            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           MAY SESSION, 1999         FILED
                                                      July 28, 1999

                                                Cecil W. Crowson
STATE OF TENNESSEE,         )
                                              Appellate Court Clerk
                            )    No. 01C01-9804-CC-00187
      Appellee              )    CONSOLIDATED WITH
                                 01C01-9702-CC-00047

                            )    RUTHERFORD COUNTY
vs.                         )
                            )    Hon. J. S. Daniel, Judge
ANTONIO E. JENKINS,         )
                            )    (Sale of Cocaine over .5 grams, 4 cts.)
      Appellant             )



For the Appellant:               For the Appellee:

Joe M. Brandon, Jr.              John Knox Walkup
Attorney for Appellant           Attorney General and Reporter
304 S. Lowry Street
Smyrna, TN 37167                 Daryl J. Brand
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 William C. Whitsell, Jr.
                                 District Attorney General
                                 Third Floor, Judicial Building
                                 Murfreesboro, TN 37130




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                       OPINION



       The appellant, Antonio E. Jenkins, appeals the sentencing decision of the

Rutherford County Circuit Court following his guilty pleas to four counts of sale of

cocaine over .5 grams, a Class B felony. The terms of the plea agreement provided

that the appellant would receive an eight year sentence for each count and the court

would determine whether concurrent or consecutive sentencing was appropriate, as

well as the manner of service of the sentence. In September of 1996, at the first

sentencing hearing, the trial court ordered that two of the eight year sentences run

consecutively for an effective sixteen year sentence. The court also found the

appellant statutorily ineligible for probation. The appellant appealed both the denial

of probation and imposition of consecutive sentences. In State v. Antonio E.

Jenkins, No. 01C01-9702-CC-00047 (Tenn. Crim. App. at Jackson, Dec. 31, 1997),

this court, upon motion by the State conceding eligibility for probation, remanded

this case to the trial court to determine whether the appellant was entitled to

probation. The issue of consecutive sentences was reserved pending entry of a

final order in the trial court.



       A new sentencing hearing was held on February 2, 1998. Again, the trial

court denied probation. This sentencing decision was again appealed. By order of

this court on October 28, 1998, the initial appeal was consolidated with the instant

appeal. On consolidated appeal after remand, the appellant again challenges both

the trial court’s imposition of consecutive sentences and the denial of probation.



       After review, the judgment of the trial court is affirmed.




                                    BACKGROUND


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      Following the appellant’s guilty pleas on August 14, 1996, a sentencing

hearing was conducted on September 23, 1996. The appellant’s pleas arise from

four separate sales of cocaine on April 9, 12, 16, and 19, in which he sold cocaine to

a confidential informant. In each respective sale, the amount of cocaine involved

was .9 grams for $140, .9 grams for $150, .8 grams and .7 grams for $120, and 1

gram for $100.



      At the first sentencing hearing, the appellant testified that he was thirty-two

years old. Although the appellant is unmarried, he has three children and at that

time was expecting his fourth. The appellant received a dishonorable discharge

from the Navy. He had been employed three weeks prior to sentencing at Better-Bilt

as a “material handler.” Prior to this brief employment, the appellant related that he

was employed by Todd Loggins on a part-time basis in the aluminum siding

business. The appellant advised that he was paid “under the table” by Loggins.

This employment could not be verified and the presentence officer was unable to

locate a mailing address for this business.



       On cross-examination, the appellant provided that “I just chose . . . to make

my living from which [sic] was wrong [sale of cocaine].” After losing his job with

Vintec in February of 1995, he testified that he began selling cocaine in April of 1995

and continued to do so “up to the point I got caught,” in July 1996. The presentence

report reflects that the appellant has three misdemeanor convictions for assault, one

for reckless endangerment, and one for simple possession of cocaine. Additionally,

his record contains seventeen traffic related offenses, including three convictions for

driving on a revoked license. The appellant has been placed on probation on at



least two prior occasions and has been noncompliant with the conditions placed

upon him.




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       At the conclusion of the hearing, the trial court observed:

       [The appellant] has a prior criminal record. He’s been on probation
       both supervised and unsupervised before. He has a prior conviction in
       ‘94 for cocaine. That was reduced to a simple possession conviction.
               He is a person who devoted his life to the sale of drugs and
       derived his major source of livelihood from that activity. For over a
       year he had no lawful employment, can demonstrate no lawful
       employment during that period of time.
               Under [Tenn. Code Ann. §] 40-35-115(B1) [sic] he qualifies . . .
       for consecutive sentences. I’m going to run two of these sentences
       consecutive. The balance run [sic] concurrent. The application is
       denied because of his record, and the length of sentence making him
       ineligible for probation.


       On February 2, 1998, upon remand from this court to consider the appellant’s

eligibility for probation, the trial court’s order states that “considering his record and

past performance,” probation was again denied.



                                    I. SENTENCING

       This court’s review of the length, range, or manner of service of a sentence is

de novo with a presumption that the determination made by the trial court is correct.

Tenn. Code Ann. § 40-35-401(d) (1990). See also State v. Bingham, 910 S.W.2d

448 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). This presumption is

only applicable if the record demonstrates that the trial court properly considered

relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The record reflects that the trial court considered the relevant principles of

sentencing; accordingly, the presumption is afforded.



       Upon de novo review, this court must consider the evidence heard at trial and

at sentencing, the presentence report, the arguments of counsel, the nature and

characteristics of the offense, any mitigating and enhancement factors, the

defendant’s statements, and the defendant’s potential for rehabilitation. Tenn. Code

Ann. § 40-35-102 (1996 Supp.); Tenn. Code Ann. § 40-35 -103(5)(1990); Tenn.

Code Ann. § 40-35 -210(b) (1996 Supp.); see also State v. Byrd, 861 S.W.2d 377,

379 (Tenn. Crim. App. 1993).


                                           4
                          A. CONSECUTIVE SENTENCES

      The appellant first contends the trial court erred in finding him to be a

professional criminal. See Tenn. Code Ann. § 40-35-115(b)(1) (1990). The

consecutive sentencing classification provisions of Tenn. Code Ann. § 40-35-115

are, in essence, a codification of the holdings in Gray v. State, 538 S.W.2d 391

(Tenn. 1976) and State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). See Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-115. The first four criteria, which

include section 115(b)(1), professional criminal, were taken directly from Gray.

Sentencing Commission Comments, Tenn. Code Ann. § 40-35-115. Gray defines

the professional criminal as “one who has knowingly devoted himself to criminal acts

as a major source of livelihood or who has substantial income or resources not

shown to be derived from a source other than criminal activity.” Gray, 538 S.W.2d

at 393.



      The appellant argues that his testimony that he worked “odd jobs and

construction work” refutes that he was not a professional criminal as intended by the

statute. He also argues that his candid nature with the court is “probative for

rehabilitation.” Thus, he contends that his sentences should run concurrently. The

State argues that consecutive sentences were appropriate based upon the

appellant’s admissions of selling drugs for one year without other verifiable

employment during this period.




       The record reflects the appellant’s admissions of “mak[ing] my living” and “life

of drug dealing.” His own testimony reveals that this lifestyle continued for one year

only receiving money “under the table” after losing his employment with Vintec in

February of 1995. Accordingly, the evidence does not preponderate against the trial

court’s finding that the appellant was a professional criminal unable to establish any

other verifiable source of income other than through his criminal activity.


                                         5
       Additionally, we must determine, in accordance with the Sentencing

Commission Comments to Tenn. Code Ann. § 40-35-115, whether the consecutive

sentences are necessary to protect the public from the possibility of the appellant’s

future criminal conduct and whether the aggregate sentence is reasonably related to

the severity of the present offenses. See also State v. Wilkerson, 905 S.W.2d 933,

939 (Tenn. 1995); Taylor, 739 S.W.2d 227; Gray, 538 S.W.2d 391.



       From our de novo review of the record, we conclude the trial court did not err

in imposing consecutive sentences. Based upon the appellant’s admissions, his

extensive criminal history, and his prior unsuccessful attempts at rehabilitation, the

record supports that confinement is necessary to protect the public from the

appellant’s future criminal conduct. Furthermore, considering the four counts

involved in the instant case, consecutive sentences are reasonably related to the

severity of the crimes.



                                    B. PROBATION

       The appellant challenges the trial court’s denial of an alternative sentence,

specifically probation. Although he has previously been placed on supervised

probation, the appellant argues that he has not been placed on intensive probation

or split confinement. Initially, we note the appellant is not entitled to the

presumption for an alternative sentencing option because he was convicted of four

Class B felonies. See Tenn. Code Ann. § 40-35-102(6). Moreover, because the

appellant “has a long history of criminal conduct” and “measures less restrictive than

confinement” have proven unsuccessful, confinement is necessary. Tenn. Code

Ann. § 40-35-103(1)(A) and (C). The appellant has failed to carry his burden of

establishing his entitlement to a sentence other than one of total confinement. See

Bingham, 910 S.W.2d at 455. We find no error of law mandating reversal of the trial

court’s judgment.




                                          6
     The judgment of the trial court is affirmed.




                                 ____________________________________
                                 DAVID G. HAYES, Judge



CONCUR:



____________________________________
JERRY L. SMITH, Judge



____________________________________
NORMA MCGEE OGLE, Judge




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