         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 13, 2002

             STATE OF TENNESSEE v. FELICIA JOANN CANNON

                   Direct Appeal from the Circuit Court for Bedford County
                              No. 14855     Charles Lee, Judge



                      No. M2001-01875-CCA-R3-CD - Filed May 17, 2002


After convictions for sale and delivery of a Schedule II controlled substance, the trial court sentenced
defendant to nine years and ten months incarceration. Defendant appeals asserting she is entitled
to Community Corrections Program. We disagree and affirm.

      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 JOSEPH M. TIPTON and
ALAN E. GLENN, JJ., joined.

Donna Leigh Hargrove, District Public Defender, and Andrew Jackson Dearing III, Assistant Public
Defender, for the appellant, Felicia Joann Cannon.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael David Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                              OPINION

       On February 22, 2001, defendant, Felicia Joann Cannon, was indicted by a Bedford County
grand jury for one count of sale of a Schedule II controlled substance, cocaine, and one count of
delivery of a Schedule II controlled substance, cocaine base, in violation of Tennessee Code
Annotated section 39-17-417. On May 21, 2001, defendant entered an open plea of guilty to the
charge of sale of a Schedule II controlled substance after both charges were merged together.

       On June 18, 2001, defendant was sentenced as a Range I standard offender to nine years and
ten months at 30% release eligibility. Defendant was also assessed a fine of $2,000.00. Notice of
appeal was filed on July 9, 2001.
                                                Facts

        The trial court held a sentencing hearing following the entry of defendant’s guilty plea.
Defendant testified that she is a 23-year-old single mother of two children, ages two and seven. She
stated that she sold drugs while on medical leave. She was not able to get a job because her youngest
daughter had heart problems. She stated that she is a single parent, living alone, with rent and bills
to pay, including feeding her daughters. She stated that her daughter had just had open-heart
surgery, and the doctor requested that defendant not work. She further stated that her daughter had
stayed in the hospital for about a month-and-a-half.

        Defendant testified that she had used marijuana and cocaine in the past, but that she had not
used any drugs since she was arrested. The presentence report reflects that defendant stated that she
did not want to work and felt like selling drugs was fun. She stated that her youngest daughter was
staying with her aunt because both of defendant’s parents are alcoholics.

         On cross-examination, defendant admitted that she had previously been convicted for theft
in January of 1996, at which time she was ordered to serve a sentence on probation and 48 hours in
jail, along with $350.00 in restitution. In October of 1996, defendant’s probation was revoked, and
she served a 30-day sentence. Defendant was convicted in 1996 of driving on a revoked license and
received a sentence of six months probation and was ordered to pay a fine of $50.00 and costs. A
probation violation warrant was issued in May of 1997 because she did not pay her fines and costs.
However, upon payment of those fines and costs, the probation violation warrant was dismissed.

       In July of 1997, defendant was convicted of possession of drugs. She received a six-month
suspended sentence and was ordered to serve 48 hours in jail and pay $250.00 in fines and costs.
Her probation was revoked in August of 1998, and she served 30 days in jail. Defendant was
convicted in March of 1998 for criminal impersonation and was placed on probation for 90 days.
Defendant testified, however, that although she knew that she had been placed on probation, she
thought that the conviction was for possession rather than criminal impersonation. Defendant was
also convicted of driving on a revoked license in December of 1999. She received a sentence of six
months probation and was ordered to pay a $50.00 fine and costs. Defendant’s probation was
revoked in December of 2000, and she was ordered to serve 45 days in jail.

       Defendant admitted that she failed to appear in court on two prior occasions. Defendant
admitted that when she wrote a statement for the purpose of the presentence report, she did not
mention her sick daughter. However, she did write that she felt that selling drugs was fun.

         Defendant testified that her daughter was born on December 22, 1998. Defendant claimed
that the doctor told her not to work, however, she did not have any documentation to verify this. She
further stated that she made quite a bit of money selling drugs and that selling drugs was her only
source of income. She stated that she made enough money to pay her car payment, pay her rent, and
buy clothes, shoes, medicine, and food for her children. She stated that she basically made her living
as a drug dealer. Defendant finally stated that her child’s father is incarcerated in Rutherford County

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and cannot provide any financial support. She also stated that she realized that she did not want to
continue selling drugs. Subsequently, she moved back home with her mother and lost her car, her
home, and everything else.

        At the conclusion of the hearing, the trial court found that defendant was not entitled to any
mitigating factors. The trial court found that defendant had a history of criminal convictions and
criminal behavior, in addition to those necessary to establish the appropriate range. Tenn. Code Ann.
§ 40-35-114(1). The trial court also found that defendant had a history of unwillingness to comply
with release in the community in that defendant flaunted her lack of regard for the system when she
failed to appear on two separate occasions. Tenn. Code Ann. § 40-35-114(8). The court found that
defendant had a conviction for driving on a revoked license and, while waiting to go to court on that
revoked license charge, received another revoked license charge. The court also took into
consideration the fact that defendant had children to care for. The court finally determined that there
were no mitigating factors, only enhancing factors, and imposed a sentence of nine years and ten
months as a Range I standard offender. The trial court denied alternative sentencing because
defendant had a history of frequent and unsuccessful sentencing alternatives to incarceration applied
to her. Tenn. Code Ann. § 40-35-103(1)(C). Defendant subsequently appealed and asked this Court
to consider her for the Community Corrections Program.

                                                Analysis

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must 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) (1997). 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 the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992). The Sentencing Commission Comments provide that the burden is on the defendant to show
the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments
of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any
mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and
(7) the defendant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        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) (1997). However, a defendant who
commits “the most severe offenses, possess[es a] criminal histor[y] evincing a clear disregard for
the laws and morals of society, and [has failed] past efforts at rehabilitation” does not enjoy this

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presumption. Tenn. Code Ann. § 40-35-102(5), (6). The defendant’s potential for rehabilitation,
or lack thereof, should be examined when determining whether an alternative sentence is
appropriate. Tenn. Code Ann. § 40-35-103(5). Sentencing issues are to 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).

       The presumption for alternative sentencing can be rebutted, and if it is, a trial court may
impose a sentence of confinement. When imposing a sentence of total confinement, the trial court
should base its decision on the considerations listed in Tennessee Code Annotated § 40-35-103(1):
       (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.

        Defendant argues that the trial court should have allowed her to serve her sentence on
Community Corrections. The Tennessee Community Corrections Act was developed to “punish
selected, nonviolent felony offenders in front-end community based alternatives to incarceration,
thereby reserving secure confinement facilities for violent felony offenders.” Tenn. Code Ann. §
40-36-103(1). The program is available for
        (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 . . . ;
        (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; [and]
        (6) Persons who do not demonstrate a pattern of committing violent offenses . . . .
Id. § 40-36-106(a)(1)-(6). Those who are sentenced to incarceration or are on escape at the time of
sentencing are not eligible for the program. Id. § 40-36-106(a)(6). Defendant is “otherwise
eligible.”

        In the instant case, while we agree with defendant that she is eligible for the Community
Corrections Program because of the non-violent nature of her offenses, Tenn. Code Ann. § 40-36-
106(a), we note that she is not automatically entitled to this relief. State v. Ball, 973 S.W.2d 288,
294 (Tenn. Crim. App. 1998); State Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). The
statute simply sets forth minimum standards to guide a trial court when determining if a particular
defendant is eligible to be placed on the Community Corrections Program. Tenn. Code Ann. § 40-
36-106(d).

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        Defendant was convicted of a Class B felony as a Range I standard offender. We note that
the applicable sentencing range is eight (8) to twelve (12) years, Tenn. Code Ann. § 40-35-112(a)(2),
and defendant was not given the maximum sentence but instead, nine years and ten months.
Additionally, because defendant was convicted of a Class B felony, defendant is not entitled to the
statutory presumption for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). Finally,
because defendant was sentenced to nine years and ten months, defendant is not eligible for
probation, Tenn. Code Ann. § 40-35-303(a).

         We conclude that the trial judge was correct in determining that defendant has a history of
criminal convictions in addition to that necessary to establish the appropriate range. In fact,
defendant has two convictions for theft, four convictions for driving on a revoked license, one
conviction for possession of drugs, two convictions for criminal impersonation, and two convictions
for failing to appear in court. We conclude that the trial judge properly used these convictions to
enhance defendant’s sentence and deny alternative sentencing.

        Finally, we note that the trial court found that defendant had a history of unwillingness to
comply with conditions for release into the community. Indeed, on four separate occasions
defendant was sentenced to probation and subsequently had those sentences revoked. There is ample
evidence to support that measures less restrictive than confinement have been wasted on defendant
in the past. See generally State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997); State v.
Williams, 2001 Tenn. Crim. App. LEXIS 678, No. M2000-02593-CCA-R3-CD (Tenn. Crim. App.
at Nashville, Aug. 28, 2001); State v. Matthews, 1998 Tenn. Crim. App. LEXIS 404, No. 02
C01-9704-CR-00158, 1998 WL 148317, at *2 (Tenn. Crim. App. at Jackson, March 31, 1998); State
v. Miller, 1997 Tenn. Crim. App. LEXIS 226, No. 03C01-9512-CC-00382, 1997 WL 106677, at *6
(Tenn. Crim. App. at Knoxville, March 11, 1997). As such, we affirm the trial court’s holding and
conclude that defendant is not entitled to Community Corrections Program.

                                         CONCLUSION

       Accordingly, we affirm the judgment of the trial court.




                                                       ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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