         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               FILED
                            AT KNOXVILLE
                                                               October 7, 1999

                           JUNE 1999 SESSION                Cecil Crowson, Jr.
                                                           Appellate Court Clerk




STATE OF TENNESSEE,           *    C.C.A. # 03C01-9806-CC-00214

           Appellee,          *    BLOUNT COUNTY

VS.                           *    Honorable D. Kelly Thomas, Jr., Judge

LEONARD C. HARVEY,            *    (Delivery of Schedule II Controlled
                                   Substance--three counts;
                                   Delivery of Counterfeit Controlled
                                   Substance--one count)
            Appellant.        *



FOR THE APPELLANT:                 FOR THE APPELLEE:

JOHN E. HERBISON                   PAUL G. SUMMERS
2016 Eighth Avenue South           Attorney General & Reporter
Nashville, TN 37204
                                   MICHAEL J. FAHEY, II
                                   Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243

                                   MICHAEL L. FLYNN
                                   District Attorney General

                                   PHILIP H. MORTON
                                   Assistant District Attorney
                                   363 Court Street
                                   Maryville, TN 37804-5906




OPINION FILED: _______________




AFFIRMED



JOHN EVERETT WILLIAMS, Judge
                                  OPINION

      The defendant, Leonard C. Harvey, appeals the sentence imposed by the

Blount County Criminal Court pursuant to his guilty plea to three counts of

delivery of a Schedule II controlled substance and one count to delivery of a

counterfeit controlled substance. Two counts involved delivery of less than 0.5 of

a gram of cocaine and constitute Class C felonies; one count involved delivery of

more than 0.5 of a gram of cocaine, a Class B felony. The remaining count,

involved delivery of a counterfeit controlled substance, a Class E felony. The

defendant received an effective sentence of eight years in the Department of

Correction as a Range I, standard offender, and now contends that the trial court

erred in denying him probation or other alternative sentencing. We AFFIRM the

sentences imposed by the trial court.



                               Procedural History

      On May 11, 1998, the trial court accepted defendant’s guilty plea and

imposed an effective eight-year sentence. On May 14, 1998, that court held a

sentencing hearing and ordered service in the Department of Correction. The

defendant appeals the manner of service.



                                 BACKGROUND

      The defendant is twenty-five years old, unmarried, unemployed, and has

one child. Raised in Michigan, he lives in Tennessee to be near his son, who

resides with his mother in Alcoa, Tennessee. For over a year and a half the

defendant has been a transient living on the streets. He had no place to live at

the time of the hearing.



      The defendant served seventeen days in jail after his first arrest and

admitted using more crack cocaine while on bond. The defendant denies a

current drug problem. His evaluation for suitability for placement in community

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corrections reveals that he does not appear to be in need of any alcohol and/or

drug treatment. The defendant has a high school education and has recently

worked as a laborer for a construction company. The defendant has no prior

criminal history.



                                      ANALYSIS

                          Denial of Alternative Sentencing

       When a defendant challenges the manner of service of a sentence, this

Court has a duty to conduct a de novo review of the sentence with a presumption

that the determinations made by the trial court are correct. See 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 the relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991).



       In conducting a de novo review of a sentence, this Court must consider:

(a) the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made in his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. “If our review reflects that the trial court

followed the statutory sentencing procedure, that it imposed a lawful sentence

after having given due consideration and proper weight to the factors and

principles set out under the sentencing law, and that the trial court’s findings of

fact are adequately supported by the record, then we may not modify the

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

805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).




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       The defendant concedes that the trial court followed the applicable

sentencing statutes and stated appropriate considerations. Because the

defendant pled guilty to a Class B felony, he is not presumed a suitable

candidate for alternative sentencing. See Tenn. Code. Ann. 40-35-102(6).

“When a defendant is not afforded that presumption of suitability for alternative

sentencing, the defendant bears the burden of establishing it [alternative

sentencing] will subserve the ends of justice and the best interest of both the

public and the defendant.” State v. Housewright, 982 S.W.2d 354, 357 (Tenn.

Crim. App. 1997).



       In the instant case, the trial court determined that alternative sentencing

would not serve the ends of justice. Specifically, the trial court based its denial of

alternative sentencing on the need to avoid depreciating the seriousness of the

offense. After review, we cannot find that the defendant’s offenses invoke the

standard established in prior case law and subsequently codified, see Tenn.

Code Ann. § 40-35-103(1)(B); State v. Cleavor, 691 S.W.2d 541 (Tenn. 1985), in

that they were not “especially violent, horrifying, shocking, reprehensible,

offensive, or otherwise of an excessive or exaggerated degree.” Cleavor, 691

S.W.2d at 543.



       However, we do not find the trial court’s denial of alternative sentencing

inappropriate because the defendant has failed to meet his burden. Since the

defendant was not presumed a suitable candidate for alternative sentencing, the

trial judge was vested with a “considerable degree of discretion within the

sentencing guidelines to determine the manner of service of the sentence.”

Housewright, 982 S.W.2d at 357. Accordingly, the trial court was reasonably

concerned with the number and temporal proximity of the instant offenses: both

factors underscore the seriousness of the defendant’s actions and evidence an

intent to continue criminal activity. The defendant’s admitted use of “crack”


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cocaine while on bond for his first arrest similarly adds weight to these concerns

and reflects negatively on the defendant’s capacity for rehabilitation. See Tenn.

Code Ann. § 103(5). This Court also notes that at the sentencing hearing the

defendant admitted to engaging in other cocaine transactions prior to his arrest

for the instant offenses.



       In support of his plea for alternative sentencing, the defendant argues that

he, prior to the four instant offenses, lacked a criminal history and that the

number of instant offenses was essentially determined by police and

prosecutors. These arguments are unpersuasive and fail to demonstrate that

the defendant is suitable for alternative sentencing. These arguments,

presented with no supporting authority, fall well short of meeting defendant’s

burden. For these reasons, we cannot conclude that the trial judge erred or

abused his discretion by denying an alternative to incarceration.



                                  CONCLUSION

       We AFFIRM the decision of the trial court.



                                          ______________________________
                                          JOHN EVERETT W ILLIAMS, Judge


CONCUR:




____________________________
JOHN H. PEAY, Judge




____________________________
DAVID G. HAYES, Judge




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