         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 22, 2005

         STATE OF TENNESSEE v. MONSANTO UNDREZ CANNON

                       Appeal from the Circuit Court for Bedford County
                          No. 15402 & 15403      Lee Russell, Judge



                    No. M2005-01258-CCA-R3-CD - Filed January 4, 2006


The Defendant pled guilty to and was convicted of misdemeanor casual exchange of marijuana not
in excess of one-half ounce, Class E felony possession with intent for resale of not less than one-half
ounce nor more than ten pounds of marijuana, and possession of a handgun as a felon, also a Class
E felony. The Defendant was sentenced to eleven months and twenty-nine days for his misdemeanor
conviction, and three years as a Range II, multiple offender for each felony conviction. The trial
court ordered the two felony conviction sentences to be served consecutively, for an effective six
year term of incarceration. On appeal, the Defendant challenges his sentence, claiming the court
erred by: 1) imposing consecutive sentences, and 2) denying alternative sentencing. We affirm the
judgments of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH , JJ., joined.

Fannie J. Harris, Nashville, Tennessee, for the appellant, Monsanto Undrez Cannon.

Paul G. Summers, Attorney General and Reporter; Elizabeth Marney, Assistant AttorneyGeneral;
Mike McCown, District Attorney General; and Michael D. Randles and Ann Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                             OPINION


                                               FACTS

        The Defendant, Monsanto Undrez Cannon, pled guilty to drug and weapon possession
offenses following an undercover drug operation conducted in April of 2003 in Shelbyville. The
factual basis for the convictions that led to the sentences at issue in this case was presented by the
State at the plea acceptance hearing, and is paraphrased as follows. A confidential informant in the
employ of the Seventeenth Judicial District Drug Task Force contacted authorities and stated that
he believed he could make a purchase of marijuana from the Defendant. On April 17, 2003, this
confidential informant was sent to the Defendant’s place of employment, a barber shop in
Shelbyville, to make the purchase. The Defendant led the informant to a backroom where the
Defendant sold the informant what he claimed was one-half ounce of marijuana for $50. The
informant noticed that the duffle bag from which the Defendant retrieved the bag of marijuana
appeared to contain several more ounces of marijuana. The informant left and immediately reported
to the Drug Task Force agents, who collected the marijuana and a concealed recording devise. The
substance purchased by the informant was sent to the crime lab, which verified it was marijuana, but
a few grams less than one-half ounce.

        The following day, April 18, 2003, members of the Drug Task Force returned to the
Defendant’s place of business and, in his presence, executed a search warrant. In the course of their
search they recovered several more small quantities of marijuana totaling slightly more than one
ounce, and a loaded nine millimeter pistol in a drawer adjacent to where the Defendant was standing.
The Defendant was advised of his rights and interviewed. The Defendant admitted that he had
engaged in the distribution of what he described as “small amounts of marijuana” over the last
several months. The State asserted that the Defendant also claimed in this interview that he
possessed the handgun for his own protection from other drug dealers.

        In December of 2003, a Bedford County grand jury returned two separate indictments against
the Defendant. In Indictment number 15,402, the Defendant was charged with one count of sale of
not less than one-half ounce nor more than ten pounds of marijuana, and one count of delivery of the
same amount of marijuana, both acts occurring on April, 17, 2003. See Tenn. Code Ann. § 39-17-
417. Indictment number 15,403 charged the Defendant with possession with intent to sell not less
than one-half-ounce nor more than ten pounds of marijuana, and one count of possession with intent
to deliver the same amount, both acts occurring on April 18, 2003. See id. The Defendant was
further charged with possession of a handgun by a convicted felon. See Tenn. Code Ann. § 39-17-
1307.

        A plea acceptance hearing was conducted in April of 2004, during which the Defendant pled
guilty to an amended charge of misdemeanor casual exchange in Indictment number 15,402,1 see
Tenn. Code Ann. § 39-17-418, and also pled guilty to all three counts as charged in Indictment
number 15,403. At the hearing, the Defendant stated that he disagreed with the State’s version of
the factual basis of the cases only in that he believed he told the Drug Task Force that he had been
dealing drugs for a few weeks, not a few months, and he possessed a handgun for protection from
robbers, not other drug dealers. The court, after ensuring the Defendant’s pleas were knowing and
voluntary, accepted the guilty pleas. The court merged the two drug possession charges in



         1
          The record reveals that count two of Indictment 15,402, delivery of marijuana was dismissed, and count one,
sale of marijuana, was reduced to misdemeanor casual exchange because the amount of marijuana sold was under one-
half ounce.

                                                        -2-
Indictment number 15,403 into one, and entered judgments of conviction for casual exchange,
possession of marijuana with intent to sell, and possession of a handgun by a felon.

        The Defendant submitted “open pleas,” whereby he agreed that his sentences for the three
convictions would be determined by the court at a subsequent hearing. The Defendant received a
sentencing hearing in April of 2004, during which he presented testimony to show how he had begun
to turn his life around. The Defendant testified that he was a licensed barber, gainfully employed,
and earning between $350 and $400 a week. He had a fiancé, whom he had been dating for three
years, and they were considering marriage. The Defendant admitted he had four children with four
different women, to none of whom he had been married. He admitted that he was behind in child
support, but insisted that he was providing for his children, even those for whom he had no court
ordered obligation. The Defendant further stated that he was currently attending church regularly
and keeping good company.

       The Defendant further admitted that he dealt drugs in the past because it was an easy way to
make money, and that he had himself used marijuana, as recently as January of 2004. He also
admitted to having a criminal record and having violated the terms of probation and parole in the
past. The court, several times during the course of the Defendant’s testimony, questioned him
regarding whether one of his past felony convictions involved a handgun, and the Defendant’s
answers were, at best, evasive.

         Several character witnesses testified on behalf of the Defendant, including Mr. Robert
O’Neal, the owner of a barber shop where the Defendant was currently employed. Mr. O’Neal
stated that he first met the Defendant in church and had known him for four years. He concluded
that while the Defendant had made mistakes in the past, he was now reformed and could better pay
his debt to society by remaining outside of prison as an employed and productive member of the
community. Rev. George Acklin, the Defendant’s pastor, characterized the Defendant as remorseful
and a changed man. He also noted that the Defendant regularly attended Wednesday evening Bible
Study. Ms. Helen Cannon, the Defendant’s mother, stated that the Defendant had changed for the
better in recent months, and Ms. Tamela Haislip, the Defedant’s fiance, admitted that while she was
unaware of the extent of the Defendant’s prior criminal history, she nonetheless was willing to
support him in his rehabilitation.

           At the conclusion of the sentencing hearing, the court first noted that the Defendant was
a Range II, multiple offender, and then found that two enhancement factors applied: number two,
the Defendant had a previous history of criminal convictions in addition to those necessary to
establish his range, and number nine, the Defendant had previously failed to comply with conditions
of a sentence involving release into the community. See Tenn. Code Ann. § 40-35-114(2) and (9)
(2003).2 Accordingly, the court enhanced the Defendant’s sentence for the Class E felony


         2
          W e note that the legislature has recently amended several provisions of the Criminal Sentencing Reform Act
of 1989, said changes becoming effective June 7, 2005. However, the Defendant’s crimes in this case, as well as his
                                                                                                         (continued...)

                                                         -3-
convictions from the presumptive two years up to three years, and imposed eleven months and
twenty-nine days for the misdemeanor conviction. The Court further found that no mitigation factors
were applicable.3

        Regarding consecutive service, the court found that although the Defendant was entitled to
the “presumption” in favor of concurrent sentencing, because he had an “extensive criminal record,”
consecutive sentencing was warranted. Accordingly, the court ordered that the two felony conviction
sentences be served consecutively for an effective six year sentence.4 As to manner of service, the
court stated that the Defendant’s lack of potential for rehabilitation and lack of candor on the witness
stand factored heavily in its decision to deny alternative sentencing. Accordingly, the Defendant was
ordered to serve six years in the custody of the Tennessee Department of Correction. This appeal
followed.

                                            ANALYSIS
        On appeal, the Defendant raises two separate issues pertaining to his sentence: 1) the court
erred in ordering consecutive service of his two felony conviction sentences; and 2) the court erred
in denying alternative sentencing.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced at the trial and the sentencing hearing; (b) the pre-sentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the parties
on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-
113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b) (2003); State v. Imfeld, 70 S.W.3d
698, 704 (Tenn. 2002). To facilitate appellate review, the trial court is required to place on the
record its reasons for imposing the specific sentence, including the identification of the mitigating
and enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and balanced in
determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

        Upon a challenge to the sentence imposed, 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) (2003). However, this presumption “is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all


         2
          (...continued)
sentencing, predate the effective date of these amendments. Therefore, this case is not affected by the 2005 amendments,
and the statutes cited in this opinion are those that were in effect at the time the instant crimes were committed.

         3
             The Defendant does not allege in this appeal that his sentences were excessive.

         4
           The court elected to run the eleven month and twenty-nine day misdemeanor conviction sentence concurrently
with the six year felony sentence.

                                                           -4-
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review
reflects that the trial court followed the statutory sentencing procedure, that the court 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 the presumption is applicable, and we may not modify the sentence even if we
would have preferred a different result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim.
App. 1991). We will uphold the sentence imposed by the trial court if (1) the sentence complies with
the purposes and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are
adequately supported by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The
burden of showing that a sentence is improper is upon the appealing party. See Tenn. Code Ann.
§ 40-35-401(2003) Sentencing Commission Comments; Arnett, 49 S.W.3d at 257.

I. Procedural Issue
         We begin our analysis by addressing a procedural issue. This appeal is before this Court
pursuant to an order, issued by the trial court, granting a delayed appeal. While not fully explained
in the record on appeal, it appears that the Defendant petitioned for and was granted post-conviction
relief in the form of a delayed appeal. See Tenn. Code Ann. § 40-30-113. In its appellate brief, the
State argues that because the Defendant failed to include in the record on appeal his petition for post-
conviction relief, a transcript of the hearing, and a statement as to how he was denied the right to
appeal, the appellate record in this appeal is insufficient to permit meaningful review and is “fatal
to the defendant’s effort to confer jurisdiction on this Court to entertain the appeal.”

        However, we find that the record before us is adequate for meaningful review of the
Defendant’s sentences on direct appeal. The trial court’s order granting the delayed appeal is in the
record. We conclude that we have jurisdiction over the appeal before us in this case and will proceed
to address the merits of the claims asserted therein.

II. Consecutive Sentencing
        In his first issue on appeal, the Defendant asserts that the trial court erred in ordering him to
serve his two felony sentences consecutively. To support this claim, the Defendant argues that the
court failed to make adequate findings demonstrating that he had an extensive criminal record
sufficient to support the imposition of consecutive sentences. We disagree.

        We begin by noting that it is within the sound discretion of the trial court whether to impose
consecutive or concurrent sentences. See State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App.
1984). A Tennessee court may order consecutive sentences in cases where it finds any of seven
statutorily enumerated criteria to be applicable “by a preponderance of the evidence.” Tenn. Code
Ann. § 40-35-115(b). In addition to these criteria, consecutive sentencing is also subject to the
general sentencing principles that the overall sentence imposed “should be no greater than that
deserved for the offense committed,” that it “should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed,” and that the defendant’s “potential for
rehabilitation” be considered. Tenn. Code Ann. § 40-35-103(2), (4) and (5). Additionally, we are



                                                  -5-
advised that “the aggregate maximum of consecutive terms must be reasonably related to the severity
of the offenses involved.” Tenn. Code Ann. § 40-35-115 Sentencing Commission Comments.

       In the case at hand, the trial court found one consecutive sentencing criteria applied: the
Defendant was “an offender whose record of criminal activity is extensive.” Tenn. Crim. App. § 40-
35-115(b)(2). The court found that the Defendant’s extensive criminal history warranted consecutive
sentencing. The court explained:

        If you look at his age, he began to be in serious difficulties immediately as an adult
        at the age of 18. These continued through 1998 and then these most recent matters
        to which he has entered pleas of guilty. So he has an extensive criminal record
        through ‘98, and, therefore, I believe that the presumption has been overcome to this
        extent.

Based on its findings of fact, the court imposed consecutive sentences.

        We conclude that the record contains sufficient evidence of the Defendant’s extensive prior
criminal history to support the court’s imposition of consecutive sentences based on an “extensive”
criminal record. See Tenn. Code Ann. § 40-35-115(b)(2). The Defendant’s effective sentence of
six years is the result of his pattern of continued criminal activity as well as his obvious
unwillingness to reform when given rehabilitation opportunities outside of prison. The Defendant
was twenty-nine at the time of sentencing. Starting at age eighteen, and continuing up to one month
before entering his guilty pleas to the charges at issue in this case, the Defendant had been regularly
engaged in illegal activity. The pre-sentence report indicates the Defendant has accumulated six
felony convictions and three misdemeanor convictions, including those at issue in this case. While
the Defendant argues the trial court erred by considering his current criminal convictions in imposing
consecutive sentences, he cites no authority to support this proposition. Contrary to the Defendant’s
assertion, case law holds that current offenses may indeed be used in determining criminal history
for purposes of consecutive sentencing. See State v. Cummings, 868 S.W.2d 661, 667 (Tenn. Crim.
App. 1992) (holding that the defendant, who had no criminal record other than his convictions in the
case at issue, was an offender whose criminal record was extensive for consecutive sentencing
purposes). Accordingly, this issue is without merit.

III. Manner of Service
        In the Defendant’s final issue on appeal, he argues that the trial court erred in denying his
request for alternative sentencing. In support of this assertion, the Defendant argues that he is
entitled to a favorable presumption of eligibility for alternative sentencing, that he has “turned his
life around,” and that his past failures to follow the conditions for community release were four
years ago and he has since changed. We are unpersuaded by the Defendant’s arguments.

        A defendant who does not possess a criminal history showing a clear disregard for society’s
laws and morals, who has not failed past rehabilitation efforts, and who “is an especially mitigated
or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate


                                                 -6-
for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6) (2003). See also State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The following
considerations provide guidance regarding what constitutes “evidence to the contrary” which would
rebut the presumption of alternative sentencing:

        (A) Confinement is necessary to protect society by restraining a defendant who has
        a long history of criminal conduct;
        (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
        confinement is particularly suited to provide an effective deterrence to others likely
        to commit similar offenses; or
        (C) Measures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

       Additionally, as stated above, the principles of sentencing also require that the total 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. See Tenn. Code Ann.
§ 40-35-103(2), (4). The court should also consider the defendant’s potential for rehabilitation or
treatment in determining the appropriate sentence. See id. § 40-35-103(5).

       In this case, contrary to the Defendant’s assertion on appeal, the trial court correctly held that
the Defendant did not enjoy a presumption in favor of alternative sentencing because he was a
multiple offender. See Tenn. Code Ann. § 40-35-102(6) (2003). Additionally, the court made the
following findings:
                The factor that appears to me most significant in this case is the one set out
       in 40-35-103(5), and that is his potential or lack of potential for rehabilitation,
       including the risk of committing another crime while on probation.
                We see from his record that he has had deferred judgments taken away from
       him. He’s had parole revoked. He’s had community corrections revoked. It does not
       appear from these facts that he has a great deal of potential for rehabilitation. We see
       a lengthy period of misconduct. It began when he was 18 in 1993 and it’s continued
       almost to the present time, at least through January when he was still using illegal
       drugs.

The court also noted that it was “concerned by [the Defendant’s] lack of candor during his
testimony,” stating that it did “not believe that [the Defendant] was telling the truth” concerning the
details of his past convictions. While acknowledging that the Defendant was able to have
“outstanding people come testify for him,” the court nonetheless concluded that the Defendant
“simply has a tendency to take shortcuts, and he has a pattern with drugs and he has a pattern with
weapons that I think suggest a lack of potential for rehabilitation at the present time.”




                                                  -7-
         We find sufficient evidence to support the trial court’s conclusion that measures less
restrictive than confinement have proved unsuccessful for the Defendant in the past, and a sentence
of confinement is therefore appropriate. See Tenn. Code Ann. § 40-35-103(1)(C). The Defendant
has previously violated the conditions of deferred judgment and several forms of alternative
sentencing, including parole and community corrections. The Defendant’s record supports the trial
court’s finding that the Defendant is a poor candidate for an alternative sentence.

        The trial court also found the Defendant lacked candor when he addressed the court during
the sentencing hearing. This Court has previously held that “our Sentencing Act has framed the basis
of individualized alternative sentencing determinations on the potential for rehabilitation of the
defendant. In this context, the untruthfulness of the defendant becomes an important consideration
for the trial court.” State v. Dowdy, 894 S.W.2d 301, 305-06 (Tenn. Crim. App. 1994).
Accordingly, it was within the trial court’s discretion in this case to evaluate the Defendant’s honesty
and candor, as well as his propensity for committing drug and weapon violations, when determining
the Defendant’s prospects for rehabilitation.

         In short, we find the Defendant’s extensive criminal history, lack of candor, and frequent
failure to successfully complete previous forms of alternative sentencing all support the trial court’s
determination that the Defendant lacked potential for rehabilitation. See Tenn. Code Ann. § 40-35-
103(5). Additionally, after considering the Defendant’s criminal record as a whole, we conclude that
a six year sentence of confinement in this case is consistent with the sentencing principles and
supported by relevant facts and circumstances. Accordingly, the trial court did not err in denying
the Defendant alternative sentencing. This issue is without merit.

                                          CONCLUSION
         Based on the foregoing reasoning and authorities, we conclude that the trial court did not err
in its imposition of consecutive sentencing or in denying an alternative sentence. The judgments of
the trial court are affirmed.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




                                                  -8-
