           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE              FILED
                            JANUARY 1998 SESSION
                                                          March 17, 1998

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk


STATE OF TENNESSEE,            *    C.C.A. # 03C01-9705-CR-00180

             Appellee,         *    SULLIVAN COUNTY

VS.                            *    Honorable Phyllis E. Miller, Judge

GARY LYNN SMITH,               *    (Introducing Drugs Into Penal
                                     Facility)
             Appellant.        *

                               *




For Appellant:                      For Appellee:

Gerald L. Gulley                    John Knox Walkup
P.O. Box 1708                       Attorney General & Reporter
Knoxville, TN 37901-1798
(on appeal only)                    Timothy Behan
                                    Assistant Attorney General
Richard A. Tate                     450 James Robertson Parkway
Assistant Public Defender           Nashville, TN 37243-0493
P.O. Box 839
Blountville, TN 37617               Barry Staubus
                                    Assistant District Attorney General
                                    P.O. 526
                                    Blountville, TN 37617



OPINION FILED: _____________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Gary Lynn Smith, pled guilty to introducing drugs into a

penal institute, a Class C felony. The trial court imposed a three-year sentence to

be served in the Department of Correction. In this appeal of right, the defendant

claims the trial court erred by denying an alternative sentence.



              We affirm the judgment of the trial court.



              On February 14, 1996, the defendant was convicted of DUI, second

offense, and received a sentence including work release. W hen he reported to jail

to serve a portion of his sentence, a plastic baggie containing marijuana was

discovered in his shoe.



              At the time of the offense, the defendant was working at Winn-Dixie

and was in training for an assistant manager position. The presentence report

established that the defendant has prior convictions for perjury, driving on a revoked

license, DUI, public intoxication, unlawful use of drug paraphernalia, disorderly

conduct, and several traffic offenses. The defendant admitted to smoking marijuana

in the past but claimed to have quit by the time the sentence was imposed.



              In denying probation or Community Corrections, the trial judge ruled as

follows:

              You have been released on a suspended sentence
              seven times in the past ... and you were serving
              minimum, mandatory time on work release, and yet, ...
              you violated the law. ... You have several pages of
              misdemeanor offenses .... I don't know how you can be
              rehabilitated because you had all of these other chances.
              ... I am denying probation. ... [T]he only other alternative
              is putting you in Community Corrections. ... [Y]ou have
              the same problems [as] at the jail except you are not
              locked up at night like you are here in the jail. You see,

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              we have already tried something, ... giving you work
              release. ... Nothing has worked for you in the past. Full
              probation didn't work. Work release didn't work. That's
              the same as Community Corrections. I am just going to
              deny alternative sentencing of any form ....


              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

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

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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).



              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(1). 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 he is entitled to be sentenced under the Act as a

matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).

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.

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Tenn. Code Ann. § 40-36-106(a).



              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.

1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at

922. We cannot conclude the trial court erred by denying an alternative sentence.



              Initially, the defendant would be eligible for either probation or

Community Corrections. Because, however, he was unable to comply with the

terms of his work release by committing the present offense, "measures less

restrictive than confinement have ... recently been applied unsuccessfully to the

defendant." Tenn. Code Ann. § 40-35-103(C). Moreover, the defendant received

suspended sentences several times in the past and yet persisted in his unlawful

behavior. Id. Thus, the trial court had a sound basis for denying probation or

Community Corrections.



              A Community Corrections sentence might have allowed the defendant

the opportunity for treatment for his drug problems. He claimed remorse and a

genuine desire to "get his life back on track." See State v. Bingham, 910 S.W.2d

448, 453 n.2 (Tenn. Crim. App. 1995). Yet, the trial judge made the appropriate

findings of fact and considered the purposes and principles of the Sentencing

Reform Act. In Ashby, our supreme court encouraged the grant of considerable

discretionary authority to our trial courts in matters such as these. 823 S.W.2d at

171. "It is not the policy or purpose of this court to place trial judges in a judicial

straight-jacket in this or any other area, and we are always reluctant to interfere with

their traditional discretionary powers." Id. at 171. In our view, the defendant has not

met his burden of showing that the trial court erred by denying an alternative


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sentence.



            Accordingly, the judgment of the trial court is affirmed.



                                        __________________________________
                                        Gary R. Wade, Judge

CONCUR:



________________________________
William M. Barker, Judge



________________________________
Curwood Witt, Judge




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