           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                           MARCH 1998 SESSION                   FILED
                                                              March 20, 1998
DEMETRIUS ROBERTSON,             *      C.C.A. # 02C01-9706-CR-00220
                                                             Cecil Crowson, Jr.
      Appellant,                 *      SHELBY COUNTY        Appellate C ourt Clerk


VS.                              *      Hon. Joseph Brown, Jr., Judge

STATE OF TENNESSEE,              *      (Possession With Intent to Sell)

      Appellee.                  *




For Appellant:                          For Appellee:

Russell J. Johnson                      John Knox Walkup
Attorney                                Attorney General & Reporter
5100 Poplar Avenue, 27th Floor
Memphis, TN 38137                       Marvin E. Clements, Jr.
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        Cordell Hull Building, Second Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        Kevin Rardin
                                        Asst. District Attorney General
                                        Criminal Justice Complex
                                        201 Poplar Avenue, Suite 301
                                        Memphis, TN 38103




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                                   OPINION

                  The defendant, Demetrius Robertson, entered a plea of guilt to

possession of a controlled substance with intent to sell. The trial court imposed a

sentence of split confinement: six months in jail followed by a three-year

probationary period.



                  In this appeal,1 the defendant argues that she should have been

granted an alternative sentence. We disagree. The judgment of the trial court is,

therefore, affirmed.



                  A search warrant for the defendant's apartment yielded 11.32 grams of

cocaine, scales, drug paraphernalia, and a nine millimeter handgun with nine live

rounds. The defendant, who had an eight-year-old child living in her residence,

explained that three men who resided with her for the purpose of protecting her and

her son from break-ins, were responsible for the presence of the illegal drugs and

other items seized by the police. The defendant complains that the trial court should

have granted immediate probation or placed her in a Community Corrections

program.



                  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


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          The Notic e of A ppe al wa s filed appr oxim ately e ighty d ays af ter the entry o f judg me nt. W ithin
sixty days of the judgment, the defendant had filed a petition to rehear. The state acknowledged on
the appeal that such petition may be treated as a Motion to Reduce Sentence under Rule 35(b), Tenn.
R. Crim . P. See State v. Irick, 861 S.W.2d 375 (Tenn. Crim. App. 1993). In the appeal of an order
pursua nt to Rule 3 5, the sco pe of rev iew is limited to abuse of discre tion. Id. Because the defendant
is not entitle d to re lief un der th e m ore f avor able s tand ard o f a dire ct ap pea l, as ind icate d by th is
opinion, sh e would n ot be entitled to relief unde r Rule 35 .

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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). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              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, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's application for

probation 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, 286 (Tenn. 1978).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-

102(6). With certain statutory exceptions, none of which apply here, probation must

be automatically considered by the trial court if the sentence imposed is eight years

or less. Tenn. Code Ann. § 40-35-303(a), (b).



              Alternative sentencing issues must be determined by the facts and

circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.


                                           3
1986). "[E]ach case must be bottomed upon its own facts." State v. Taylor, 744

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



              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). That the defendant

meets the minimum requirements of the Community Corrections Act of 1985,

however, does not mean that she is entitled to be sentenced under the Act as a

matter of law or right. Taylor, 744 S.W.2d at 922. The following offenders are

eligible for Community Corrections:

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

              (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 2 [repealed], parts 1-3 and
              5-7 or 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

              (7) 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).



                                           4
              The defendant received a favorable presentence report. She is

employed and has taken steps to improve the quality of her life. Yet the defendant

has a prior criminal history as a juvenile. As an adult, she had been granted

probation on a prior felony offense. There was a relatively large amount of cocaine

found in her residence, thus the nature of this offense was serious. Finally, the trial

court determined that the defendant had been untruthful in a prior court appearance

about the degree of relationship with James "Black" W illiams, who was apparently

involved in illegal drug possession and who was one of the three individuals she had

allowed to reside in her home just prior to this offense.



              Under these circumstances, the trial judge is entitled to the

presumption of correctness in the imposition of sentence. We fully concur with his

assessment.



              Accordingly, the judgment is affirmed.



                                          _________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
Joe B. Jones, Presiding Judge



_____________________________
Jerry L. Smith, Judge




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