         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                      Assigned on Briefs April 25, 2001, at Knoxville

         STATE OF TENNESSEE v. THOMAS JARED RICHARDSON

                 Direct Appeal from the Criminal Court for Davidson County
                     Nos. 99-D-2936-A, 99-B-1424   Steve Dozier, Judge



                      No. M2000-01976-CCA-R3-CD - Filed May 11, 2001


The defendant, Thomas Jared Richardson, pled guilty to two counts of possession of less than .5
grams of cocaine with the intent to manufacture, deliver, or sell, a Class C felony. See Tenn. Code
Ann. § 39-17-417. The trial court imposed concurrent sentences of six years for each count, to be
served in the Davidson County Workhouse. The trial court also assessed a fine of $3,500 and
ordered the defendant to forfeit his weapon. In this appeal of right, the defendant argues that the trial
court should have imposed probation or some other alternative sentence. The judgment is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL , JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Thomas Jared Richardson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and Kymberly Haas, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

        On January 18, 1999, the defendant, Thomas Jared Richardson, was driving in Nashville
accompanied by two friends, Brandon Grigsby and Randy Reesner. When he thought he recognized
a friend traveling in front of them, the defendant flashed his lights. After determining that he had
been mistaken, the defendant turned around in a nearby apartment complex and discovered that he
was being followed by a security vehicle. The driver of the security vehicle followed for a mile or
so before activating the vehicle’s emergency lights. The defendant, who initially attempted to drive
away, eventually stopped and ran from his vehicle. He yielded only when the security guard drew
his weapon. When the police arrived, they discovered more than $4,000 in cash and some 74 grams
of cocaine in the defendant’s possession.
         At the sentencing hearing, the defendant claimed that when he stopped the car, Reesner fled
from the backseat, leaving behind large amounts of "dope" and money. The defendant contended
that as he then "drove off" in an attempt to elude the security guard, Grigsby tried to throw a gun and
the "dope" outside the car window. The defendant acknowledged that he then stopped a second time,
took the bag of "dope" from the backseat, and tried to run away.

       A month after their first arrest, the defendant and Grigsby were arrested at Midas Auto
Service Center after an employee saw Grigsby carrying a .9mm Ruger. The defendant testified that
he was unaware that Grisby had a weapon until he put on Grigsby’s jacket at the service center and
discovered a magazine clip in the pocket. During the ensuing search of the two men, police
recovered cocaine, marijuana and some $1,300 in cash.

        On May 1, 1999, three months after the second arrest, a vehicle driven by Metropolitan
Police Officer John Vincent was almost struck when the defendant ran a stop sign. Officer Vincent
broadcast a general description of the defendant’s vehicle and a second officer, J. Goodwin, saw the
vehicle and activated his emergency lights. According to Officer Goodwin, the defendant drove
about a mile before stopping. When the officer asked the defendant and his passenger, Anthony T.
McCoy,1 to step outside of their vehicle, each made a sudden movement, as if to throw something
underneath the car. McCoy then dropped a "baggie" of cocaine and a marijuana cigarette on the
ground. Officers recovered another marijuana cigarette and a cocaine "baggie" from the area where
the defendant had been required to lie on the ground.

        While facing charges in each of the three incidents, the defendant entered a negotiated plea
of guilt to only two counts of possession with intent to sell less than .5 grams of cocaine.

        At the sentencing hearing, the defendant’s mother, Sally Solis, testified that the defendant
would live with her if the trial court granted him probation. Ms. Solis acknowledged that the
defendant had a number of charges and convictions as a juvenile, two of which were drug related.
She admitted that when the defendant was 16 years old she had reported him to the police because
of his problems with drug abuse. She testified that the defendant had been expelled from high school
and had not taken the GED exam.

        The defendant conceded that he was in possession of cocaine during the first arrest, but
claimed that he was not "dealing" at the time. He maintained that he picked up the drugs as he ran
from the vehicle because he was scared and because he did not want the drugs to be discovered in
the vehicle, which was registered to a friend. He claimed that both the cocaine and the money
belonged to Reesner, and explained that he plead guilty in order to protect him. The defendant also
claimed that the $1,084 found on his person during his first arrest came from working and from his
mother. The defendant claimed that the .9mm gun clip and the $1,300 in cash that police found in
his possession during the second arrest actually belonged to Grigsby. He insisted that the marijuana
and cocaine were for his personal use only, but contradicted himself when he contended that he did


       1
           The record also identifies the defendant’s companion as Anthony McCord.

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not use cocaine. The defendant maintained that during his third arrest, the cocaine and marijuana
that police seized were found near the feet of McCoy. He claimed that the officers’ statements to
the contrary were untruthful. While acknowledging that he had sold drugs for at least two years, the
defendant contended that he was not selling drugs during any of the arrests.

        In this appeal, the defendant argues that the trial court erred by sentencing him to six years
in the Davidson County Workhouse. He submits that the trial court should have placed him on
probation or in community corrections or some other alternative to incarceration.

         When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption 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, 169 (Tenn. 1991); see State v.
Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise
fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that
the burden is on the defendant to show the impropriety of the sentence. Tenn. Code Ann. § 40-35-
401 Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case demonstrates
that the trial court made adequate findings of fact.

        The purpose of the Community Corrections Act of 1985 was to provide an alternative means
of punishment for "selected, nonviolent felony offenders in front-end community based alternatives
to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence provides
a desired degree of flexibility that may be both beneficial to the defendant yet serve legitimate
societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the
defendant meets the minimum requirements of the Community Corrections Act of 1985, the
defendant is not necessarily entitled to be sentenced under the Act as a matter of law or right. State
v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are eligible for
Community Corrections:

        (1)     Persons who, without this option, would be incarcerated in a correctional
                institution;




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        (2)     Persons who are convicted of property-related, or drug/alcohol-related felony
                offenses or other felony offenses not involving crimes against the person as
                provided in title 39, chapter 13, parts 1-5;

        (3)     Persons who are convicted of nonviolent felony offenses;

        (4)     Persons who are convicted of felony offenses in which the use or possession
                of a weapon was not involved;

        (5)     Persons who do not demonstrate a present or past pattern of behavior
                indicating violence;

        (6)     Persons who do not demonstrate a pattern of committing violent offenses;
                and

        Persons who are sentenced to incarceration or on escape at the time of consideration
        will not be eligible.

Tenn. Code Ann. § 40-36-106(a).

        Among the factors applicable to probation consideration are the circumstances of the offense,
the defendant's criminal record, social history and present condition, and the deterrent effect upon
and best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285 (Tenn. 1978). The
nature and circumstances of the offense may often be so egregious as to preclude the grant of
probation. See State v. Poe, 614 S.W.2d 403 (Tenn. Crim. App. 1981). A lack of candor may also
militate against a grant of probation. State v. Bunch, 646 S.W.2d 158 (Tenn. 1983).

        Moreover, in Ashby, our supreme court encouraged the grant of considerable discretionary
authority to our trial courts in matters such as these. 823 S.W.2d at 171; see State v. Moss, 727
S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744
S.W.2d at 922. "It is not the policy or purpose of this court to place trial judges in a judicial
straight-jacket in this or any other area, and we are always reluctant to interfere with their traditional
discretionary powers." Ashby, 823 S.W.2d at 171.

        In denying the defendant’s request for alternative sentencing, the trial court ruled as follows:

        [Y]ou haven’t been candid with the Court about the nature of these offenses and the
        circumstances surrounding them.
               You try to tiptoe through the questions asked by the State and then, finally,
        admit you’ve been selling cocaine for two years, that you didn’t know what Grigsby
        was doing or McCoy was doing or . . . anybody else. You knew exactly what they
        were doing, and you were part of it.



                                                   -4-
               Did you get caught in a sale? No. Do you have an explanation in your mind
       about how you got the thousand dollars and how you got the thirteen-hundred dollars
       and how you got the clip to a nine-millimeter? Yes. But I don’t buy it. . . . [B]ased
       on the nature of the offense involving the quantity of cocaine, and the number of
       months you get arrested over, and the number of months that you’ve acknowledge[d]
       selling drugs over, this sentence needs to be put into effect.

        In our view, the trial court properly considered all relevant facts and circumstances and
properly applied the sentencing principles. Thus, the sentence is entitled to a presumption of
correctness. The record demonstrates that the defendant lacked both candor and remorse. The lack
of remorse may be a basis for the denial of probation. Smith, 735 S.W.2d at 863; State v. Horne,
652 S.W.2d 916, 919 (Tenn. Crim. App. 1983). Moreover, a lack of candor or untruthful testimony
reflects poorly upon the defendant’s potential for rehabilitation and thus, may be a proper basis for
the denial of probation. State v. Jenkins, 733 S.W.2d 528, 535 (Tenn. Crim. App. 1987). Many of
the same principles governing the issue of probation are also applicable to requests for Community
Corrections. In our view, the facts and circumstances of this case do not warrant either probation
or any other alternative sentence.

       After entering two pleas of guilt, the defendant basically proclaimed his innocence as to each
of the charges. The trial court found that the defendant lacked credibility, failed to accept
responsibility for his misdeeds and demonstrated a lack of amenability to rehabilitation. The
evidence does not preponderate against that finding. Accordingly, the judgment is affirmed.



                                                      ____________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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