            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT JACKSON

                            DECEMBER 1999 SESSION
                                                                FILED
STATE OF TENNESSEE,                  *      C.C.A. # W1999-00258-CCA-R3-CD
                                                               February 2, 2000
      Appellee,                      *      HARDIN COUNTY Cecil Crowson, Jr.
                                                             Appellate Court Clerk
VS.                                  *      Hon. C. Creed McGinley, Judge

FREDDIE LEE CUNNINGHAM, *                   (Possession of a Controlled Substance with
                                            Intent to Manufacture, Deliver, or Sell)
      Appellant.                     *




For Appellant:                              For Appellee:

Richard W. DeBerry                          Paul G. Summers
Assistant District Public Defender          Attorney General and Reporter
24th Judicial District
117 North Forrest Avenue                    Clinton J. Morgan
Camden, TN 38320                            Assistant Attorney General
                                            Criminal Justice Division
                                            425 Fifth Avenue North
                                            Nashville, TN 37243-0493
                                            John Overton
                                            Assistant District Attorney General
                                            P.O. Box 484
                                            Savannah, TN 38372



OPINION FILED:__________________________


AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The defendant, Freddie Lee Cunningham, pled guilty to the

possession of more than .5 gram of crack cocaine with the intent to manufacture,
deliver, or sell, a Class B felony. Tenn. Code Ann. § 39-17-417(a)(4), (c)(1). The

trial court imposed a Range I sentence of eight years to be served in the

Department of Correction. Fines totaled $2,000.00.


              In this appeal of right, the single issue for review is whether the trial

court erred by denying an alternative sentence. We find no error and affirm the
judgment of the trial court.



              On August 9, 1998, Officer Shane Fisher of the Hardin County
Sheriff's Department stopped the vehicle the defendant was driving for a traffic

violation. The officer's dog indicated the presence of illegal drugs and a search

yielded 39 rocks of crack cocaine weighing approximately .6 gram. Although the

record includes the presentence report and a transcript of the guilty plea proceeding,

neither the state nor the defense presented any proof at the sentencing hearing.


              The defendant argues that the trial court erred by denying an

alternative sentence. He claims that he was a suitable candidate for sentencing
under the Community Corrections Act of 1985.



              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); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies

inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the
presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn.


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Crim. App. 1992). 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 an 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). A sentence of

split confinement involves the grant of probation after the partial service of a

sentence. Tenn. Code Ann. § 40-35-306. It may include a jail or workhouse
sentence of up to one year with the probationary term to extend for any period

thereafter up to the statutory maximum for the offense. Id.



              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). Even in cases where the

defendant meets the minimum requirements of the Community Corrections Act of
1985, the defendant is not necessarily 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;

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             (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 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).



             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." State v. Taylor, 744

S.W.2d 919, 922 (Tenn. Crim. App. 1987). Because sentencing requires an

individualized, case by case approach, the method of analysis will necessarily

embody the exercise of discretion at the trial court level. See Moss, 727 S.W.2d at
235; State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991). Thus, there is a

sound basis for the presumptive correctness standard of review:

             It is not the policy of this Court to place trial judges in a
             judicial strai[gh]t-jacket in this or any other area, and we
             are always reluctant to interfere with their traditional
             discretionary powers.
Ashby, 823 S.W.2d at 171.



             The presentence report indicates that the defendant was 43 years old

at the time of sentencing. Born and reared in Missouri, he moved to Tennessee in
1990. The defendant, who obtained his high school diploma in Missouri, is

divorced and has two children. He was employed from 1976 until 1989 as a

custodian in an automobile plant in St. Louis. During that time, he spent much of his
income on cocaine and ultimately lost his job due to his drug problem. The


                                           4
presentence report indicates that the defendant began using illegal drugs at the age

of ten and that he often uses drugs on a daily basis. He claims to have entered

numerous drug rehabilitation centers and mental health facilities. In 1998, the
defendant reportedly spent several months at the state mental health facility in

Bolivar. He receives counseling at a local outpatient treatment center in Hardin

County. Disability benefits constitute his only source of income. The defendant was
convicted in this state for possession of cocaine in 1992 and for possession of

marijuana in 1995. In 1992, he was convicted in Florida for possession of

marijuana and for the importation of marijuana. The defendant was in violation of
the terms of his probation when arrested in Tennessee for the offense in this case.



             In denying an alternative sentence, the trial court stated as follows:
             In this case, the court finds that he's got a very significant
             prior felony: the substantial quantity of marijuana out of
             Florida. He's got three prior misdemeanor convictions as
             well. All of them involving the use or possession of some
             type of drug. In this case, the court finds that the record,
             particularly the prior felony record, weighs against his
             eligibility for alternative sentencing as well as the
             circumstances surrounding this offense; that is, the
             substantial quantity of drugs that he possessed and his
             prior record weighs against amenability to any type of
             rehabilitation. Apparently, he was on some type of
             probation or escape status during the commission of this
             offense. So, the court finds that he is not an appropriate
             candidate for alternative sentencing and he'll serve the
             eight years DOC.


             While an eight-year sentence does not disqualify the defendant from

probation, he is not presumed to be a favorable candidate for alternative sentencing
because he was convicted of a Class B felony. Tenn. Code Ann. § 40-35-102(6).

Confinement is often necessary to protect the public from the conduct of the

defendant, to avoid depreciating the seriousness of an offense, to provide a

deterrent to others likely to commit a similar offense, or because measures less
restrictive have recently or frequently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1). The record here supports the trial court's

conclusion that the defendant was not amenable to rehabilitation due to his prior
drug-related convictions and the significant amount of cocaine found within his


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possession. Furthermore, the probation violation tends to demonstrate his inability

to abide by conditions of release into the community. Based on these factors, we

conclude that the defendant is not a favorable candidate for probation or
community-based treatment. In our view, incarceration is warranted.



             Accordingly, the judgment is affirmed.


                                        __________________________________
                                        Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
John Everett W illiams, Judge


_______________________________
Norma McGee Ogle, Judge




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