             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                            APRIL 1999 SESSION
                                                           May 18, 1999

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )     C.C.A. NO. 01C01-9809-CC-00382
             Appellee,            )
                                  )     COFFEE COUNTY
VS.                               )
                                  )     HON. GERALD L. EWELL, SR.,
MARSHA ARNOLD,                    )     JUDGE
                                  )
             Appellant.           )     (Sentencing)



FOR THE APPELLANT:                      FOR THE APPELLEE:


ROBERT S. PETERS                        PAUL G. SUMMERS
100 First Ave., Southwest               Attorney General & Reporter
Winchester, TN 37398
                                        CLINTON J. MORGAN
                                        Asst. Attorney General
                                        John Sevier Bldg.
                                        425 Fifth Ave., North
                                        Nashville, TN 37243-0493

                                        CHARLES M. LAYNE
                                        District Attorney General

                                        KENNETH SHELTON, JR.
                                        Asst. District Attorney General
                                        P.O. Box 147
                                        Manchester, TN 37349




OPINION FILED:____________________



AFFIRMED AND REMANDED FOR CORRECTION OF THE RECORD


JOHN H. PEAY,
Judge
                                                OPINION



                  The defendant pled guilty to possession of marijuana with intent to sell or

deliver and was sentenced to one month in county jail and one year, eleven months in

the community corrections program. She now appeals, arguing that the trial court

imposed an excessive sentence and erred in denying a full alternative sentence. We

affirm the trial court’s sentencing order on this count.



                  The defendant was charged with possession of over 14.175 grams of

marijuana with intent to sell or deliver, a Class E felony.                             See T.C.A. § 39-17-

417(g)(1)(Supp. 1998).1 After plea negotiations, the State recommended a sentence of

deferred judgment for one year and 100 hours of public service work in exchange for a

guilty plea.      The trial court declined to accept this plea agreement.                            After further

negotiations, the State recommended a one year sentence of probation, 200 hours of

public service work, and the mandatory minimum fine in exchange for a guilty plea.

Again, the trial court rejected the plea agreement. The defendant then pled guilty and

submitted the case to the trial court for sentencing.



                  At the sentencing hearing, the defendant maintained that the marijuana

found at her house was for her personal use. She also testified that she bought a rather

large quantity of marijuana so she could share some with her friends because it was

cheaper to buy in bulk. To that end, she testified that she used the baggies and scales



         1
          The defe nda nt wa s also char ged with p oss ess ing dr ug pa raph erna lia, bu t the d ispo sition of this
count is unclear. The document reflecting the defendant’s guilty plea indicates that on May 19, 1998,
the defendant pled guilty only to possession of marijuana with intent to sell or deliver, and the record
contains an order dated May 26, 1998, dismissing the possession of drug paraphernalia count because
of the defendant’s guilty plea to the drug possession charge. The presentence report, however, states
that the de fendan t pled guilty to both counts , and the trial c ourt sen tenced the defe ndant on both cou nts.
The record does not explain this discrepancy, but because the defendant does not question her
conviction or sentence for possession of drug paraphernalia, neither shall we.

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that were found in her house in order to distribute the proper amount of marijuana to her

friends and ensure she was not “being cheated.” Moreover, she testified that she bought

the drugs from a college student named Edward Johnson, but she could not remember

his phone number. In her statement contained in the presentence report, she stated, “I

would consider helping get the person I bought the marijuana from, [i]f the D.A.’s office

will help me.”



                 At the conclusion of the evidence, the trial court told the defendant, “It’s

apparent to the Court that you are a drug seller and distributor. Although you claim that

the marijuana was for your own personal use, the presence of scales and plastic bags

convinces the Court that you lie in this regard.” The trial court also found that the

defendant did not cooperate with the presentence officer in making a forthright statement

or truthfully disclosing the name of the person from whom she bought the marijuana. The

trial court found no enhancing factors, but stated that this type of offense was “rampant”

in Coffee County and needed to be discouraged and that the defendant has a “<sorry’

social history.” Accordingly, the trial court ordered the defendant to pay the minimum fine

of two thousand dollars ($2000) and gave her a sentence of two years, one month to be

served in county jail and the balance served on community corrections.



                 The defendant challenges the length of her sentence, arguing that she

should have received the minimum sentence. She also argues that she should not spend

any time in jail and instead should be placed on probation or at least solely on community

corrections. In this regard, she contends that she is entitled to a presumption of

alternative sentencing and that the record contains insufficient evidence to rebut that

presumption.




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              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d)

Sentencing Commission Comments. This presumption, however, “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).



              In determining the length of a sentence, T.C.A. § 40-35-210(c) provides that

for Class E felonies, such as the one in the instant case, the minimum sentence within

the range is the presumptive sentence. If there are enhancing and mitigating factors, the

court must start at the minimum sentence in the range and enhance the sentence as

appropriate for the enhancement factors and then reduce the sentence within the range

as appropriate for the mitigating factors. If there are no mitigating factors, the court may

set the sentence above the minimum in that range but still within the range. The weight

to be given each factor is left to the discretion of the trial judge. State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992).



              Here, because the defendant was sentenced to a Class E felony as a

Range I standard offender, her possible sentence ranged from one to two years.

Although the trial court found no statutory enhancing factors, the presentence report

reflects that the defendant admits to “casual use” of marijuana since 1970.            The

defendant also testified that at least some of the marijuana found in her house was for

her own use. Because the defendant admits to prior criminal activity, her sentence

should be enhanced under T.C.A. § 40-35-114(1). We agree with the trial court that one

mitigating factor is applicable, that is, that the defendant’s behavior neither caused nor



                                             4
threatened serious bodily injury. See T.C.A. § 40-35-113(1). Even so, it is obvious that

the trial court gave this mitigating factor little weight, as do we. Thus, balancing the

enhancing factor against the mitigating factor, a sentence of two years seems appropriate

under the circumstances of this case.



              In determining whether the defendant should be incarcerated, the guidelines

enumerated in T.C.A. § 40-35-103 should be considered. These guidelines include the

need “to protect society by restraining a defendant who has a long history of criminal

conduct,” the need “to avoid depreciating the seriousness of the offense,” the

determination that “confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses,” or the determination that “measures less

restrictive than confinement have frequently or recently been applied unsuccessfully to

the defendant.” T.C.A. § 40-35-103(1).



              Here, the trial court judge specifically stated, “I find that a sentence to

confinement, partial confinement, is necessary to avoid depreciating the seriousness of

this offense . . . .” The defendant correctly observes that the State failed to prove the

need for deterrence, but she fails to recognize that the trial court judge specifically found

that she was untruthful when she insisted that the drugs found in her home were for her

personal use and that she lied about the identity of her drug supplier.            Because

untruthfulness reflects upon a defendant’s potential for rehabilitation and is itself a valid

reason for denying probation, the trial court was justified in imposing short term

incarceration in combination with a community corrections sentence. See State v.

Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994).



              Finding no merit to the defendant’s arguments, the sentence imposed by



                                             5
the trial court is affirmed. However, we remand to the trial court to correct the record

regarding the disposition of Count II.



                                                _______________________________
                                                JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
J. CURWOOD WITT, JR., Judge




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