         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 7, 2008

                   STATE OF TENNESSEE v. ERIC CRUTHIRD

                     Appeal from the Criminal Court for Shelby County
                Nos. 07-06660, I07-00044, 07-02401  W. Mark Ward, Judge



                   No. W2007-02667-CCA-R3-CD - Filed December 4, 2008


Upon his pleas of guilty, the Defendant, Eric Cruthird, was convicted of three counts of possession
of .5 grams or more of cocaine with the intent to sell, each conviction being a Class B felony.
Pursuant to his plea agreement, the Defendant received an eight-year sentence for each conviction,
with one of said sentences to be served consecutively to the other two, for an effective sentence of
sixteen years. In accordance with the plea agreement, the manner of service of the sentence was left
to the discretion of the trial court. Following a sentencing hearing, the trial court denied any form
of alternative sentencing and ordered that the sentences be served in the Department of Correction.
On appeal, the Defendant argues that the trial court erred by denying him probation. We affirm the
judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and J.C.
MCLIN , JJ., joined.

Brett B. Stein (on appeal); and Steve Hallman (at trial), Memphis, Tennessee, for the appellant, Eric
Cruthird.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                        Factual Background
        The Defendant pleaded guilty to and was convicted of three counts of possession of .5 grams
or more of cocaine, each conviction being a Class B felony. See Tenn. Code Ann. § 39-17-
417(c)(1). As part of the plea agreement, additional drug charges were dismissed. At the guilty plea
submission hearing, the assistant district attorney summarized the facts underlying each conviction
as follows:
                Had these matters gone to trial the state’s proof would have been—and
        there’s three separate incidents. On January the 26th of 2007 officers observed [the
        Defendant] driving in Memphis, Shelby County, Tennessee for speeding. They
        stopped [the Defendant’s] vehicle, which also had expired tags. A search of the
        vehicle pursuant to arrest revealed what later tested positive for an amount of cocaine
        in excess of 40 grams.
                Officers also found other controlled substances including Tylenol with
        codeine and ecstasy inside the vehicle.
                On February the 23th of 2007 while he was out on bond for that previous case
        officers again observed [the Defendant] driving without headlights on. The officers
        when they approached smelled marijuana and later seized marijuana in the ashtray.
        A search subsequent to arrest revealed what later tested positive for some 28 grams
        of cocaine.
                And finally, the most recent indictment, but the offense date goes back to
        January of this year, officers operating an undercover capacity in Memphis and
        Shelby County, Tennessee at 987 South Third Street as part of a large scale
        undercover operation, met with [the Defendant] to purchase, what later tested
        positive for one ounce of crack cocaine from him for an amount of $750.00 in cash.
                That meeting was audio, video taped and [the Defendant] was identified as
        the party responsible.

        Following the acceptance of the Defendant’s guilty pleas, the trial court conducted a
sentencing hearing, during which the Defendant requested that he be allowed to serve his sentences
on probation. At the conclusion of the sentencing hearing, the trial court denied any form of
alternative sentencing and ordered that the Defendant’s sentences be served in the Department of
Correction. It is from the order of the trial court denying any form of alternative sentencing that the
Defendant appeals.

                                          Standard of Review
        On appeal, the party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Comments. When a defendant challenges the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code Ann. § 40-
35-401(d) (2006). The presumption of correctness 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). However, if the record shows
that the trial court failed to consider the sentencing principles and all relevant facts and
circumstances, then review of the challenged sentence is purely de novo without the presumption
of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1999). When conducting a de novo
review of a sentence, we must consider: (1) any evidence received at the trial and/or sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancement
factors; (6) certain statistical information provided by the administrative office of the courts; (7) any
statements made by the defendant on his or her own behalf; and (8) the potential for rehabilitation

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or treatment. Tenn. Code Ann. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001).

                                              Analysis
        The record on appeal affirmatively shows that the trial court considered the sentencing
principles and all relevant facts and circumstances. Therefore, we begin our review with the
presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-
35-401(d). In this appeal, the Defendant argues that the trial court erred by denying him a
probationary sentence. We first note that no defendant is entitled to a presumption that he or she is
a favorable candidate for probation. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008). Although
certain offenders who have been convicted of a Class C, D or E felony should be considered as
favorable candidates for alternative sentencing options, the Defendant in this case was convicted of
Class B felonies. Therefore, this sentencing guideline does not benefit the Defendant in his quest
for an alternative sentence.

        The presentence report reflects that, at the time of sentencing, the Defendant was twenty-five
years old and unmarried. He is a high school graduate. The Defendant has some employment
history with a temporary staffing agency and has also worked with his father as a painter. His record
of prior convictions consisted of a “weapons offense” and a conviction for possession of marijuana,
both convictions being in the Shelby County General Sessions Court.

         At the sentencing hearing, the Defendant admitted that, at the time he was arrested for the
offenses described herein, he was supporting himself by dealing in drugs. The Defendant stated that
he bought his cocaine from a “big-time” drug dealer, usually in transactions involving about seven
hundred dollars. The Defendant sold this cocaine primarily in small amounts, usually for about
twenty dollars for each transaction. He admitted that, while he was released on bond after his first
arrest, he continued to buy and sell drugs which led to his second arrest.

         In announcing his sentencing decision, the trial court noted that the Defendant did not have
a long history of criminal convictions but noted that he did have a “significant history of present
criminal conduct.” The trial court also found that the Defendant was not entirely truthful or candid
during his testimony regarding the extent of his involvement in selling cocaine. The trial court stated
its concern that the Defendant continued to deal in drugs after he had been released on bond from
his first arrest for possession of cocaine with intent to sell. The trial judge also considered another
factor that he called the “multiplicity factor,” which he described as “when multiple offenses are
committed over a period of time then that ups the seriousness of the offense.” The court noted that
according to the Defendant’s own testimony, he had sold drugs somewhere between ten and thirty
times.

        After reviewing and considering on the record the sentencing principles and relevant facts
and circumstances pertaining to the Defendant and his crimes, the trial court summarized the reasons
it was denying probation as follows:




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       I am not impressed with his employment history. According to the presentence
       report he’s had this temporary job for five or six months and before that he worked
       for his father for some unknown period of time, which is difficult to be determined.
                I am a little concerned that he says in the presentence report that he doesn’t
       use any kind of illegal drugs, and yet, he gets on the stand and says that he does
       smoke marijuana.
                And I guess the last thing, I wasn’t—when pinned down about how much
       drug selling he was doing he seemed to be a little bit evasive, to be as charitable as
       possible. I was a little bit concerned about his candor there.
                So he’s got a sixteen year sentence for selling drugs. Three convictions,
       multiple times. Although he does not have much prior record, I just think under the
       circumstances that to place him on probation is not the appropriate disposition in this
       case.
                I think for all of the factors that I just said I think I am going to deny any form
       of alternative sentence in this matter.

        Because the record demonstrates that the trial court properly considered the sentencing
principles and all relevant facts and circumstances, the sentencing decision of the trial court is
presumed to be correct. See Tenn. Code Ann. § 40-35-401(d); Ashby, 823 S.W.2d at 169. After
review, we conclude that the trial court did not err in denying the Defendant probation.

                                         Conclusion
       Based upon the foregoing, the judgment of the Shelby County Criminal Court is affirmed.



                                                         ______________________________
                                                         DAVID H. WELLES, JUDGE




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