        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 13, 2010

        STATE OF TENNESSEE v. QUORTEZ DESHAWN DUNCAN

                   Appeal from the Circuit Court for Maury County
                        No. 16921     Stella Hargrove, Judge




                  No. M2009-00525-CCA-R3-CD - Filed April 5, 2010


The Defendant, Quortez Deshawn Duncan, was convicted by a Maury County jury of
possession of .5 grams or more of cocaine with the intent to sell, a Class B felony. The trial
court sentenced the Defendant to nine years in the Department of Correction, to be suspended
after service of one year. In this direct appeal, the Defendant argues that the evidence is
insufficient to support his conviction and that his sentence is excessive. Concluding that the
evidence is sufficient and that the Defendant’s sentence is consistent with our 1989 Criminal
Sentencing Reform Act and its amendments, the judgment of the trial court is affirmed.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Michael D. Cox, Columbia, Tennessee, for the appellant, Quortez Deshawn Duncan.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Mike Bottoms, District Attorney General; and Brent Cooper, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                       Factual Background

        On March 7, 2007, a Maury County grand jury indicted the Defendant for possession
of .5 grams or more of cocaine with the intent to sell, a Class B felony. See Tenn. Code Ann.
§ 39-17-417(a), (c)(1). A jury trial was held on October 22, 2008.

        On the evening of September 20, 2006, Sergeant (now lieutenant) Troy Potts, along
with other officers of the Crime Suppression Unit of the Columbia Police Department, was
patrolling the downtown area of Columbia. Sergeant Potts was alerted of a vehicle with a
possible window tint violation. As he pulled in behind the Defendant’s Pontiac Grand Am,
he could see the window tint “was obviously very dark in the car.” Sergeant Potts initiated
a traffic stop of the vehicle. Other officers quickly arrived on the scene of the stop, including
K-9 Officer Todd Bone (now Cornersville Chief of Police) and Officer Mark Owens.

        The Defendant pulled over. Sergeant Potts identified the Defendant as the driver of
the vehicle, and he explained to him the reason for the stop. Sergeant Potts asked the
Defendant for permission to search his vehicle, but the Defendant refused. As Sgt. Potts was
issuing the Defendant a citation for the tint violation, Officer Bone walked the dog around
the Defendant’s car. The dog “alerted” to the presence of drugs on the driver’s side door and
the driver’s seat of the car. Based upon the dog’s “alert” to these certain areas of the vehicle,
Officer Bone indicated to Sgt. Potts that he should check the Defendant’s buttocks area.

        After the “alert” from the dog, the Defendant was “really nervous acting,” so Sgt.
Potts performed a “pat-down” search looking for weapons. Sergeant Potts discovered a
“hard rock-like substance” in the Defendant’s underwear; he immediately knew that the
substance was drugs. Sergeant Potts held on to the substance, and the Defendant began
trying to pull away. The Defendant shouted, “get your hand out of my ass[,]” and he was
then placed in handcuffs.

       Officer Owens read the Defendant his Miranda1 rights and tried to calm him down.
After several minutes of being unable to remove the substance from the Defendant’s
underwear, the officers used a pocketknife to cut it out. According to the officers, it
appeared to have been sewn into the Defendant’s underwear. The substance was later tested
by an agent with the Tennessee Bureau of Investigation, and it was determined to be 22.2
grams of crack cocaine.



       1
           See Miranda v. Arizona, 384 U.S. 436 (1966)

                                                 -2-
       Sergeant Potts also found $166 in cash on the Defendant’s person; however, the
Defendant told Sgt. Potts he was unemployed. Officers also searched the Defendant’s
vehicle, and no drug paraphernalia was located on his person or inside the car.

       According to Sgt. Potts and Officer Owens, in their experience, it was common for
people to hide drugs on their person. At trial, Sgt. Potts testified that 22.2 grams of crack
cocaine was a “felony amount” because “[y]ou would never find that amount on a [simple]
user.” Officer Owens testified that “[t]he amount itself suggested the more appropriate
charge would have been a resale.”

       Officer Josh Davis with the Columbia Police Department’s Narcotics and Vice Unit
was also present at the traffic stop of the Defendant. He testified that, based upon his
experience in narcotics investigations, the “street value” of an ounce of crack cocaine (28
grams) was “about anywhere from a thousand to twelve hundred dollars . . . .”

         While the Defendant did not testify, the defense theory presented through closing
argument was that the Defendant was guilty of only simple possession, as there was no proof
of his intent to sell. Following the conclusion of the proof, the Defendant was found guilty
as charged, and the jury assessed a fine of $25,000.

       A sentencing hearing was held on November 20, 2008. At the time of the sentencing
hearing, the Defendant was only twenty years old; he and his child resided with his mother.
The Defendant was not employed and had no significant employment record. He testified
that he was attending barber college in Nashville five days a week and was financially
supported by his mother. The Defendant stated that he sold cocaine to support his family.
Following the conclusion of the proof, the trial court sentenced the Defendant as a Range I,
standard offender to nine years in the Department of Correction. After serving one year, the
sentence was to be suspended, and the Defendant placed on probation. The Defendant filed
a motion for new trial, which was denied. This timely appeal followed.

I. Sufficiency
        The Defendant challenges the sufficiency of the evidence, contending that the
evidence presented at his trial was insufficient to establish that he had the intent to sell the
crack cocaine discovered in his possession. Tennessee Rule of Appellate Procedure 13(e)
prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.” A convicted criminal defendant who challenges the sufficiency
of the evidence on appeal bears the burden of demonstrating why the evidence is insufficient
to support the verdict, because a verdict of guilt destroys the presumption of innocence and
imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State

                                               -3-
v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

        In order to be sufficient to support the Defendant’s conviction in the present case, the
evidence presented at trial had to establish beyond a reasonable doubt that the Defendant
knowingly possessed .5 grams or more of cocaine with the intent to sell. See Tenn. Code
Ann. § 39-17-417(a), (c)(1). A specific mental state (such as intent to sell) is an element of
almost all criminal offenses, and it is proven most often by circumstantial evidence. State
v. Timmy Lee Hill, No. M2005-01126-CCA-R3-CD, 2006 WL 1374668, at *6 (Tenn. Crim.
App., Nashville, May 17, 2006) (citing Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973)).
Usually, the trier of fact must determine whether the culpable mental state was present by
drawing inferences from the circumstances under which a defendant is arrested, and there
are numerous factual circumstances from which a jury may properly infer that a defendant
had the intent to sell or deliver the drugs found in his possession. See State v. Vincent D.
Steele, No. M2007-00420-CCA-R3-CD, 2008 WL 366147, at *4 (Tenn. Crim. App., Jan. 11,
2008) (citing State v. Toney L. Conn, No. M2005-02899-CCA-R3-CD, 2006 WL 3498048,
at *5 (Tenn. Crim. App., Nashville, Nov. 21, 2006) (setting out the factual scenarios
surrounding a defendant’s possession of cocaine in eight different cases where this Court
found the evidence sufficient to prove intent)).

       Moreover, Tennessee Code Annotated section 39-17-419 specifically sets out that the
requisite intent to sell can be properly inferred from the circumstances surrounding a
defendant’s arrest:




                                               -4-
               It may be inferred from the amount of a controlled substance or
       substances possessed by an offender, along with other relevant facts
       surrounding the arrest, that the controlled substance or substances were
       possessed with the purpose of selling or otherwise dispensing. It may be
       inferred from circumstances indicating a casual exchange among individuals
       of a small amount of a controlled substance or substances that the controlled
       substance or substances so exchanged were possessed not with the purpose of
       selling or otherwise dispensing in violation of the provisions of §
       39-17-417(a). The inferences shall be transmitted to the jury by the trial
       judge’s charge, and the jury will consider the inferences along with the nature
       of the substance possessed when affixing the penalty.

        The jury in the present case found that the Defendant had the intent to sell the cocaine
found in his possession based on the evidence presented at trial. Viewed in a light most
favorable to the State, the evidence presented established: (1) the Defendant possessed 22.2
grams of crack cocaine; (2) the cocaine was sewn into his underwear; (3) 28 grams of crack
cocaine had a “street value” of “about anywhere from a thousand to twelve hundred dollars”;
(4) Sgt. Potts and Officer Owens testified that the large amount suggested intent to sell on
the part of the Defendant; (5) the Defendant had $166 on his person, yet was unemployed;
and (6) there was no drug paraphernalia found on the Defendant’s person or in his car. “[A]
lack of drug paraphernalia, combined with the amount of drugs found in a defendant’s
possession, may support an inference that the defendant possessed the drugs with the intent
to sell or deliver rather than for his own personal use.” State v. Charles Henry Jenkins, No.
M2004-01931-CCA-R3-CD, 2005 WL 1812827, at *8 (Tenn. Crim. App., Aug. 1, 2005)
(citation omitted).

       We conclude that this evidence, and the reasonable inferences it allows, adequately
support the jury’s conclusion that the Defendant possessed the cocaine with the intent to sell
it. The amount of crack cocaine the Defendant possessed (22.2 grams) is more than
sufficient to satisfy the statutory provision under which he was convicted, see Tennessee
Code Annotated section 39-17-417(c)(1) (requiring that the amount of substance containing
cocaine weigh “point five (.5) grams or more”), and the attendant circumstances of his arrest
support the inference that he possessed it with the intent to sell.

II. Sentencing
        Next, the Defendant contends that his sentence was excessive. He submits that the
trial court erred by relying on his juvenile record to increase his sentence to nine years and
that he should have received full probation.




                                              -5-
       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

A. Length
        The Defendant’s conduct occurred subsequent to the enactment of the 2005
amendments to the Sentencing Act, which became effective June 7, 2005. The amended
statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further
explained by our supreme court in Carter,

       the trial court is free to select any sentence within the applicable range so long
       as the length of the sentence is “consistent with the purposes and principles of
       [the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
       and principles include “the imposition of a sentence justly deserved in relation
       to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
       punishment sufficient “to prevent crime and promote respect for the law,”
       [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s



                                              -6-
       “potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
       40-35-103(5).

Id. (footnote omitted).

       The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.

      To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

B. Full Probation
        Effective June 7, 2005, our legislature amended Tennessee Code Annotated section
40-35-102(6) by deleting the statutory presumption that a defendant who is convicted of a
Class C, D, or E felony, as a mitigated or standard offender, is a favorable candidate for
alternative sentencing. Our sentencing law now provides that a defendant who does not
possess a criminal history showing a clear disregard for society’s laws and morals, who has
not failed past rehabilitation efforts, and who “is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary. A court shall
consider, but is not bound by, this advisory sentencing guideline.” Tenn. Code Ann. § 40-35-
102(5), (6) (emphasis added). No longer is any defendant entitled to a presumption that he
or she is a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347.

        The following considerations provide guidance regarding what constitutes “evidence
to the contrary”:



                                              -7-
             (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 . . . .

Tenn. Code Ann. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. 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(2), (4). The
court should also consider the defendant’s potential for rehabilitation or treatment in
determining the appropriate sentence. Tenn. Code Ann. § 40-35-103(5).

        The Defendant is eligible for probation because his actual sentence was less than ten
years, and the offense for which he was sentenced is not specifically excluded by statute. See
Tenn. Code Ann. § 40-35-303(a). However, a defendant bears the burden of proving his or
her suitability for probation. See Tenn. Code Ann. § 40-35-303(b); see also Carter, 254
S.W.3d at 347. No criminal defendant is automatically entitled to probation as a matter of
law. See Tenn. Code Ann. § 40-35-303(b), Sentencing Commission Comments; State v.
Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Rather, the defendant must demonstrate that
probation would serve the ends of justice and the best interests of both the public and the
defendant. See Carter, 254 S.W.3d at 347; State v. Souder, 105 S.W.3d 602, 607 (Tenn.
Crim. App. 2002).

       In determining whether to grant probation, the court must consider the nature and
circumstances of the offense; the defendant’s criminal record; his or her background and
social history; his or her present condition, both physical and mental; the deterrent effect on
the defendant; and the defendant’s potential for rehabilitation or treatment. See Souder, 105
S.W.3d at 607. If the court determines that a period of probation is appropriate, it shall
sentence the defendant to a specific sentence, but then suspend that sentence and place the
defendant on supervised or unsupervised probation either immediately or after the service
of a period of confinement. See Tenn. Code Ann. §§ 40-35-303(c), -306(a).

      Here, the Defendant’s sentence resulted from his conviction for a Class B felony.
Because the Defendant was convicted of a Class B felony, he is not considered a favorable



                                              -8-
candidate for alternative sentencing. In light of his Class B felon status, it is the Defendant
who bears the burden of establishing suitability for an alternative sentencing option.

C. Trial Court’s Ruling
       The trial court imposed a nine-year sentence as a Range I, standard offender for the
Defendant’s Class B felony conviction. As a Range I offender, he was subject to a sentence
of eight to twelve years. See Tenn. Code Ann. § 40-35-112(a)(2).

       In fashioning the Defendant’s nine-year, split confinement sentence, the trial court
ruled as follows:

               In deciding the appropriate sentence, the Court has to consider the
       following: The presentence report, the general principles of sentencing,
       arguments made as to sentencing alternatives by the lawyers, the nature and
       characteristics of the criminal conduct involved, any evidence or information
       offered by counsel regarding mitigating or enhancement factors and any
       statistical information provided by the A.O.C. as to sentencing practices for
       similar offenses in Tennessee as well as any statement that the defendant cares
       to make on his behalf and his potential for rehabilitation or treatment.

              Insofar as the prior record of the [the Defendant], the presentence report
       shows multiple—an extensive juvenile record for him, shows an extensive
       juvenile record for him. He by his own admission was incarcerated by grade
       10. I am not aware of any adult convictions thus far of [the Defendant].

              Insofar as the potential for rehabilitation or treatment, [the Defendant]
       says that he has never used drugs or alcohol and so that would not be a factor
       or a consideration for the [c]ourt being that he has no difficulty with drugs or
       alcohol.

              Insofar as his prior employment and I am talking now about his social
       history. The report doesn’t bear out his employment, particularly insofar as
       working at the Detention Center. He said he worked there for as long as four
       months. Now, my understanding of the report is that the Detention Center said
       he worked there shortly, for a very short period, that he was not even there
       through his background check because once a background check was finished,
       he never called back to continue employment with them and so that’s the
       [c]ourt’s understanding as to that.




                                              -9-
        Insofar as [the Defendant’s] testimony about selling drugs to provide
for his mother who was suffering and his child, the [c]ourt does not believe
that. The [c]ourt does not find [the Defendant] credible in that regard.

       The [c]ourt’s considering that this defendant was on bail, out on bail,
under yet another felony charge when he committed this offense. The [c]ourt
does not observe the obvious remorse of which counsel speaks. I didn’t
observe any remorse. There may be some remorse that he got caught once they
stopped him that night for those tinted windows and discovered that lump of
cocaine on him.

        [The Defendant] will not come clean with the [c]ourt on the specifics
of how much that cocaine was worth and how much money he would have
made off of that 22 grams when the [c]ourt finds that he has the ability to give
that type of testimony. So he is not forthcoming even though you might say
that he has taken some responsibility, he obviously is convicted, he is caught
red-handed and I guess if that’s taking responsibility, then it is. The cocaine
is on him. The stop was good. So I don’t know how you take responsibility
except that he has not told the truth about anything else beyond that cocaine on
him insofar as what it is worth and insofar as what he was going to do with it
and where the money was going. [The Defendant] is not credible before this
[c]ourt today in that regard.

       Insofar as the enhancement factors, the [D]efendant has a previous
history of criminal convictions or criminal behavior in addition to those
necessary to establish the range. How is that, General? How do you figure
that?

       [THE STATE]: He has a criminal history. Due to his age you can
consider [his] juvenile record. In order to establish the range as a Range I
offender, he need not have any prior convictions. I guess in order to be a
[s]tandard Range I offender, he just need not be a mitigating offender. But
Your Honor can certainly find that with his extensive juvenile record that he
has a criminal history in addition to that which is necessary to find that he is
a Range I offender.

      THE COURT: Well, he has a juvenile record of criminal conduct, he
does have that.

       ....

                                      -10-
               The [c]ourt wants to say that also she does not believe the [D]efendant’s
       testimony when he explains this money that was found on him upon arrest and
       does not believe that this money came from any type of employment or an
       legal income.

No mitigating factors were found applicable to the Defendant. See Tenn. Code Ann. § 40-
35-113. The trial court then announced its sentencing decision as follows:

              Now, the [c]ourt having considered all of those factors and provisions
       now sentences [the Defendant] to serve nine years in the Tennessee
       Department of Correction[ ] as a Range I, [s]tandard Offender. Under 40-35-
       306, he is sentenced under split confinement and will serve one year of that
       sentence continuously in the local jail.

D. Appellate Review
        The Defendant argues that the trial court erred by enhancing his sentence based upon
his juvenile record and that the trial court erred by denying his request for full probation.
First, we note that it is unclear from the record whether the trial court actually found the
Defendant’s juvenile record to be a statutory enhancement factor or how much weight the
court gave that factor in determining the Defendant’s sentence. Moreover, the Defendant’s
offense was committed after the effective date of the 2005 amendments to the 1989 Criminal
Sentencing Reform Act, which eliminated presumptive minimum sentences and simply
required sentences to be within the relevant range. Making adjustments to the sentence by
the use of statutory enhancement and mitigating factors is clearly stated to be a non-binding,
advisory guideline for the sentencing court’s consideration along with other relevant
sentencing principles.

        Here, in imposing a nine-year, split-confinement sentence, the trial court discussed
and considered that the Defendant had a extensive juvenile record, a minimal employment
history, a lack of remorse, and a lack of credibility. The Defendant was evasive when
questioned about the underlying offense; he failed to be candid about his employment
history, his reason for selling drugs, and the extent of his involvement in the underlying
offense. The Defendant’s lack of candor in his testimony is a poor reflection on his potential
for rehabilitation. See State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); see
also State v. Michael R. Harness, No. E2004-01946-CCA-R3-CD, 2005 WL 2515780, at *5
(Tenn. Crim. App., Knoxville, Oct. 11, 2005) (court denied alternative sentencing finding,
among other factors, defendant had not shown enough accountability for the offense). The
court also considered that the Defendant was on bail for another charge when he committed
this offense.



                                             -11-
       Although these are not statutory enhancement factors,2 in our view, the reasons stated
are sufficient to support the sentence as enhanced. Even if no statutory enhancement factors
are present, our sentencing laws do not mandate the minimum sentence within the range.
Indeed, such a sentencing structure would violate the Defendant’s Sixth Amendment rights.
See State v. Gomez, 239 S.W.3d 733, 741 (Tenn. 2007) (citing Cunningham v. California,
549 U.S. 270 (2007)); see also Blakely v. Washington, 542 U.S. 296, 301 (2004).

        Our supreme court has held that,

                [i]n determining which sentence within the range to impose, however,
        the trial court is no longer required to begin with a presumptive sentence
        subject to increase and decrease on the basis of enhancement and mitigating
        factors. An appellate court is therefore bound by a trial court’s decision as to
        the length of the sentence imposed so long as it is imposed in a manner
        consistent with the purposes and principles set out in sections -102 and -103
        of the Sentencing Act.

Carter, 254 S.W.3d at 346.

        Under our de novo review, we conclude that the trial judge’s sentence of nine years
is consistent with the purposes and principles of our Sentencing Act. Furthermore, the
Defendant has not carried his burden of establishing his suitability for probation and has not
established that total suspension of his sentence serves the ends of justice or the best interest
of the public. The trial court did not err or abuse its discretion by ordering the Defendant to
serve one year of his sentence in confinement.

                                        Conclusion
        Based upon the foregoing reasoning and authorities, we conclude that the evidence
is sufficient to support the Defendant’s conviction for possession of .5 grams or more of



        2
           “The Defendant has only a juvenile record, which cannot be used to support a finding under
Tennessee Code Annotated section 40-35-114(1) that he ‘has a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range.”” State v. Eddrick Devon
Pewitte, No. W2008-00747-CCA-R3-CD, 2009 WL 29891, at *9 (Tenn. Crim. App., Jackson, Jan. 5, 2009)
(quoting State v. Jackson, 60 S.W .3d 738, 742 (Tenn. 2001)). Additionally, because his prior juvenile
adjudications were not felonies, the juvenile delinquent factor (16) does not apply. See Tenn. Code Ann.
§ 40-35-114(16). Finally, Tennessee Code Annotated section 40-35-114(13)(A) requires that a defendant
released on bail for a prior misdemeanor or felony must ultimately be convicted of that earlier crime in order
for his status as a bailee to be used to enhance his sentence. The record contains no indication that the
Defendant was so convicted.

                                                    -12-
cocaine with the intent to sell. The sentence as imposed is consistent with our 1989 Criminal
Sentencing Reform Act. The judgment of the Maury County Circuit Court is affirmed.




                                                   _________________________________
                                                   DAVID H. WELLES, JUDGE




                                            -13-
