         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE         FILED
                            JUNE 1998 SESSION
                                                   September 3, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 01C01-9707-CC-00255
      Appellee,                     )
                                    )    MONTGOMERY COUNTY
VS.                                 )
                                    )    HON. JOHN H. GASAWAY III,
JOHN WAYNE MANSELL,                 )    JUDGE
                                    )
      Appellant.                    )    (Delivery of Schedule VI Controlled
                                          Substance)



FOR THE APPELLANT:                       FOR THE APPELLEE:

RUSSELL A. CHURCH                        JOHN KNOX WALKUP
Assistant Public Defender                Attorney General and Reporter
109 South Second Street
Clarksville, TN 37040                    GEORGIA BLYTHE FELNER
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         JOHN WESLEY CARNEY, JR.
                                         District Attorney General

                                         ARTHUR BIEBER
                                         Assistant District Attorney General
                                         204 Franklin Street, Suite 200
                                         Clarksville, TN 37040




OPINION FILED:



AFFIRMED



LEE MOORE,
SPECIAL JUDGE
                                      OPINION



      The appellant, John Wayne Mansell, was indicted during the January, 1993,

term of the Montgomery County grand jury for possession of a Schedule VI

controlled substance for resale and unlawful possession of a deadly weapon. On

April 30, 1997, after selection of a jury and commencement of trial, defendant

entered a plea of guilty to the delivery of a Schedule VI controlled substance under

Count Two of the indictment. Counts One and Three of the indictment were

dismissed. The plea of guilty was subject to judicial sentencing. On June 9, 1997,

a sentencing hearing was held. Defendant was sentenced to two (2) years with six

(6) months of his sentence being served in jail and the balance on probation.

Defendant was also fined $5,000.00.



       For the reasons stated hereinafter, the judgment of the trial court is affirmed.



                    SENTENCING- STANDARD OF REVIEW



      This Court's review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).



      The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing

                                          2
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.



       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum sentence within the

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

the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for

each factor is prescribed by the statute, as the weight given to each factor is left to

the discretion of the trial court as long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record.

State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,

848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

Nevertheless, should there be no mitigating factors, but enhancement factors are

present, a trial court may set the sentence above the minimum within the range.

Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638

(Tenn. Crim. App. 1994).



       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169.




                                          3
       A court may also consider the mitigating and enhancing factors set forth in

Tenn. Code Ann. §§ 40-35-113 and 40-35-114 as they are relevant to the § 40-35-

103 considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938

S.W.2d 435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the

defendant's potential or lack of potential for rehabilitation when determining if an

alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State

v. Boston, 938 S.W.2d at 438.



       There is no mathematical equation to be utilized in determining sentencing

alternatives. Not only should the sentence fit the offense, but it should fit the

offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467

(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of

alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994). In summary, sentencing must be determined on a case-by-case basis,

tailoring each sentence to that particular defendant based upon the facts of that

case and the circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235

(Tenn. 1986).



                                          A.



       The defendant contends the trial court erred by inappropriately using non-

statutory enhancing factors in sentencing the defendant and imposed a sentence

too harsh for the circumstances. At the sentencing hearing held on June 9, 1997,

the trial court applied one enhancement factor finding that the defendant had a prior

criminal history.   The trial court found no applicable mitigating factors.        The

presentence report reflects two (2) convictions for attempt to commit the felony of

burglary in 1968 and a conviction of burglary in 1969, along with a disorderly

conduct conviction in 1967. The presentence report also indicated that there was

a 1966 conviction for petit larceny. Although the convictions occurred in the 1960's,

the finding of the trial court was that the defendant had a previous history of criminal



                                           4
convictions or criminal behavior in addition to those necessary to establish the

appropriate range was proper. There is no evidence that the trial judge used non-

statutory enhancing factors in arriving at the appropriate sentence.



       Although the trial court made no specific comments regarding mitigating

factors, it is obvious from the record that the trial court found no applicable

mitigating factors. Appellant contends in his brief that he was not a principal actor

in the offense in question. This contention is not a mitigating factor unless it would

have applied to Tenn. Code Ann. § 40-35-113(4) indicating that the defendant

played a minor role in the commission of the offense. The record does not support

this contention.



       According to the presentence report, the appellant indicated that he was a

marijuana user at the time of his arrest. He indicated in the presentence report that

he was no longer a marijuana user. However, at his sentencing hearing he

indicated that he had used marijuana over the memorial day weekend which date

was between the date of the guilty plea and the sentencing hearing. The trial court

sentenced the appellant to pay a $5,000.00 fine and to serve two (2) years. The

trial court suspended the sentence to six (6) months and placed the appellant on

probation for the balance of the sentence. Based upon a de novo review of the

record, this Court is of the opinion that the sentence imposed by the trial court was

appropriate. The credibility of the appellant regarding his use of marijuana was

certainly poor. Lack of candor by an accused can result in the denial of an

alternative sentence. In this case, however, the trial court imposed an alternative

sentence. The trial court could have denied an alternative sentence due to the

appellant's lack of candor. Instead, the court imposed a lenient sentence. The

court was justified in requiring the appellant to serve a part of the sentence based

upon his lack of candor.




                                          5
                                    LEE MOORE, SPECIAL JUDGE


CONCUR:




JOE G. RILEY, JUDGE




CURWOOD WITT, JUDGE




         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE



STATE OF TENNESSEE,            )
                               )    C.C.A. No. 01C01-9707-CC-00255
      Appellee,
                               )    Montgomery County No. 31796
vs.                            )

                               6
                                           )       (Delivery of Schedule VI Controlled
                                           )         Substance)
JOHN WAYNE MANSELL,                        )
                                           )       AFFIRMED
       Appellant.                          )



                                     JUDGMENT



       Came the appellant, John Wayne Mansell, by counsel, and the state, by the

Attorney General, and this case was heard on the record on appeal from the

Circuit Court of Montgomery County; and upon consideration thereof, this Court

is of the opinion that there is no reversible error in the judgment of the trial court.



       It is, therefore, ordered and adjudged by this Court that the judgment of the

trial court is AFFIRMED, and the case is remanded to the Circuit Court of

Montgomery County for execution of the judgment of that court and for collection

of costs accrued below.



       It appears that appellant is indigent. Costs of appeal will be paid by the State

of Tennessee.



                                                   Per Curiam

                                                   Lee Moore, Special Judge
                                                   Joe G. Riley, Judge
                                                   Curwood Witt, Judge
