            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                          APRIL 1999 SESSION        FILED
                                                       July 21, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
STATE OF TENNESSEE,        )
                           )     C.C.A. No. 02C01-9808-CC-00250
      Appellee,            )
                           )     Hardeman County
v.                         )
                           )     Honorable Jon Kerry Blackwood, Judge
RODERICK POLK,             )
                           )     (Sentencing)




FOR THE APPELLANT:               FOR THE APPELLEE:

David H. Crichton                Paul G. Summers
P. O. Box 651                    Attorney General & Reporter
Bolivar, TN 38008
                                 J. Ross Dyer
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 Elizabeth T. Rice
                                 District Attorney General

                                 Jerry W. Norwood
                                 Assistant District Attorney General
                                 302 East Market Street
                                 Somerville, TN 38068




OPINION FILED: ________________________________________


REVERSED AND REMANDED FOR A NEW SENTENCING HEARING


L. T. LAFFERTY, SENIOR JUDGE




                               OPINION
       The appellant, Roderick Polk, herein referred to as “the defendant,” appeals as of

right from his sentence for the delivery of a Schedule II controlled substance, cocaine, a

Class C felony, imposed by the Hardeman County Circuit Court. The trial court sentenced

the appellant as a Range I, standard offender to forty months in the Department of

Correction.



       The defendant raises one issue for our review: whether the trial court erred in failing

to grant the defendant probation, or, in the alternative, to place the defendant in the

community corrections program. After a review of the record in this cause, the briefs of the

parties, and appropriate law, we reverse and remand the trial court’s judgment.



       On January 5, 1998, the Hardeman County grand jury indicted the defendant and

Marlon D. Beauregard for the unlawful, felonious, and knowing delivery of cocaine, a

Schedule II controlled substance, on August 5, 1997. A jury found both defendants guilty

as charged. On June 19, 1998, at the conclusion of a sentencing hearing, the trial court

imposed a sentence of forty months in the Department of Correction, denying any

alternative relief. The defendant elected not to testify at the sentencing hearing, but to rely

on the presentence report. Since there is no trial transcript, the defendant’s statements

in the presentence report adequately substantiate the defendant’s participation in this

criminal activity:

               I was walking down Third Street then this black man stopped
               and asked me do I know where he can get $50.00 worth of
               crack. I said yes, then I got in the car. We rode around and
               made a few stops. Then I told him to go to the projects and
               that’s when I got out and bought the crack. Then I got back in
               the car and gave him the crack and then he took me back to
               Third Street.



       The presentence report reflects that, at the time of sentencing, the defendant was

25 years old, had never been employed, and had quit school in the eleventh grade.

Between the ages of 17 and 23, the defendant had one public intoxication conviction and

four traffic convictions, ranging from no driver’s license, two leaving the scene of an

accident, and driving on a suspended license. In addition, the defendant had two


                                              2
misdemeanor convictions for theft of property and one misdemeanor conviction for

possession of cocaine.



      At the conclusion of the sentencing hearing, the trial court imposed a forty-month

sentence, finding that the defendant had a history of criminal convictions requiring some

enhancement from the minimum sentence of three years for this Class C felony. The trial

court found in mitigation that the defendant played a minor role in the commission of this

offense.



      When an accused challenges the length, range, or manner of service of a sentence,

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).

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).



      When conducting a de novo review of the sentence, this Court must consider: (1)

the evidence, if any, received at the trial and sentencing hearing; (2) the presentence

report; (3) the principles of sentencing and arguments of counsel as to sentencing

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) any

statutory mitigating or enhancement factors; (6) any statement made by the defendant

regarding sentencing; and (7) the potential or lack of potential for rehabilitation or

treatment. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code

Ann. §§ 40-35-102, -103, -210.



       A defendant who “is 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). Our

sentencing law also provides that “convicted felons committing the most severe offenses,


                                            3
possessing criminal histories evincing a clear disregard for the laws and morals of society,

and evincing failure of past efforts at rehabilitation shall be given first priority regarding

sentencing involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant

sentenced to eight years or less who is not an offender for whom incarceration is a priority

is presumed eligible for alternative sentencing, unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offenders who meet the criteria

are entitled to such relief; rather, it requires that sentencing issues be determined by the

facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919,

922 (Tenn. Crim. App. 1987).



       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. Tenn.

Code Ann. § 40-35-103(4). The court should also consider the potential for rehabilitation

or treatment of the defendant in determining the sentence alternative. Tenn. Code Ann.

§ 40-35-103(5).



       In this appeal, the defendant asks this Court to reverse the judgment of the trial

court and remand this case for an alternative sentence of community corrections. The

state, citing the defendant’s criminal history, insists the defendant is not entitled to

community corrections and to do so would only serve to further depreciate the seriousness

of the defendant’s crime.



       Since the defendant is a Class C offender, he is presumed to be a favorable

candidate for an alternative sentence, subject to rebuttal by case facts and circumstances.

See State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App.), per. app. denied (Tenn.

1991). Criteria as to what will constitute “evidence to the contrary” under Tenn. Code Ann.

§ 40-35-102(6) is found in Tenn. Code Ann. § 40-35-103(1). When the state seeks total

confinement, the trial court, in considering confinement, must base its considerations on:

(1) confinement is necessary to protect society by restraining a defendant who has a long

history of criminal conduct; (2) confinement is necessary to avoid depreciating the

                                              4
seriousness of the offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; and (3) measures less restrictive

than confinement have frequently or recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1)(A)-(C).



      From our review of the record, the trial court did not fully comply with the sentencing

principles as required.     See Ashby, 823 S.W.2d at 169.         Our review is without a

presumption of correctness, thus we must consider the requirements of Tenn. Code Ann.

§§ 40-35-102, -103, -210.



      Offenders may be considered for placement in the community corrections program

as an alternative sentence who are:

             (1)   Persons who, without this option, would be
                   incarcerated in a correctional institution;

             (2)   Persons who are convicted of property-related, or
                   drug/alcohol-related felony offenses or other felony
                   offenses not involving crimes against the person as
                   provided in title 39, Chapter 13, parts 1-5;

             (3)   Persons who are convicted of nonviolent felony
                   offenses;

             (4)   Persons who are convicted of felony offenses in
                   which the use or possession of a weapon was not
                   involved;

             (5)   Persons who do not demonstrate a present or past
                   pattern of behavior indicating violence;

             (6)   Persons who do not demonstrate a pattern of
                   committing violent offenses.

Tenn. Code Ann. § 40-36-106(a).



       On the surface, the defendant appears to be a proper candidate for consideration

of placement in a community corrections program. Since the defendant elected not to

testify, it is most difficult to determine the defendant’s potential for rehabilitation or

treatment. Therefore, we must rely on the facts of the case and the information contained

in the presentence report. The defendant, at age 25, is a high school dropout, who has

never been employed. He is a daily user of crack cocaine and marijuana, and has been


                                             5
unsuccessful with drug counseling at Western Mental Health Institute. The defendant’s

criminal history consists of misdemeanor convictions, with probation in three cases

between 1992 and 1994. The defendant has one prior misdemeanor cocaine conviction.



      Tennessee Code Annotated § 40-36-106(c) gives some guidance as to chronic drug

offenders:

             Felony offenders not otherwise eligible under subsection (a),
             and who would be usually considered unfit for probation due
             to histories of chronic alcohol, drug abuse, or mental health
             problems, but whose special needs are treatable and could be
             served best in the community rather than in a correctional
             institution, may be considered eligible for punishment in the
             community under the provisions of this chapter.



      On remand, we instruct the trial court to place the defendant in a community

corrections program. We suggest, for the defendant’s rehabilitative needs, that he should

be confined for a minimum of ten months in the Hardeman County Jail as an appropriate

condition of placement in the community corrections program, a strict rehabilitation

program with mandatory drug screens, a mandatory employment program or job training,

and such other conditions the trial court finds reasonable.



      The trial court’s judgment is reversed and remanded for a new sentencing hearing.



                                         ________________________________________
                                         L. T. LAFFERTY, SENIOR JUDGE




                                            6
CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE



___________________________________
DAVID G. HAYES, JUDGE




                                  7
