         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 23, 2002

                   STATE OF TENNESSEE v. VINSON TAYLOR

                        Appeal from the Circuit Court for Dyer County
                          No. C99-148     R. Lee Moore, Jr., Judge



                     No. W2001-01551-CCA-R3-PC - Filed March 5, 2002


On June 23, 1999, the defendant, Vinson Taylor, pled guilty to the sale of cocaine in excess of .5
grams, a Class B felony. The trial court imposed a sentence of eight years. Almost ten months later,
the defendant filed a petition for post-conviction relief. On appeal from an order denying post-
conviction relief, this court granted a delayed appeal based upon the failure of trial counsel to file
a timely appeal. Vinson Taylor v. State, No. W2000-01991-CCA-R3-PC (Tenn. Crim. App., at
Jackson, May 3, 2001). In this delayed appeal, the defendant contends that the trial court should
have granted alternative sentencing. The judgment is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

C. Michael Robbins, Memphis, Tennessee (on appeal); Jim W. Horner, District Public Defender (on
appeal); H. Tod Taylor, Assistant Public Defender (on appeal); and Charles M. Agee, Jr., Dyersburg,
Tennessee (at trial), for the appellant, Vinson Taylor.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        On November 3, 1998, the defendant sold cocaine in an amount over .5 grams. After the
defendant pled guilty, the trial court imposed a sentence of eight years. At the time of this offense,
the defendant was on parole for two Class C felony cocaine sales for which he had received an
effective sentence of four years. The eight-year sentence was ordered to be served consecutively to
the earlier sentence. See Tenn. R. Crim. P. 32(c)(3)(A).
        At the time of the sentencing hearing on this offense, the defendant was 19 years of age. One
of six children, the defendant testified that he had an eighth grade education and no prior work
history. He acknowledged that he had abused drugs since he was 13 years of age. The defendant
also acknowledged that he had a prior criminal history in juvenile court which included two thefts
under $10,000.00, a vehicle burglary, and the sale of crack cocaine. Because the defendant had never
had the opportunity to participate in an in-treatment drug abuse program, he asked the trial court to
consider such treatment as an alternative sentence. By the time of the hearing on July 23, 1999, the
defendant had spent 77 days in jail. The defendant conceded that as a juvenile, he had been placed
in the custody of the Department of Children's Services, had been released on probation, and had
then violated the terms of probation. After the second release from juvenile custody, he was charged
as an adult at age 16 for two counts of selling cocaine. He received a prison sentence but was
released in September of 1998 on parole. Two months after his release, he was charged with the
offense in question. The defendant was living with his mother at the time and the sale took place
just outside her residence.

       The trial court ruled that three enhancement factors applied:

       (1)     The defendant has a previous history of criminal convictions or criminal
               behavior in addition to those necessary to establish the appropriate range;
       (13)    The felony was committed while the defendant was on parole; and
       (20)    The defendant was adjudicated to have committed a delinquent act or acts as
               a juvenile that would constitute a felony if committed by an adult.

See Tenn. Code Ann. § 40-35-114. The trial court applied as a mitigating factor the defendant's
acceptance of responsibility for his criminal act. See Tenn. Code Ann. § 40-35-113(13). While the
trial court listed general deterrence as a reason to incarcerate the defendant, it also cited his long
history of criminal conduct and expressed a concern that a lesser sentence would depreciate the
seriousness of this offense. The trial court determined that measures less restrictive than
incarceration had failed, indicating that the defendant had a "very poor" potential for rehabilitation.

        In this appeal, the defendant argues that he has no history of violent behavior and argues that
he should be placed in a community-based program as an alternative to incarceration. The state
argues that a community corrections sentence is inappropriate because the defendant has violated
the terms of probation or parole on at least three prior occasions and resumed selling cocaine less
than two months following his release on parole for a four-year sentence.

         When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review 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); see State v.
Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or
otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v.


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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).

        Especially mitigated or standard offenders convicted of Class B felonies are, of course,
presumed to be favorable candidates "for alternative sentencing options in the absence of evidence
to the contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none of which
apply here, probation must be automatically considered by the trial court if the sentence imposed is
eight years or less. Tenn. Code Ann. § 40-35-303(b) (Supp. 2000).

        Among the factors applicable to probation consideration are the circumstances of the offense,
the defendant's criminal record, social history and present condition, and the deterrent effect upon
and best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
The nature and circumstances of the offenses may often be so egregious as to preclude the grant of
probation. See State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981). A lack of candor may
also militate against a grant of probation. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).

        The purpose of the Community Corrections Act of 1985 was to provide an alternative means
of punishment for "selected, nonviolent felony offenders in front-end community based alternatives
to incarceration." Tenn. Code Ann. § 40-36-103. The community corrections sentence provides a
desired degree of flexibility that may be both beneficial to the defendant and serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the defendant meets
the minimum requirements of the Community Corrections Act of 1985, the defendant is not
necessarily entitled to be sentenced under the Act as a matter of law or right. State v. Taylor, 744
S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are eligible for community
corrections:

                 (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;



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                (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;
        and
                Persons who are sentenced to incarceration or on escape at the time of
        consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).

         Tennessee Code Annotated section 40-36-106(c) creates a "special needs" category of
eligibility for a community corrections sentence:

                Felony offenders not otherwise eligible under subsection (a), and who would
        be usually considered unfit for probation due to histories of a 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.

Tenn. Code Ann. § 40-36-106(c). To be eligible for community corrections under the special needs
category, the defendant must first be eligible for probation under Tenn. Code Ann. § 40-35-303.
State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).

         In Ashby, our supreme court encouraged the grant of considerable discretionary authority to
our trial courts in matters such as these. 823 S.W.2d at 171; see State v. Moss, 727 S.W.2d 229, 235
(Tenn. 1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at 922. "It
is not the policy or purpose of this court to place trial judges in a judicial straight-jacket in this or
any other area, and we are always reluctant to interfere with their traditional discretionary powers."
Ashby, 823 S.W.2d at 171.

        In this instance, the trial court considered the principles governing the sentencing, observed
the defendant, considered the presentence report, and determined that the defendant's prior criminal
acts and lack of amenability to rehabilitation militated against a community corrections sentence.
That the defendant failed to adhere to conditions of release to probation or parole on three separate
occasions was the primary basis for denial. In our view, the defendant's failure in that regard
demonstrates that he is a poor risk for any sentencing alternative involving release into the
community. Nothing in this record suggests that drug treatment is an absolute remedy. Although
the defendant qualified for an alternative sentence and there was evidence of a special need due to
his drug abuse, the trial court is entitled to considerable discretion in matters such as this.

        Accordingly, the judgment must be affirmed.




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      ___________________________________
      GARY R. WADE, PRESIDING JUDGE




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