         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 7, 2004

               STATE OF TENNESSEE v. LATWAN R. COLEMAN

                Direct Appeal from the Criminal Court for Davidson County
                 Nos. 2003-A-280, 2003-A-265    Cheryl Blackburn, Judge



                     No. M2003-03055-CCA-R3-CD - Filed March 8, 2005

Defendant, Latwan R. Coleman, pled guilty to possession of over 0.5 grams of cocaine with intent
to sell, a Class B felony, in case number 2003-A-265, and to sale of less than 0.5 grams of cocaine,
a Class C felony, in case number 2003-A-280. The plea agreement contained a recommended
sentence of nine years for the Class B felony conviction and a sentence of three years for the Class
C felony conviction. Defendant’s request for community corrections was left for the trial court to
determine. Following a sentencing hearing, the trial court denied Defendant’s request for a
community corrections sentence, and ordered Defendant to serve the recommended sentences in
confinement. The trial court ordered the sentences to be served concurrently for an effective sentence
of nine years. On appeal, Defendant argues that the trial court erred in denying his request that he
be sentenced to community corrections rather than incarceration. After a review of the record, we
affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Mike J. Urquhart, Nashville, Tennessee, for the appellant, Latwan R. Coleman.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                             OPINION

        At the sentencing hearing, Defendant’s mother, Brenda Scranton, testified that Defendant had
experienced behavioral problems from an early age and had a learning disability. Ms. Scranton said
that Defendant’s prior unsuccessful attempts at probation and community corrections were caused
by his refusal to acknowledge that he had any mental or drug related problems and his failure to seek
help for his drug addiction. Ms. Scranton believed, however, that Defendant was ready to accept
help with his problems and could successfully participate in a community corrections program if the
terms of his release included a mental health treatment plan.

        Defendant acknowledged that he had been on probation three times prior to the current
offenses and that he had failed to comply with his probationary terms each time, primarily because
he “caught a new charge.” Defendant also attributed his violation of his prior community corrections
sentence to his unwillingness to participate in the program. Defendant said, however, that his drug
use was the cause of his criminal behavior, and he was willing to accept help for his addiction.
Defendant admitted that he had only been to one AA meeting during the fifteen months he was
incarcerated on the current offenses. Defendant said that he generally missed the meetings because
he was asleep. Defendant also said that he attempted to attend classes to obtain his G.E.D. while he
was incarcerated, but was transferred to a new facility before he could start the program. Defendant
admitted that his probation sentence for one of the misdemeanor assault convictions required him
to attend anger management classes, but that he never attended any of the classes.

        According to the pre-sentencing report, Defendant has accumulated approximately twenty-
four convictions over a nine-year period including three misdemeanor assault convictions, one felony
weapons conviction, one misdemeanor weapons conviction, three convictions of the sale of cocaine
over 0.5 grams, three simple possession convictions involving cocaine and marijuana, and various
other misdemeanor convictions. The report indicates that Defendant was placed on probation at least
three times and community corrections once, but continued to commit criminal offenses while
serving his alternative sentences.

        When a defendant challenges the length or the manner of service of his or her sentence, this
Court must 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); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn.
2002). This presumption, however, is contingent upon an affirmative showing in the record that the
trial court considered the sentencing principles and all relevant facts and circumstances. State v.
Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). If the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).

        In making its sentencing determinations the trial court must consider: (1) the evidence
presented at the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct;
(5) any appropriate enhancement and mitigating factors; (6) the defendant’s potential or lack of
potential for rehabilitation or treatment; and (7) any statements made by Defendant in his own
behalf. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Williams, 920 S.W.2d 247, 258 (Tenn.
Crim. App. 1995). The defendant bears the burden of showing that his sentence is improper. Tenn.
Code Ann. § 40-35-401(d) Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).

       Defendant was convicted of one Class C felony and one Class B felony. Although a
defendant is normally entitled to a presumption of being a favorable candidate for alternative


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sentencing options if convicted of a Class C felony, this presumption does not exist for Defendant
because he was also convicted of a Class B felony. See Tenn. Code Ann. § 40-35-102(6). Because
Defendant was convicted of a drug-related, non-violent felony offense, however, he is eligible for,
but not automatically entitled to, a community corrections sentence. Id. § 40-36-106(a); State v.
Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The purpose of the Community Corrections Act
of 1985 is 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.

        Defendant is not eligible to be placed on community correction under the “special needs”
provision of Tennessee Code Annotated section 40-36-106(c). Before being placed in community
corrections under this provision, an offender must first be eligible for regular probation. State v.
Cowan, 40 S.W.3d 85, 86 (Tenn. Crim. App. 2000) (citations omitted); State v. Kendrick, 10 S.W.3d
650, 655 (Tenn. Crim. App. 1999) Because Defendant’s nine-year sentence for his Class B felony
conviction renders him ineligible for probation, he does not qualify for community corrections
consideration under the special needs provision. Tenn. Code Ann. § 40-35-303(a).

       Thus, Defendant must meet the following minimum eligibility criteria. The following
offenders are eligible for community corrections:

       (A) Persons who, without this option, would be incarcerated in a correctional
           institution;
       (B) 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 13, parts 1-5;
       (C) Persons who are convicted of nonviolent felony offenses;
       (D) Persons who are convicted of felony offenses in which the use or possession of
           a weapon was not involved;
       (E) Persons who do not demonstrate a present or past pattern of behavior indicating
           violence;
       (F) Persons who do not demonstrate a pattern of committing violent offenses.

Tenn. Code Ann. §§ 40-36-106(a)(1)(A)-(E).

       The Community Corrections Act does not provide that all offenders who meet these
requirements are entitled to such relief. State v. Grandberry, 803 S.W.2d 706, 707 (Tenn. Crim.
App. 1990). Instead, the eligibility criteria is interpreted as a minimum standard to guide the court’s
determination of eligibility under the Act.

       The trial court initially expressed concern that Defendant’s prior misdemeanor assault
convictions coupled with his weapons convictions evidenced a pattern of behavior indicating
violence that would render him ineligible for participation in community corrections. See Tenn. Code
Ann. § 40-36-106(a)(1)(E). Nonetheless, the trial court based its denial of Defendant’s request for
community corrections on his extensive criminal history, his previously unsuccessful completion of


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the terms of sentences involving probation and community corrections, and his failure to
acknowledge and accept responsibility for his drug addiction.

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant with a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Id. § 40-35-103(1); see also Ashby,
823 S.W.2d at 169. Additionally, a trial court should consider the defendant’s potential or lack of
potential for rehabilitation when determining if an alternative sentence would be appropriate. Tenn.
Code Ann. § 40-35-103(5). A trial court is in the best position to determine a defendant’s
amenability to community corrections because of its ability to observe the defendant’s demeanor and
characteristics first hand. State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997).

         Defendant has not met his burden of establishing his entitlement to a community corrections
sentence. Defendant has a long history of criminal conduct rendering confinement necessary to
protect society from additional criminal behavior by Defendant. Furthermore, measures less
restrictive than confinement, including probation and community corrections, have been repeatedly
and unsuccessfully applied to Defendant.

                                          CONCLUSION

        Accordingly, we conclude that Defendant has failed to meet his burden of demonstrating that
his sentence is improper. The judgment of the trial court is affirmed.

                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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