         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 7, 2001

                STATE OF TENNESSEE v. MICHAEL A. FOSTER

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 99-00066    Arthur T. Bennett, Judge



                    No. W2000-01838-CCA-R3-CD - Filed August 21, 2001


The Appellant, Michael A. Foster, was indicted by a Shelby County Grand Jury for possession of
cocaine in excess of .5 gram, a class B felony. Under the terms of a plea agreement, Foster pled
guilty to criminal attempt to possess cocaine less than .5 gram, a class D felony. The plea agreement
further provided that Foster would receive a sentence of two years with the manner of service of the
sentence to be determined by the trial court. Following a sentencing hearing, the trial court ordered
that Foster’s two-year sentence be served in confinement in the Shelby County Correction Center.
On appeal, Foster argues that the trial court erred in denying an alternative sentence. Finding no
error, we affirm the judgment of the trial court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN,
JJ., joined.

William D. Massey, Memphis, Tennessee, for the Appellant, Michael A. Foster.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E.
Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and David
Pritchard, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        On May 1, 1998, Memphis police officers executed a search warrant at the Appellant’s
residence. Upon entering the residence, officers observed the Appellant disposing of cocaine in
the kitchen sink. After a further search, officers found 8.2 grams of cocaine in the Appellant’s
bedroom, and recovered 1.1 grams of cocaine from the kitchen sink.
        On June 30, 2000, a sentencing hearing was conducted by the trial court which developed
the following facts. The Appellant is thirty-eight years old and received his GED while
incarcerated in the Kentucky Corrections System. The Appellant’s prior criminal history
involves sixteen convictions, including four misdemeanor drug offenses for possession of
cocaine and marijuana, and two felony drug offenses for possession of cocaine with intent to sell.
The two felony offenses occurred in Kentucky in 1990, where the Appellant received consecutive
five-year sentences. The Appellant was paroled to Tennessee in 1991. In 1993, his parole was
revoked. After serving additional time, he was again paroled to Tennessee in December 1993.
At the time of the current offense, the Appellant was on parole for the 1990 Kentucky felony
drug convictions. The trial court denied the Appellant an alternative sentence and imposed total
confinement for the following reasons: (1) the Appellant’s long history of criminal conduct, (2)
confinement was necessary to avoid depreciating the seriousness of the offense, (3) confinement
was particularly suited for the Appellant to provide an effective deterrent, and (4) the Appellant’s
failure at rehabilitation by less restrictive sentences.

                                            ANALYSIS

        The Appellant contends that the trial court erred by denying his request for an alternative
sentence and, specifically, the alternative sentence of community corrections. When the
sentencing court properly considers the relevant sentencing considerations, this court conducts a
de novo review with the presumption that the determination made by the trial court is correct.
Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In
the present case, the trial court properly considered principles of sentencing. Accordingly, the
sentence is afforded the presumption of correctness.

        The Appellant maintains the burden of showing that his sentence of total confinement is
improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments, (1997); Ashby,
823 S.W.2d at 169. In making our review, this court must consider the evidence presented at the
sentencing hearing, the presentence report, the principles of the sentencing, the arguments of
counsel, the nature and characteristics of the offense, any applicable enhancement or mitigating
factors, any statements made by the Appellant, and the Appellant’s potential for rehabilitation.
Tenn. Code Ann. § 40-35-102, -103, -210 (1997); Ashby, 823 S.W.2d at 168.

        Because the Appellant was convicted as a range 1 offender for a class D felony, he is
presumed to be a favorable candidate for an alternative sentence, absent evidence to the contrary.
Tenn. Code Ann. § 40-35-102(5), (6) (1997). Evidence to the contrary may be established if it is
shown that the Appellant has a long history of criminal conduct, that confinement is necessary to
avoid depreciating the seriousness of the offense, that confinement is particularly suited for the
Appellant to provide an effective deterrent, or that the Appellant has not been rehabilitated with
less restrictive methods. Tenn. Code Ann. § 40-35-103(1)(A)-(C) (1997).

        In the present case, we find that the trial court properly denied the Appellant’s request for
alternative sentencing, based upon its finding of (1) an extensive history of criminal activity, (2)


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the need to avoid depreciating the seriousness of the offense, (3) that confinement is particularly
suited for the Appellant to provide an effective deterrent, and (4) the failure of previously
imposed sentences to provide effective rehabilitation. Any one of these factors is sufficient
under the provision of Tenn. Code Ann. § 40-35-103(1) (A), (B), or (C) to defeat entitlement to
an alternative sentence. The proof is replete with “evidence to the contrary,” justifying the trial
court’s imposition of total confinement.


                                         CONCLUSION

        After review of the issues before us, we conclude that the trial court did not err by
denying the Appellant’s request for an alternative sentence. The Appellant has failed to establish
that the sentence of total confinement as imposed by the trial court was improper. Accordingly,
the judgment of the trial court is affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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