           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                    Assigned on Briefs June 6, 2006

                  STATE OF TENNESSEE v. GREGORY O. CHERRY

                           Appeal from the Circuit Court for Hardin County
                           Nos. 8395 and 8396 C. Creed McGinley, Judge



                       No. W2005-02078-CCA-R3-CD - Filed August 25, 2006


The Hardin County grand jury returned two indictments1 against the Defendant, Gregory O. Cherry,
charging him with thirteen drug offenses. In separate plea agreements, the Defendant pled guilty to
five offenses: (1) possession with intent to manufacture, deliver, or sell .5 grams or more of cocaine,
(2) simple possession of marijuana, (3) possession of drug paraphernalia, (4) selling a Schedule IV
controlled substance, and (5) delivering less than .5 grams of cocaine. The plea agreements provided
that the Defendant would receive an effective sentence of ten years with the manner of service to be
determined by the trial court. Following a sentencing hearing, the trial court ordered that the
Defendant’s ten-year sentence be served in the Department of Correction. On appeal, the Defendant
argues that the trial court erred in denying an alternative sentence. Finding no error, we affirm the
judgments of the Hardin County Circuit Court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which J.C. MCLIN , J. joined. GARY R.
WADE, P.J., not participating.

Richard W. DeBerry, Assistant Public Defender, Camden, Tennessee, for the appellant, Gregory O.
Cherry.

Paul G. Summers, Attorney General and Reporter; Sophia Lee, Assistant Attorney General; Robert
Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General,
for the appellee, State of Tennessee.




       1
           This Court consolidated the two cases for purposes of appeal. See generally Tenn. R. App. P. 16.
                                                   OPINION

                                     Factual Background
        This case relates to the Defendant’s guilty pleas and resulting sentences. In 2004, the
November term of the Hardin County grand jury indicted the Defendant in two separate cases for
thirteen drug offenses.

        In case number 8396,2 a ten count indictment was returned against the Defendant for: (1) sale
of Phentermine, a Schedule IV controlled substance, on January 29, 2004; (2) delivery of
Phentermine, a Schedule IV controlled substance, on January 29, 2004; (3) possession of
Oxycodone, a Schedule II controlled substance, with intent to manufacture, deliver, or sell on
January 29, 2004; (4) possession of Alprazolam, a Schedule IV controlled substance, with intent to
manufacture, deliver, or sell on January 29, 2004; (5) possession of Diazepam, a Schedule IV
controlled substance with intent to manufacture, deliver, or sell on January 29, 2004; (6) possession
of Clonazepam, a Schedule IV controlled substance, with intent to manufacture, deliver, or sell on
January 29, 2004; (7) possession of over one-half ounce of marijuana with intent to manufacture,
deliver, or sell on January 29, 2004; (8) possession of drug paraphernalia on January 29, 2004; (9)
sale of less than .5 grams of cocaine on July 15, 2004; and (10) delivery of less than .5 grams of
cocaine on July 15, 2004. See Tenn. Code Ann. §§ 39-17-417(a), -425(a)(1).

       As contained in the pre-sentence report, the facts underlying counts one through eight are as
follows:

                  On 1/29/04 while staking a residence out at 130 Long St., [the Defendant]
         came to this residence and sold 30 Fasten pills (Sch. IV) for the sum of $150.00.
         [Agent Tim Cunnigham] and Agent Kelly was [sic] inside this residence listening to
         this transaction and took [the Defendant] into custody while he was taking possession
         of the money. Inside a rental car parked in the driveway, in which [the Defendant]
         came up in was a red paper box which contained a metal container with 5 Oxecotin
         pills (Sch. II), pill bottle containing 8 Valium (Sch. IV, DeeDee Saucedo, name of
         label), pill bottle containing 10 Xanex pills (Sch. IV, James Dicus name on label),
         27 Xanex in a pill bottle with no label (Sch. IV, different manufacture from the other
         bottle), a pill bottle containing 5 Klonopin pills (Sch. IV, unlabeled, seizure pill), pill
         bottle containing 25 Ativan pills (Sch. IV, no label), a large bag containing appx. 20
         grams of marijuana, a set of digital scales, and a bottle containing 10 Antihistamine
         pills (Legend Drug, Bonnie James on label). [The Defendant] gave consent to search
         his residence at 260 Handy St. During the search of this residence a brown pill bottle
         (no label) was found in a chest drawer that had residue that field tested positive for
         cocaine (Sch. II), a[n] empty bottle of hydrocodone (labeled with Carol Woody
         name) and a[n] empty bottle of Alprazolam (labeled with Jerry Gamill name).


         2
         The cases are discussed in chronological order, not in numerical sequence, because the events of case number
8396 occurred before those in 8395.

                                                        -2-
The record reflects that following the Defendant’s January 29th arrest, he secured bail and was
released. In regard to counts nine and ten of the indictment, offenses which occurred on July 15,
2004, the State provided the following relevant facts at the guilty plea hearing:

                  The Defendant while on bond on the [January] count[s] met with an
         undercover officer, a different individual, on that date and engaged in a transaction
         for the sale of cocaine where he sold point three (.3) grams of cocaine at that time for
         sixty dollars ($60) to that agent. He was not arrested on that at that time.


       In case number 8395, a three count indictment was returned against the Defendant, charging
him with: (1) possession with intent to manufacture, deliver, or sell .5 grams or more of cocaine on
September 6, 2004; (2) simple possession of marijuana on September 6, 2004; and (3) possession
of drug paraphernalia on September 6, 2004. See Tenn. Code Ann. §§ 39-17-417(a)(4), -418(a),
-425(a)(1). The facts surrounding these charges, as specified at the guilty plea hearing, follow:

                 Later, on September the 6th, last year, the Defendant was stopped for a traffic
         violation by an officer with the Sheriff’s Department. In the course of that stop and
         then after walking a dog around the car and the dog hitting on the automobile the
         Defendant was in, sixty grams of crack was found in the vehicle along with a small
         amount of marijuana and various items of drug paraphernalia.


        On February 8, 2005, the Defendant pled guilty as charged to the three drug offenses in case
number 8395. In case number 8396, the Defendant pled guilty to sale of Phentermine, a Schedule
IV controlled substance, and delivery of less than .5 grams of cocaine.3 Pursuant to the negotiated
plea agreements, the Defendant was sentenced as a Range I, standard offender to eight years for the
conviction of possession with intent to manufacture, deliver, or sell .5 grams or more of cocaine, a
Class B felony; eleven months and twenty-nine days for the simple possession of marijuana and
possession of drug paraphernalia convictions, Class A misdemeanors; two years for selling a
Schedule IV controlled substance conviction, a Class D felony; and three years for delivering less
than .5 grams of cocaine conviction, a Class C felony. The eight-year sentence for possession with
intent to manufacture, deliver, or sell .5 grams or more of cocaine and the two-year sentence for
selling a Schedule IV controlled substance were to be served consecutively to each other. The three-
year sentence for delivery of cocaine and the class A misdemeanor sentences were likewise to be
served consecutively to the two-year sentence but were to run concurrently with the eight-year
sentence, resulting in an effective sentence of ten years as a Range I, standard offender. Under the
terms of the plea agreement, only the manner of service was to be determined by the trial court.


         3
            The record reflects that the Defendant pled guilty to Count 9 in case 8396. Count 9 of the indictment charges
sale of less than .5 grams of cocaine on July 15, 2004; however, the judgment forms reflect that the Defendant pled guilty
to delivery of less than .5 grams of cocaine on July 15, 2004. Because the indictment charged delivery in Count 10 and
both offenses are Class C felonies, this error is at most a clerical one.

                                                           -3-
        A sentencing hearing was held on August 3, 2005. The proof at the sentencing hearing
established that the Defendant was thirty-four years old, the father of one child, and he had
completed high school. The presentence report reflects that the Defendant had been employed as
an “inspector” with “Aqua Glass Corp.” from June 30, 2002, until October 28, 2004. During the
Defendant’s employment with Aqua Glass Corp., he worked part-time as a Radio Shack salesman
for a period of five months. The Defendant stated that prior to this employment, he worked at a
factory in Selmer from 1997 to 2001, and from 1994 until 1997, he was employed as a prison guard
in Clifton.

        With regard to criminal history, the Defendant’s criminal record, prior to 2002, includes only
convictions for driving while license suspended and other traffic offenses. Over the next three years,
the Defendant was convicted of the following misdemeanors: violation of the bad check law, simple
assault, disorderly conduct, violation of an order of protection, and two convictions for vandalism.
The Defendant contested one of his vandalism convictions at the sentencing hearing, his counsel
stating: “[The Defendant] believes that that vandalism offense date of 2/24/02, he believes that was
dismissed.”

         Following this proof, the trial court denied all forms of alternative sentencing and ordered
that the Defendant’s effective ten-year sentence be served in confinement. In so ruling, the trial court
stated:

               In checking on him, he’s got some prior convictions. They’re not significant.
       They’re misdemeanors, but based upon the record as a whole, the fact that there are
       multiple drug offenses, the fact that there is a prior record, albeit misdemeanors, the
       Court finds that he’s not an appropriate candidate for probation. Therefore,
       alternative sentencing is denied.


The Defendant appeals this ruling.

                                          ANALYSIS
        The Defendant now asks this Court to overturn the trial court’s decision and sentence him
to an alternative sentence. Specifically,

             The [D]efendant contends he should have been sentenced pursuant to the
       Tennessee Community Corrections Act 40-36-101 et seq or placed on probation . .
       ..

               ....

               . . . The [D]efendant contends that he is amenable to rehabilitation through
       an alternative program such as Community Corrections that the Court could monitor.



                                                  -4-
                The [D]efendant is an eligible offender under T.C.A. 40-36-106(a)[(1)(B)]
         because his crime is a non-violent drug related felony.

                 The [D]efendant’s only prior record was for misdemeanors. The Court found
         that the prior record was not significant.


        Before a trial court imposes a sentence upon a convicted criminal defendant, it 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; and (f) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. Tenn. Code Ann. § 40-35-210(b) (2003);4 State v. Imfeld, 70 S.W.3d 698,
704 (Tenn. 2002). 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. State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We
will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported
by the record. State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that a
sentence is improper is upon the appealing party. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

       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


         4
           W e note that the legislature has recently amended several provisions of the Criminal Sentencing Reform Act
of 1989, said changes becoming effective June 7, 2005. However, the Defendant’s crimes in this case predate the
effective date of these amendments. Therefore, this case is not affected by the 2005 amendments, and the statutes cited
in this opinion are those that were in effect at the time the instant crimes were committed.

                                                         -5-
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); see also State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The following
considerations provide guidance regarding what constitutes “evidence to the contrary” which would
rebut the presumption of alternative sentencing:

         (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 State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See 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. See id. § 40-35-103(5).

       The Defendant’s effective ten-year sentence resulted from his convictions for Class B and
D felonies. Because the Defendant was convicted of a Class B felony, he receives no presumption
in favor of alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). Nonetheless, the
Defendant remains eligible for probation because he received a sentence of eight years. Tenn. Code
Ann. § 40-35-303(a). However, in view of his Class B felon status, it is the Defendant who bears
the burden of establishing suitability for an alternative sentencing option.5

        The trial court found that incarceration was appropriate in this case. The Defendant was
indicted for thirteen drug offenses, many of which were committed while the Defendant was out on
bail. State v. Zeolia, 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996) (multiplicity of offenses under
indictment is relevant to suitability for alternative sentencing options). Additionally, the Defendant’s
criminal history has become increasingly severe since 2002, including recent misdemeanor
convictions for assault, disorderly conduct, violation of an order of protection, vandalism, and
violation of the bad check law. The presentence report reflects that the Defendant was unemployed


         5
          W ith regard to his two-year, Class D felony sentence, he is presumed to be a favorable candidate for alternative
sentencing absent evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).



                                                           -6-
for several months prior to his arrest in January of 2005. This, coupled with the various types of
drugs found in the possession of the Defendant, leads to the conclusion that the Defendant was
selling drugs for pecuniary gain. See State v. Ernest Willie Mays, M2001-02446-CCA-R3-CD, 2002
WL 1949695, at *7-8 (Tenn. Crim. App., Nashville, Aug. 23, 2002). Based upon our review of the
record, we cannot conclude that the trial court erred or abused its discretion by denying an alternative
sentence.

                                        CONCLUSION
       For the foregoing reasons, we conclude that the trial court did not err in its determination of
the manner of service. The sentencing decision of the trial court is affirmed.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




                                                  -7-
