         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 7, 2003

                STATE OF TENNESSEE v. DOMINIC O. WOODS

                  Direct Appeal from the Circuit Court for Hardin County
                          No. 8171    C. Creed McGinley, Judge



                  No. W2003-00029-CCA-R3-CD - Filed December 11, 2003


The defendant contends on appeal that the trial court erred in denying alternative sentencing. The
defendant pled guilty to possession of crack cocaine (Schedule II controlled substance) with intent
to sell (Class B felony). He agreed to an eight-year sentence, with the manner of service to be
determined at a sentencing hearing. The trial court ordered the sentence to be served in the
Tennessee Department of Correction, based on the defendant’s prior criminal record and his inability
to reform his conduct. The judgment of the trial court is affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR. and NORMA MCGEE OGLE , JJ., joined.

Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Dominic O. Woods.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; G. Robert Radford, District Attorney General; and John W. Overton, Chief Deputy District
Attorney, for the appellee, State of Tennessee.

                                            OPINION

        The defendant, Dominic O. Woods, pled guilty to possession of over .5 grams of crack
cocaine (Schedule II controlled substance) with intent to sell (Class B felony). He agreed to a
sentence of eight years as a standard offender, with the manner of service to be determined by the
trial court. Following a sentencing hearing, the trial court denied the defendant any form of
alternative sentencing and ordered the sentence to be served in the Tennessee Department of
Correction. This appeal timely followed. The defendant contends on appeal that the trial court erred
in denying alternative sentencing. The judgment of the trial court is affirmed.
                                                 Facts

       The following factual account is taken from the presentence report. The defendant was a
passenger in a vehicle that police officers attempted to stop. The vehicle fled, and the officers
pursued. During the attempt to stop the vehicle, the defendant was throwing crack cocaine out the
door of the vehicle. Some of the crack cocaine fell onto the floorboard of the vehicle. The officers
eventually apprehended the suspects. In addition to the cocaine found on the floor, the defendant’s
mouth was full of marijuana.

                                               Analysis

        The defendant contends on appeal that the trial court erred in denying him alternative
sentencing. This Court’s review of the sentence imposed by the trial court is de novo with a
presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned
upon an affirmative showing in the record that the trial judge considered the sentencing principles
and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the
trial court fails to comply with the statutory directives, there is no presumption of correctness and
our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:
               (1) [t]he evidence, if any, received at the trial and the sentencing
               hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
               and arguments as to sentencing alternatives; (4) [t]he nature and
               characteristics of the criminal conduct involved; (5) [e]vidence and
               information offered by the parties on the enhancement and mitigating
               factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
               defendant wishes to make in the defendant’s own behalf about
               sentencing.

        In determining if incarceration is appropriate, a trial court should consider the need to protect
society by restraining a defendant having 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. Tenn. Code Ann. § 40-35-103(1);
see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       A court may also consider the mitigating and enhancing factors set forth in Tennessee Code
Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations.
Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
Additionally, a court should consider the defendant’s potential or lack of potential for rehabilitation


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when determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5);
Boston, 938 S.W.2d at 438.

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C,
D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). With certain statutory
exceptions, probation must be automatically considered by the trial court if the sentence imposed is
eight years or less. Tenn. Code Ann. § 40-35-303(b). In determining whether to grant or deny
probation, a trial court should consider the circumstances of the offense, the defendant’s criminal
record, the defendant’s social history and present condition, the need for deterrence, and the best
interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State
v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). The defendant’s lack of credibility is also
an appropriate consideration and reflects on a defendant’s potential for rehabilitation. State v.
Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999).

        There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case
basis, tailoring each sentence to that particular defendant based upon the facts of that case and the
circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

         The trial court ordered the defendant’s sentence to be served in the Tennessee Department
of Correction. The defendant concedes that he is not entitled to the presumption that he is a
favorable candidate for alternative sentencing, because he was convicted of a Class B felony. The
trial court based its judgment on the defendant’s prior criminal record and his inability to reform his
conduct. The defendant has been convicted of four drug offenses including casual exchange, simple
possession, and two counts of felony cocaine possession. The defendant was given probation on the
misdemeanor charges. He was also sentenced to six years of probation on the felony cocaine
possession charges. His probation was revoked the following year. He was released a few months
later and placed back on probation. He then absconded. The defendant was returned and again
failed to report. The record supports the trial court’s denial of alternative sentencing.

                                             Conclusion

       Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE


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