        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                         APRIL SESSION, 1997             July 11, 1997

                                                    Cecil W. Crowson
STATE OF TENNESSEE,         )                     Appellate Court Clerk
                                   C.C.A. NO. 01C01-9604-CC-00169
                            )
      Appellee,             )
                            )
                            )      CHEATHAM COUNTY
VS.                         )
                            )      HON. ROBERT E. BURCH
LUTCHER O. MILES and        )      JUDGE
AMBER DAWN MILES,           )
                            )
      Appellants.           )      (Sentencing)


               ON APPEAL FROM THE JUDGMENT OF THE
                CIRCUIT COURT OF CHEATHAM COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

LIONEL R. BARRETT, JR.             JOHN KNOX W ALKUP
W ashington Square Two-Suite 417   Attorney General and Reporter
222 Second Avenue, North
Nashville, TN 37201                GEORGIA BLYTHE FELNER
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243

                                   DAN ALSOBROOKS
                                   District Attorney General

                                   JAMES W. KIRBY
                                   Assistant District Attorney General
                                   105 Sycamore Street
                                   Ashland City, TN 37015



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                OPINION

      This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appellate

Procedure. Pursuant to a plea agreement, each Defendant entered pleas of

guilty to six counts of selling various drugs. The plea agreement for each

Defendant called for an effective sentence of eight years in the Department of

Correction, with the manner of service of the sentence left to the discretion of the

trial court. The trial court ordered that each Defendant would serve one year in

the county workhouse, with the balance of the sentence to be served in the

com munity corrections program. On appeal, each Defendant argues that the trial

court erred in ordering that one year of the sentence be served in confinement.

W e affirm the judgment of the trial court.



      The Defendants were jointly indicted for six counts of conspiring to sell and

selling cocaine, LSD and marijuana. Each Defendant was convicted on a plea

of guilty of one count of Class B felony sale of cocaine, two counts of Class B

felony sale of LSD, one count of Class C felony sale of cocaine, and two counts

of Class E felony sale of marijuana.          Each Defendant received concurrent

sentences of eight years for each Class B felony conviction, four years for each

Class C felony conviction and one year for each Class E felony conviction. Also,

each Defendant was fined a total of $9,500. After conducting a sentencing

hearing, the trial judge ordered each Defendant to serve one year in the county

workhouse with the balance of the sentence to be served in community

corrections. Both Defendants were determined to be immediately eligible for

work release. On appeal, each Defendant argues that the trial court erred or



                                        -2-
abused his discretion in ordering one year of the sentence to be served in

confinement.



      W hen an accused challenges the length, range, or 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.

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 circum stances." 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 argum ents as to

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

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

that the Defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals 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).

                                        -3-
      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 of evidence to the contrary.” Tenn.

Code Ann. § 40-35-102(6); see State v. Davis, 940 S.W .2d 558, 560 (Tenn.

1997). Our sentencing law also provides that “convicted felons committing the

most severe offenses, possessing criminal histories evincing a clear disregard for

the laws and morals of society, and evincing failure of past efforts at

rehabilitation, shall be given first priority regarding sentences involving

incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a Defendant sentenced

to eight years or less who is not an offender for whom incarceration is a priority

is presumed eligible for alternative sentencing unless sufficient evidence rebuts

the presumption. However, the act does not provide that all offenders who meet

the criteria are entitled to such relief; rather, it requires that sentencing issues be

determined by the facts and circumstances presented in each case. See State

v. Taylor, 744 S.W .2d 919, 922 (Tenn. Crim. App. 1987).



      Additionally, the principles of sentencing reflect that the 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.    Tenn. Code Ann. § 40-35-103(3)-(4).           The Court should also

consider the potential for rehabilitation or treatment of the Defendant in

determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5).



      The basic facts as gleaned from the sentencing hearing are that the

Defendant Amber Dawn Miles was employed at a pet store. Each of her drug

convictions and each conviction of her husband, Lutcher O. Miles, were the result

                                          -4-
of controlled sales of drugs made by the Defendants to Ms. Miles’ supervisor at

the pet store, who was serving as an undercover informant for local law

enforcement authorities. Amber Dawn Miles testified that her supervisor, the

informant, pressured her into obtaining the drugs for him and in exchange,

promised her additional working hours at the store. She and her husband

testified that these were the only drug sales they had ever made and that neither

of them profited from the sales but rather were doing them as a favor for Ms.

Miles’ supervisor at the pet store.    The various sales took place during an

approximate six week period of time.



      The presentence report reflects that Lutcher Miles was twenty-two years

old, dropped out of school in the ninth grade, and later earned his GED. His

employment history was apparently good and he had no prior criminal record of

convictions, although he reported that he had been a user of marijuana.



      The presentence reports reflects that Amber Dawn Miles was twenty-one

years old, dropped out of school in the eleventh grade, and later earned her

GED. Her employment record was apparently good. She had been arrested on

more than one occasion for shoplifting and had one conviction which resulted in

com munity service work and six months probation.         She was serving this

sentence on probation when the drug offenses occurred.



      Both Defendants expressed remorse for what they had done, had good

family support and employment opportunities in a family drywall business. The

trial judge noted that he was not sure that the Defendants understood the “deadly

seriousness of their actions.”

                                       -5-
      Because each Defendant was convicted of a Class B felony, neither

Defendant enjoyed the presumption of being a favorable candidate for alternative

sentencing options. See Tenn. Code Ann. § 40-35-102(6). Nevertheless, the

trial judge determined that confinement in the penitentiary was not warranted. In

ordering a period of confinement in the county jail, the trial judge considered the

number of offenses committed, the time frame during which they were committed,

the variety and type of drugs sold, the need for deterrence and the need to avoid

depreciating the seriousness of the offenses.



      W e note that this record affirmatively shows that the trial court considered

the sentencing principles and all relevant facts and circumstances. As we have

previously noted, it is our duty to presume that the sentencing determinations

made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). W e

are unable to conclude that the trial judge erred or abused his discretion.



      The judgment of the trial court is affirmed.



                                 ___________________________________
                                 DAVID H. WELLES, JUDGE




                                        -6-
CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
CURWOOD W ITT, JUDGE




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