         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 13, 2009

               STATE OF TENNESSEE v. JAMIE TENERIO RICE

                      Appeal from the Criminal Court for Sumner County
                           No. 326-2007    Dee David Gay, Judge



                   No. M2008-00625-CCA-R3-CD - Filed February 23, 2009


The Defendant, Jamie Tenerio Rice, appeals the sentencing decision of the Sumner County Criminal
Court. Following his guilty plea to sale of .5 grams or more of cocaine, a Class B felony, the trial
court imposed a nine-year sentence as a Range I, standard offender to be served in the Department
of Correction. On appeal, the Defendant asserts that his sentence is excessive and that the trial court
erred in denying alternative sentencing. 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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Michael Anderson, Assistant Public Defender, Gallatin, Tennessee, for the appellant, Jamie Tenerio
Rice.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Lawrence R. Whitley, District Attorney General; and Lytle Anthony James, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                         Factual Background
       On January 18, 2008, the Defendant pleaded guilty to and was convicted of the sale of .5
grams or more of a substance containing cocaine. See Tenn. Code Ann. § 39-17-417(c)(1). The
underlying facts, as recited at the guilty plea hearing, are as follows:

       [T]his [offense] occurred on October 25th of 2006. [The Defendant] was
       involved—or collaterally involved in an undercover buy operation in Sumner
       County, Tennessee, and he is the person who delivered the cocaine to the residence
       to be sold. And he was stopped after the sale was made, and he had the marked
       money on his person that was used to make the buy.

       Following the acceptance of the Defendant’s guilty plea, the trial court conducted a
sentencing hearing. Carolyn Meager with the Department of Probation and Parole testified that she
prepared the presentence report in the Defendant’s case. She testified that her search revealed that
the Defendant was convicted on January 16, 2008, for possession of unlawful drug paraphernalia.
The Defendant was on bond for the current offense when he was arrested for having drug
paraphernalia in his possession.

       Ms. Meager also testified that the Defendant was convicted of domestic violence on October
4, 2006, and was placed on probation. The Defendant was still serving this probation at the time of
commission of the present offense. The Defendant’s criminal history additionally included
convictions for simple possession of marijuana in 2003, assault in 1997, and two counts of domestic
violence in 1996.

       During the interview with Ms. Meager, the Defendant stated that he had once been on
probation with Gary Tessar. Mr. Tessar was asked about the Defendant’s behavior while on
probation and, according to Ms. Meager, Mr. Tessar reported that the Defendant never missed
appointments, passed at least eleven drug screens, and “never gave him any trouble.”

         The State attached a probation violation warrant in connection with the October 4 domestic
violence conviction. The warrant relayed that the Defendant failed to report to his probation officer
(listed as Gary Tessar) and failed to report his arrest for the current offense. Another warrant for the
1997 assault and two 1996 domestic violence convictions was issued in January 1998. The
Defendant’s probation officer, Joseph I. Kerinuk, reported that the Defendant failed to report to his
probation officer, tested positive for cocaine, failed to attend required domestic violence classes, and
was in arrears for supervision and counseling fees.

       The presentence report reflected that the Defendant was thirty-one years old at the time of
sentencing and had four children, one daughter residing in Germany and the other children residing
in Tennessee. He stated that he had not seen the daughter in Germany since she was five years old
but that he saw the others regularly. He was married, but he and his wife had separated. The
Defendant was living with his mother, but he and his wife were talking about reconciling. The
Defendant described his family relationships as “extremely good and very beneficial.”

        The Defendant dropped out of high school after completing the tenth grade. Regarding his
employment history, the Defendant first started working for Harper’s Aluminum in September 1994
as an assembler/laborer. He worked there for seven years before leaving for a job that paid more
money. He then worked for Crossroads Moving Co. as a mover for seven years, leaving due to
personal conflicts. In 2007, he began working for Collier’s Moving Co. as a mover, but his hours
varied on an as needed basis. The Defendant also had a music studio and was preparing to get his
business license renewed.


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        The Defendant admitted to consuming a twelve-pack of beer twice a week and drinking
tequila occasionally, but he stated that he never drank enough to become intoxicated. At the age of
eighteen, the Defendant began smoking marijuana daily and, at twenty-one, using cocaine. He
relayed that he quit both in 2005, quitting cocaine because “it was time to change.”

       After hearing the evidence presented, the trial court imposed a sentence of nine years for the
Defendant’s conviction. The trial court also determined that the Defendant was not an appropriate
candidate for alternative sentencing and ordered that his sentence be served in the Department of
Correction. The Defendant filed the instant timely appeal.

                                           ANALYSIS
        On appeal, the Defendant challenges the sentence as imposed by the trial court. First, he
contends that his nine-year sentence is excessive. He also asserts that he was improperly denied an
alternative sentence.

        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; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). 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). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999); see also State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects 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. 1991); see also Carter, 254 S.W.3d at 344-45.

        In conducting a de novo review of a sentence, this Court must consider (a) the evidence
adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) evidence and information offered by the parties on the enhancement
and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114;
(f) any statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; and (g) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254
S.W.3d at 343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

I. Length of Sentence
        The Defendant was convicted of the sale of cocaine in the amount of .5 grams of more, which
is a Class B felony. See Tenn. Code Ann. § 39-17-417(c)(1). As a Range I, standard offender the
Defendant’s sentencing range was eight to twelve years. See Tenn. Code Ann. § 40-35-112(a)(2).
The trial court imposed a sentence of nine years.


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        The Defendant’s conduct occurred subsequent to the enactment of the 2005 amendments to
the Sentencing Act, which became effective June 7, 2005. The amended statute no longer imposes
a presumptive sentence. Carter, 254 S.W.3d at 343. As further explained by our supreme court in
Carter,

        the trial court is free to select any sentence within the applicable range so long as the
        length of the sentence is “consistent with the purposes and principles of [the
        Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes and
        principles include “the imposition of a sentence justly deserved in relation to the
        seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a punishment
        sufficient “to prevent crime and promote respect for the law,” [Tenn. Code Ann.] §
        40-35-102(3), and consideration of a defendant’s “potential or lack of potential for
        . . . rehabilitation,” [Tenn. Code Ann.] § 40-35-103(5).

Id. (footnote omitted).

        The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing of the
enhancement and mitigating factors, as it rendered these factors merely advisory, as opposed to
binding, upon the trial court’s sentencing decision. Id. Under current sentencing law, the trial court
is nonetheless required to “consider” an advisory sentencing guideline that is relevant to the
sentencing determination, including the application of enhancing and mitigating factors. Id. at 344.
The trial court’s weighing of various mitigating and enhancing factors is now left to the trial court’s
sound discretion. Id. Thus, the 2005 revision to Tennessee Code Annotated section 40-35-210
increases the amount of discretion a trial court exercises when imposing a sentencing term. Id. at
344.

        To facilitate appellate review, the trial court is required to place on the record its reasons for
imposing the specific sentence, including the identification of the mitigating and enhancement
factors found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). If our review reflects
that the trial court applied inappropriate mitigating and/or enhancement factors or otherwise failed
to follow the Sentencing Act, the presumption of correctness fails and our review is de novo. Carter,
254 S.W.3d at 345.

         In setting the Defendant’s sentence at nine years, the trial court applied the following
enhancement factors: (1) The Defendant had a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range; (8) The Defendant, before
trial or sentencing, failed to comply with the conditions of a sentence involving release into the
community; and (13) At the time the felony was committed, the Defendant was released on
probation. See Tenn. Code Ann. § 40-35-114(1), (8), (13). No mitigating factors were found
applicable to the Defendant.



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        On appeal, the Defendant argues that the trial court erred in applying enhancement factor (8).
The court found this factor applicable in that the Defendant was arrested for possession of unlawful
drug paraphernalia while released on bond for the current offense. We agree with the Defendant.
This Court has previously held that release on bond is not a sentence involving release into the
community. See State v. Demetrius Holmes, No. E2006-00393-CCA-R3-CD, 2006 WL 3628090,
at *3 (Tenn. Crim. App., Knoxville, Dec. 14, 2006).

        Despite the misapplication of enhancement factor (8), the sentence imposed is appropriate.
The trial court properly enhanced the Defendant’s sentence based upon his criminal history and
because he was on probation when he committed the present offense. The Defendant had six
misdemeanor convictions for assault, simple possession of marijuana, domestic violence, and
possession of unlawful drug paraphernalia. The trial court also noted the Defendant’s history of drug
abuse, spanning several years. We conclude that the trial court did not err or abuse its discretion in
enhancing the Defendant’s sentence to nine years.

II. Alternative Sentencing
        Effective June 7, 2005, our legislature amended Tennessee Code Annotated section 40-35-
102(6) by deleting the statutory presumption that a defendant who is convicted of a Class C, D, or
E felony, as a mitigated or standard offender, is a favorable candidate for alternative sentencing. Our
sentencing law now provides that a defendant who does not possess a criminal history showing a
clear disregard for society’s laws and morals, who has not failed past rehabilitation efforts, and who
“is an especially mitigated or standard offender convicted of a Class C, D or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of evidence to
the contrary. A court shall consider, but is not bound by, this advisory sentencing guideline.” Tenn.
Code Ann. § 40-35-102(5), (6) (emphasis added). No longer is any defendant entitled to a
presumption that he or she is a favorable candidate for alternative sentencing. Carter, 254 S.W.3d
at 347.

       The following considerations provide guidance regarding what constitutes “evidence to the
contrary”:

             (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

               (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence to
       others likely to commit similar offenses; or

              (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. Additionally, the principles
of sentencing reflect that the sentence should be no greater than that deserved for the offense


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committed and should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). The court should also consider the
defendant’s potential for rehabilitation or treatment in determining the appropriate sentence. Tenn.
Code Ann. § 40-35-103(5).

        The Defendant’s nine-year sentence resulted from his conviction for a Class B felony.
Because the Defendant was convicted of a Class B felony, the legislative preference that the
Defendant “should be” considered as a favorable candidate for alternative sentencing is not
applicable. In light of his Class B felon status, it is the Defendant who bears the burden of
establishing suitability for an alternative sentencing option.

        Based upon our de novo review, we conclude that the record supports a sentence of total
incarceration. The trial court denied an alternative sentence based upon the Defendant’s lengthy
criminal history and his demonstrated failure at past rehabilitative efforts. Contrary to the
Defendant’s assertions, the trial judge considered the Defendant’s social history and the need for
deterrence in its overall alternative sentencing decision, but the court did not rely on these as the
bases for denial of an alternative sentence.

        Again, the Defendant’s criminal record included six misdemeanor convictions beginning in
1996 and continuing until the present. The Defendant was on probation for domestic violence at the
time he committed the instant offense. The record included two violation warrants documenting
additional criminal conduct by the Defendant. The Defendant also admitted to years of drug use.
The trial court properly considered the sentencing principles and all relevant facts and circumstances.
We cannot conclude that the trial court erred or abused its discretion by denying an alternative
sentence.

                                            CONCLUSION
        Based on the foregoing reasoning and authorities, we conclude that the sentence as imposed
is not excessive that the trial court did not err in denying the Defendant an alternative sentence. The
judgment of the Sumner County Criminal Court is affirmed.



                                                       ______________________________
                                                       DAVID H. WELLES, JUDGE




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