1997 and is drug free.

        The trial court found that the defendant was entitled to the presumption of alternative
sentencing but that the presumption had been rebutted because alternative sentencing would
depreciate the seriousness of the offense and because confinement is particularly suited to provide
an effective deterrent to others likely to commit the offense. Generally, to deny alternative
sentencing based on the seriousness of the offense, the offense, “as committed, must be ‘especially
violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated
degree,’ and the nature of the offense must outweigh all factors favoring” an alternative sentence.
State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991).

       In the instant case, we are unable to glean from the record anything particularly horrifying
or shocking relating to the present offenses. Furthermore, the record lacks any proof that the
sentence imposed will have a deterrent effect within the jurisdiction. See Hooper, 29 S.W.3d 1
(Tenn. 2000). The principles of sentencing reflect that a sentence should be no greater than that
deserved for the offense committed and should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). For these
reasons, we conclude the defendant was entitled to an alternative sentence.



                                                -3-
                                            Conclusion

         Because the record does not support the denial of alternative sentencing, the defendant is
sentenced to three years in split confinement, with thirty days to be served in jail and the remainder
of her sentence on supervised probation. We remand this judgment to determine if the defendant
is employed full-time. If the defendant has steady employment, the defendant is to serve her thirty
(30) days in periodic confinement, as to not interfere with her ability to earn an income.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




                                                 -4-
