         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 20, 2001

             STATE OF TENNESSEE v. LLEWELYN D. LARMOND

                 Direct Appeal from the Criminal Court for Sullivan County
                  Nos. S42552; S42661; S43169     Phyllis H. Miller, Judge



                                  No. E2000-01910-CCA-R3-CD
                                         April 10, 2001

Pursuant to a negotiated plea agreement, the defendant pled guilty to two counts of selling 0.5 grams
or more of cocaine, possession of marijuana, and the sale of counterfeit cocaine. He received an
effective sentence of sixteen years. The manner of service of his sentences was left to the discretion
of the trial court. Defendant now contends the trial court erred in denying his request for alternative
sentencing. After a thorough review of the record, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E. GLENN,
JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); Stephen M. Wallace, District Public
Defender; and Leslie S. Hale, Assistant District Public Defender, Blountville, Tennessee (at hearing),
for the appellant, Llewelyn D. Larmond.

Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Teresa Murray-Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

       Pursuant to a negotiated plea agreement, the defendant pled guilty to two counts of selling
0.5 grams or more of cocaine, possession of marijuana, and the sale of counterfeit cocaine. The
defendant received an effective sentence of sixteen years, and the manner of service of his sentence
was left to the discretion of the trial court. The defendant now contends the trial court erred in
denying his request for alternative sentencing. We affirm the judgment of the trial court.
                                         BACKGROUND

       Pursuant to the uncontested recitation of facts presented by the Assistant District Attorney
General at the guilty plea hearing and the defendant's presentence report, we find the pertinent
underlying circumstances surrounding the defendant's convictions to be as follows:

       On October 27, 1998, police informant, David Greer, went to the defendant's apartment. The
defendant sold Greer a rock of cocaine weighing 1.1 grams for $300. Based upon this transaction,
Officer Harold Tucker obtained a search warrant for the premises. On October 28, 1998, Officer
Tucker executed the warrant, at which time the defendant began to run down the hallway of the
apartment complex and dropped two bags containing 13.6 grams of marijuana. The officers obtained
the drugs, and the defendant was arrested.

       On March 23, 1999, apparently while the defendant was on bond for the prior charges, police
informant, Angela Phillips, was wired with an audio transmitter and negotiated a future sale with the
defendant for one ounce of powder cocaine. Thereafter, she informed the defendant she currently
wanted to purchase cocaine. The defendant then went to his car and returned with the purported
cocaine. The informant paid the defendant $900 and took the purported cocaine to the officers. The
purported cocaine was in rock form and weighed 13.8 grams. Field testing revealed that the
substance was not cocaine.

       Pursuant to their March 23rd negotiations, on April 5, 1999, Phillips was again wired with
an audio transmitter and proceeded to the WalMart store parking lot in Bristol, Tennessee, where she
met the defendant. The defendant got into Phillips’ vehicle and gave her 14.6 grams of powder
cocaine in exchange for $1,500.


                         DENIAL OF ALTERNATIVE SENTENCING

        The defendant contends the trial court erred in denying his request for alternative sentencing.
Specifically, the defendant argues: (1) the trial court placed too much emphasis on the defendant's
prior criminal history; (2) the trial court inappropriately applied enhancement factor two (the
defendant was the leader of an offense involving two or more criminal actors); (3) the trial court
improperly found that the October offenses were committed while the defendant was on probation;
and (4) the trial court failed to consider the defendant's mitigation proof.

A. 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



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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).

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. 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). One convicted of selling
cocaine over 0.5 grams, a Class B felony, is not presumed to be a favorable candidate for alternative
sentencing. Id.

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

       A court may also consider the mitigating and enhancing factors set forth in Tenn. Code Ann.
§§ 40-35-113 and 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);
Boston, 938 S.W.2d at 438.

B. Analysis

       Initially, the defendant contends that the trial court placed too much emphasis on his prior
criminal history. See Tenn. Code Ann. § 40-35-114(1). We disagree. The weight to be given to
each sentencing factor is left to the discretion of the trial court. State v. Moss, 727 S.W.2d 229, 237
(Tenn. 1986).

        In addition to his current drug convictions, the presentence report reveals the defendant was
convicted in North Carolina on January 4, 1999, of possession of a stolen vehicle, conspiracy to
sell/deliver cocaine, and possession of cocaine. The North Carolina offenses were committed over
a nine-month time span, during which time the defendant committed two of the current offenses in
Tennessee. The remaining Tennessee offenses occurred within a year of the last North Carolina
offense. Therefore, we conclude the trial court appropriately held that the defendant’s extensive
criminal record of drug-related offenses, which were amassed in a short period of time, deserved
considerable weight.

        Secondly, the defendant contends the trial court improperly concluded that the defendant was
a leader of an offense involving two or more criminal actors. See Tenn. Code Ann. § 40-35-114(2).
The defendant testified that he would come to Tennessee with his friend, “Mike,” who was also a


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drug dealer. He further testified that “Mike” would give him drugs to support his habit. However,
it is unclear whether “Mike” was with the defendant during these transactions. Regardless of the
applicability of this enhancement factor, we reach the same conclusion as to the propriety of the
denial of alternative sentencing.

       Thirdly, the defendant contends the trial court inappropriately found the defendant was on
probation when he committed the October 1998 offenses. The presentence report supports his
contention. However, the defendant does not dispute that the other offenses were committed while
he was on probation from his North Carolina convictions. Again, the fact that the defendant was not
on probation during the October 1998 offenses is not determinative as to the denial of alternative
sentencing.

         The trial court noted that the defendant had a prior history of unwillingness to comply with
conditions of a sentence involving release into the community. See Tenn. Code Ann. § 40-35-
114(8). Following his arrest in Tennessee for the October 1998 offenses, the defendant’s North
Carolina probation was revoked. In addition to the commission of further offenses, the defendant’s
presentence report and testimony at the sentencing hearing indicate the defendant failed to report
to his probation officer in North Carolina, violated his curfew, failed to pay his fees, and failed to
attend drug and alcohol counseling. Furthermore, pursuant to Tenn. Code Ann. § 40-35-103(1), less
restrictive measures than confinement have recently been unsuccessfully applied to the defendant.

        Finally, the defendant contends the trial court failed to consider his mitigating proof. At the
sentencing hearing, the defendant testified that he had been using drugs since he was twelve or
thirteen years old. He claims he completed an inpatient treatment program while in prison in North
Carolina. However, on cross-examination the defendant admitted that he had used marijuana while
in prison in North Carolina. He further stated that the present offenses were committed to support
his cocaine addiction. The defendant also testified that if he had known how severe the penalties
were in Tennessee, he would not have sold the cocaine here. The trial court found that the defendant
was evasive and untruthful, and the defendant’s past efforts at rehabilitation were done in an effort
to lessen his North Carolina sentence. We find no error in the trial court’s refusal to find any
mitigating factors.


                                          CONCLUSION

         The trial court properly considered the defendant’s long history of criminal conduct. See
Tenn. Code Ann. § 40-35-103(1)(A). The trial court properly concluded that measures less
restrictive than confinement had been unsuccessful. See Tenn. Code Ann. § 40-35-103(1)(C).
Furthermore, the trial court properly considered the defendant’s lack of potential for rehabilitation.
See Tenn. Code Ann. § 40-35-103(5). We see no reason to reverse the trial court’s denial of
alternative sentencing.

       The judgment of the trial court is affirmed.


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      ___________________________________
      JOE G. RILEY, JUDGE




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