        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 2, 2011

              STATE OF TENNESSEE v. ROY A. JAMISON, JR.

               Direct Appeal from the Circuit Court for Hardin County
                       No. 9191 C. Creed McGinley, Judge




               No. W2010-02314-CCA-R3-CD - Filed October 20, 2011



The Defendant, Roy A. Jamison, Jr., pled guilty to possession with the intent to deliver .5
grams or more of cocaine, a Class B felony, with a possible sentence range of eight to twelve
years. The trial court sentenced the Defendant to ten years and ordered the Defendant to
serve the first year of his sentence in the Tennessee Department of Correction and the
balance in the Community Corrections Program. On appeal, the Defendant contends the trial
court erred when it: (1) used the Defendant’s criminal history to enhance his sentence; and
(2) sentenced him to confinement. After a thorough review of the record and relevant
authorities, we conclude the trial court properly sentenced the Defendant. Accordingly, we
affirm the trial court’s judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH
and C AMILLE R. M CM ULLEN, JJ., joined.

Richard W. DeBerry, Camden, Tennessee , for the Appellant, Roy A. Jamison. Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Hansel McCadams, District Attorney General, and Eddie N. McDaniel, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                          I. Facts

      This case arises from the Defendant’s arrest in Hardin County for the sale of crack
cocaine, a Schedule II drug. According to the affidavits supporting the Hardin County
indictments against the Defendant and according to the Defendant’s presentence report, on
or around January 16, 2008, and while serving a probationary sentence for a separate offense,
the Defendant sold approximately 4.4 grams of crack cocaine to an undercover informant for
$300.00. In March 2010, a Hardin County grand jury indicted the Defendant for possession
of a Schedule II controlled substance with intent to deliver. See T.C.A. § 39-17-417
(a)(4)(c)(1) (2009) . The Defendant pled guilty on August 16, 2008, and agreed to allow the
trial court to determine the manner and length of his sentence. During the hearing, the State
gave the following summary of the factual basis for the Defendant’s plea:

       [I]f this matter went to trial, the State would be able to show on the 16th of
       January, 2008, this Defendant did possess, with intent to deliver, a substance
       identified by the TBI Crime Lab as cocaine, a Schedule II [drug] in the weight
       amount of 4.4 grams, therefore violating Tennessee Code Annotated [section]
       39-17-417.

        Thereafter, the trial court held a sentencing hearing wherein the State submitted the
presentence investigation report into evidence. The presentence report indicates that the
Defendant has been previously convicted of eight drug-related crimes, both felonies and
misdemeanors. The report indicates that, since 1991, the Defendant’s criminal history
contains numerous convictions, many involving cocaine and at least nine sentences involving
probation. The Defendant’s criminal history includes: five traffic-related offenses, three
convictions for possession and delivery of Schedule II drugs, three convictions for possession
of controlled substances, two convictions for casual exchange of drugs, one simple assault
conviction, one conviction for assault of a police officer, one resisting arrest conviction, two
evading arrest convictions, one theft conviction, and one conviction for issuing bad checks.
The presentence report shows that the Defendant committed three cocaine felony offenses
in 1994, for which he served one year of an effective sentence of three years incarcerated
with the remainder of the sentence probated. The Defendant was ultimately discharged from
this sentence in 2000. The Defendant committed three drug-related misdemeanor offenses
between his discharge in 2000 and the January 16 , 2008, offense in question. The Defendant
did not commit any other drug-related felonies until the offense at issue in this case. He did,
however, receive probation for a term of eleven months and twenty-nine days for possession
of a controlled substance and for evading arrest, both misdemeanors, in McNairy County.
The January 16, 2008, felony drug offense violated that McNairy County term of probation.
The presentence report also indicates that the Defendant has been previously granted
probation and, on numerous occasions, violated his probation sentence.

       At the Defendant’s sentencing hearing, the trial court considered the Defendant’s
“significant criminal history,” which contains more convictions than necessary to establish
the applicable range, as a “strong enhancing factor” applicable to the sentence. The

                                               2
Defendant did not file any mitigating factors. The trial court, relying upon the presentence
report, found that the Defendant’s history of drug-related criminal conduct required a
sentence of confinement. The trial court sentenced the Defendant to ten years for his felony
drug conviction. The trial court ordered that one year of the ten year sentence be served in
the Tennessee Department of Correction and the remainder be served in a Community
Corrections program. It is from this judgment that the Defendant now appeals.

                                         II. Analysis

       On appeal, the Defendant contends that the trial court erred when it: (1) used the
Defendant’s criminal history to enhance his sentence; and (2) ordered he serve part of his
sentence in confinement. The State responds that the trial court properly sentenced the
Defendant within the applicable range and properly exercised its discretionary authority to
deny full probation.

                                 1. Enhancement Factors

        The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe
the process for determining the appropriate length of a defendant’s sentence. Under the Act,
a trial court may impose a sentence within the applicable range as long as the imposed
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40–35–210(c)(2), (d)
(2009); see State v. Carter, 254 S.W.3d 335, 343 (Tenn.2008). The Tennessee Code allows
a sentencing court to consider the following enhancement factor, as relevant to this case,
when determining whether to enhance a defendant’s sentence: “(1) The defendant has a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range.” T.C.A. § 40-35-114(1) (2009). If an enhancement factor
is not already an essential element of the offense and is appropriate for the offense, then a
court may consider the enhancement factor in its length of sentence determination. T.C.A.
§ 40-35-114 (2009). In order to ensure “fair and consistent sentencing,” the trial court must
“place on the record” what, if any, enhancement and mitigating factors it considered as well
as its “reasons for the sentence.” T.C.A. § 40-35-210(e) (2009).

       Before the 2005 amendments to the Sentencing Act, both the State and a defendant
could appeal the manner in which a trial court weighed enhancement and mitigating factors
it found to apply to the defendant. T.C.A. § 40-35-401(b)(2) (2003). The 2005 amendments
deleted as grounds for appeal, however, a claim that the trial court did not properly weigh the
enhancement and mitigating factors. See 2005 Tenn. Pub. Acts ch. 353, §§ 8-9. In summary,
although this Court cannot review a trial court’s weighing of enhancement factors, we can
review the trial court’s application of those enhancement factors. T.C.A. § 40-35-401(d)
(2006); Carter, 254 S.W.3d at 343.

                                              3
        The Defendant is a Range I standard offender, and possession of a Schedule II (4.4
grams of cocaine) controlled substance with intent to deliver is a Class B felony. T.C.A. §
39-17-417(a)(4)(c)(1) (2009). Therefore, the appropriate range for the Defendant’s
conviction is eight to twelve years. T.C.A. § 40-35-112(a)(2) (2009). The Defendant
disputes the trial court’s application of the enhancement factor of the Defendant’s criminal
history. The record shows that the State adequately established the Defendant had previously
been convicted of possession of Schedule II drugs and delivery of Schedule II drugs, among
numerous other offenses presented in the presentence report. Further, the record shows that
the Defendant previously violated his probation, committing a felony while on probation.
Therefore, the trial court properly applied this enhancement factor. The Defendant is not
entitled to relief on this issue.

                                2. Sentence of Confinement

       The Defendant contends that the trial court erred when it ordered he serve part of his
sentence in confinement. The State responds that the trial court sentenced the Defendant
within the applicable range and properly exercised its discretionary authority.

       When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct a de novo review of the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d) (2009). As the Sentencing Commission Comments to this section note, the burden
is on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401
(2009), Sentencing Comm’n Cmts. This means that, if the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
1989 Sentencing Act, Tennessee Code Annotated section 40-35-103, we may not disturb the
sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn.
2001). The presumption does not apply to the legal conclusions reached by the trial court in
sentencing a defendant or to the determinations made by the trial court which are predicated
upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001);
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d
922, 929 (Tenn. Crim. App. 1994).

       In conducting a de novo review of a sentence, we must consider: (1) any evidence
received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of
sentencing, (4) the arguments of counsel relative to sentencing alternatives, (5) the nature and
characteristics of the offense, (6) any mitigating or enhancement factors, (7) any statements
made by the defendant on his or her own behalf and (8) the defendant's potential or lack of
potential for rehabilitation or treatment. See T.C.A. § 40-35-210 (2009); State v. Taylor, 63

                                               4
S.W.3d 400, 411 (Tenn. Crim. App. 2001).

       To meet the burden of establishing suitability for full probation, or a non-incarcerative
sentence, a defendant must demonstrate that full probation will subserve the ends of justice
and the best interests of both the public and the defendant. State v. Blackhurst, 70 S.W.3d
88, 97 (Tenn. 2001). The following criteria, while not controlling the discretion of the
sentencing court, shall be accorded weight when deciding the defendant's suitability for full
probation: (1) the nature and circumstances of the criminal conduct involved; (2) the
defendant’s potential or lack of potential for rehabilitation; (3) whether a sentence of full
probation would unduly depreciate the seriousness of the offense; and (4) whether a sentence
other than full probation would provide an effective deterrent to others likely to commit
similar crimes. T.C.A. §§ 40-35-103(1)(B), -103(5), -210(b)(4) (2009); see also Blackhurst,
70 S.W.3d at 97.

       In the case under submission, the Defendant is eligible for full probation because his
sentence is ten years or less (subject to certain statutory exclusions not relevant here). T.C.A.
§ 40-35-303(a) (2009). Although full probation must be automatically considered by the trial
court as a sentencing alternative whenever the defendant is eligible, “the defendant is not
automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b) (2009),
Sentencing Comm’n Cmts.

         The trial court sentenced the Defendant to ten years and ordered him to serve one year
in confinement and the balance to be served in a Community Corrections program. The trial
court found that, based upon the circumstances of the offense and the Defendant’s significant
criminal history, full probation was not appropriate in this case. The trial court based its
denial of full probation upon its sound findings that the Defendant has a long history of
criminal conduct and numerous convictions, including previous offenses involving cocaine,
theft, simple assault, and issuing bad checks. See T.C.A. §§ 40-35-103(5), -210(b)(4) (2009).
Further, the record supports the trial court’s finding that the Defendant has previously been
unsuccessful when ordered to a sentence of probation. See T.C.A. § 40–35–103(1)(c)
(2009) (“Measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant”); State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v.
Ashby, 823 S.W.2d 166, 170 (Tenn. 1991). The evidence does not preponderate against the
trial court’s finding that the offense required a term of confinement. See T.C.A. § 40-35-
210(b)(4) (2009). Thus, and because the Defendant has failed to demonstrate that full
probation will subserve the ends of justice and the best interests of both the public and
himself, we conclude the trial court properly denied the Defendant full probation, ordering
him to serve one year of the ten-year sentence in confinement and the remainder in a
Community Corrections program. See Blackhurst, 70 S.W.3d at 97. The Defendant is not
entitled to relief on this issue.

                                               5
                                     III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that the
trial court properly sentenced the Defendant. As such, we affirm the trial court’s judgment.


                                                   ________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




                                             6
