         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE               FILED
                         DECEMB ER SESSION, 1997         January 26, 1998

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE,               )     C.C.A. NO. 03C01-9704-CC-00134
                                  )
           Appe llant,            )
                                  )     SEVIER COUNTY
                                  )
V.                                )
                                  )     HON. BEN W. HOOPER, JUDGE
JERRY RONALD HARRIS,              )
                                  )
           Appellee.              )     (CON SPIRAC Y; SALE OF LS D)




FOR THE APPELLEE:                 FOR THE APPELLANT:

BRYAN E. DELIUS                   JOHN KNOX WALKUP
124 Court Avenue, Suite 201       Attorney General & Reporter
Sevierville, TN 37862
                                  PETER M. COUGHLAN
                                  Assistant Attorney General
                                  2nd Floor, Cordell Hull Building
                                  425 Fifth Avenue North
                                  Nashville, TN 37243

                                  ALFRED C. SCHMUTZER, JR.
                                  District Attorn ey Ge neral

                                  CHAR LES AT CHL EY, JR .
                                  Assistant District Attorney General
                                  Sevier County Courthouse
                                  Sevierville, TN 37862




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       In this case the State appeals as of right from the sentence imposed by the

Circu it Court of Sevier County. The Defendant, Jerry Ronald Harris, ple d guilty to

conspiracy to sell LSD , a Class C felony, and to sale of LSD, a Class B felony. The

trial court ordered the Defend ant to serve six (6) years on the conspiracy charge and

eight (8) yea rs for the sale o f LSD . The s enten ces w ere to b e serve d con curren tly

in the Community Corrections program with the first six (6) months of the sentence

being incarcera tion in the S evier Co unty jail. The State challenges the length of the

sentence for the sale of LSD and m anner o f service of b oth of the Defendant’s

senten ces. W e affirm the judgm ent of the tria l court.



       When the length, range o r the ma nner of s ervice of a sentence is challenged,

this court has a duty to conduct a de novo review of the sentence with a presumption

that the determinations made by the trial court are correct. T enn. C ode An n. § 40-

35-401(d ). This presumption is “conditioned upon the affirmative showing in the

record that the trial court considered the sente ncing prin ciples an d all relevan t facts

and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a sen tence , this court must consider:

(a) the evidence, if any, received 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) any statutory mitigating or enhancement factors; (f) any statement that the

defendant made on his own behalf; and (g) the potential or lack of potential for

rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-1 02, -103 , and -21 0; see

State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).


                                            -2-
      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to th e factors a nd princip les set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may not modify

the sentence even if we would have preferred a differe nt result. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



      At the sentencing hearing, the State did not present any proof other than a

copy of a judgme nt showing D efendant wa s convicted of bu rglary on August 2, 1993

and the “Spe cific Data R eport,” which included other information of his prior record.

The Defendant and several witnesses testified on the Defendant’s behalf. Sh elly

Shular, a former employer of the Defendant, stated that he was an excellent

employee during his two years at her business, Atrium Flowers. Shular stated that

Defe ndan t’s attitude improved thro ughout the tim e he was w orking for her, and that

he was an honest and punctual employee. Shular works with troubled children from

all types of backgrounds, and some of the Defendant’s friends introduced her to the

Defen dant. Shular desc ribed Defen dant as “a young adult who needed acceptance

badly and was going about it all the wrong ways . . . mos t likely out of imm aturity.”

She stated that during the time Defendant worked for her, he was living on his own

while his parents lived in Kentucky. Because he lived on his own, the home became

a hang out for y oung peop le and trouble could transp ire freely.        Shular saw

Defendant hit rock bottom and then begin to change his life. She stated that while

she had never testified on behalf of somebody in a drug situation due to the

extensive harm that drugs can do, she felt that Defendant had a chance at changing

his life. Dur ing this time, D efend ant ha d a diffic ult time finding employment, but

came to her and agreed to perform household cleaning tasks in return for m oney to

suppo rt his family.


                                          -3-
      Robert Ownby, a friend of the Defendant, testified that he met Defendant the

summer prior to his senior year of high school. Defendant was new to the area and

was ostracized by the rest of his peers, even to the point that Defendant was beaten

by others at school. Following graduation, Ownby saw the Defendant start hanging

out with the “wr ong cro wd.” Du ring this time , Defend ant stopped associating w ith

Ownby because Ownby was married and had a child. Following the last convictions

Defendant received, Ownby saw a true change in the Defendant. Defendant had

asked for spiritual co unseling and ap peared to be truly rem orseful.



      J.R. Harris, Sr., the Defenda nt’s father, testified that he move d to Ke ntuck y in

December 1989. He served as the Chief of Police in Middlesboro, Kentucky until he

returned to Ten ness ee in D ecem ber 19 94. Ha rris des cribed his son as an average

student who had never had any violent tendencies and was always w illing to he lp

others in need. Appro ximately s ix (6) mon ths befor e his return to Ten ness ee, H arris

had the first in dicatio n that D efend ant wa s using drugs . Since July 1995 , Harris has

seen a cha nge in the De fenda nt. De fenda nt now has a child that he is trying to take

respon sibility for and raise. He was of the opinion that Defendant has demonstrated

that he is sorry for his actions by voluntarily enrolling in a drug rehabilitation program.




       The Defendant stated that his actions surrounding the convictions were “the

worse [sic] mistake I ever mad e in my entire life.” He testified that he did not make

a living selling dr ugs, no r had he ever sold drugs p rior to the night in question. When

asked to tell why he committed the drug offenses, Defendant stated that he had

received a call from a bank employee a couple of days earlier stating that if he did

not pay a total of three (3) car payments, then th e ban k was going to repo sses s his

car. After going to several banks to try to secure a loan and being refused, the next


                                            -4-
thing Defen dant k new he w as selling LSD to a friend in order to m ake som e extra

money to pay for his car. At that time, Defendant stated that he had a drug problem,

including using LSD, cocaine, Maximum Impact, and marijuana. To cure his drug

addiction, Defen dant voluntarily entered himself in a drug rehabilitation program.

W hile the De fenda nt was in reha bilitation , all his drug screen s were neg ative and he

has be en drug free since then.



       The Defendant stated that the birth of h is son h as ch ange d his life the mo st.

Defendant admitted his m istakes, but stated tha t since his child has b een born he

has not been in any trouble. He has held a steady job and has done whatever he

could to suppo rt his family. D efenda nt is also w orking on a progra m with his friends

to begin v isiting local sc hools to te ach ch ildren abo ut the dan gers of L SD.



                                  L ENGTH OF SENTENCE



       The State argues that the trial court improperly applied three (3) mitigating

factors in dete rmining the Defend ant’s sentence , and even if these factors are

accepted, the sentence should be increased because the trial court did n ot follow its

own findings of fact. Following the proof at the sentencing hearing, the trial court

stated that he took into consideration mitigating and enhancement factors. First, he

noted that he did not consider the mitigating factor of Defendant’s “youth” in that he

lacked substantial judgment in committing the offense. Tenn. Code Ann. § 40-35-

113(6). The trial court stated that he did not “consider that in this case because

[Defendant] had really reached the point that I would not consider [him] to be a

young man, at age twenty-four (2 4), when this offen se was co mmitted. H owever,

the court expanded to say that “even though I am not considering specifically youth,

I have taken into consideration that for other reasons, maybe, you did, obviously,


                                            -5-
lack substantial judgm ent.” Wh ile not specifically stated, it appears that the trial

court was referring to Tennessee Code Annotated section 40-35-113(13), the “catch-

all” mitigating factor, whe reby the tria l court ma y take into consideration any factor

which is c onsisten t with the pu rposes of the 198 9 Sente ncing A ct.



       The next mitigating factor ap plied by the trial court was that the Defendant was

“motivated by desire to provide what is called ne cessities . . . to life. And in this day

and age, mayb e, an autom obile is a necess ity.” See Tenn. Code Ann. § 40-35-

113(7). Anothe r mitigating factor applied by the trial court was that the Defendant

assisted the authorities. Ten n. Code A nn. § 40-35-1 13(9). A letter from a detective

in the narcotics division of the Sevier C ounty S heriff’s De partme nt was inc luded w ith

the record which documents that the Defendant was helping to assist in an ongoing

drug inve stigation.



       Then, the trial court turned to the application of enhancement factors. First,

the trial court found that Defendant, as one who helped to obtain drugs for the

undercover police officer, was a leader in the commission of this offense. Tenn.

Code Ann. § 4 0-35-11 4(2). Also, the trial court stated that Defendant obviously had

a previous history of unwillingness to comply with the conditions of a sentence that

involved release into the comm unity, noting tha t Defend ant was not able to

succ essfu lly complete probation on other matters. Tenn. Code Ann. § 40-3 5-114(8).

The next enhancement factor applied by the trial court was that the Defendant had

no hesitation about committing a crime when the risk to human life was high,

spec ifically referrin g to the nature of the drug LSD. Tenn. Code Ann. § 40-35-

114(10). The final enhancement factor was that the Defendant was on probation for

a burglary offense at the time these offenses were committed. Tenn. Code Ann. §




                                            -6-
40-35-114 (13)(c). The trial court then stated that “the enhancement factors far

outweigh the mitigating factors in this ca se.”



       Upon review of the record , the trial c ourt’s fin dings of the a pplica ble

enhancement and mitigation factors were appropriate, except for the use of the

enhancement factor that the Defendant had no hesitation about committing a crime

when the risk to human life was high. Tenn . Code Ann. § 4 0-35-11 4(10). Without

more than the inherent traits of a drug, the nature of LSD cannot be used to enhance

a sentence under factor (10). Prior case law ha s esta blishe d that th is is true for an

offense involving cocaine and other Schedule II drugs, and we find that the

legislature has also alread y cons idered the inh erent n ature o f the dru g LSD in

determining the length of punishm ent. See State v. Mars hall, 870 S.W.2d 532, 542

(Tenn. Crim. App. 1993). Therefore, the trial court’s application of this enhancement

factor, without any other circumstances present to justify a finding that Defendant

had no hes itation to commit an offense when the risk to human life was high, was

incorrec t.



       The State argues that the Defendant’s sentence should be modified and

increased to eleven (11) years on the LSD sale because the trial court gave weight

to mitigating factors wh ich did no t apply. Th e State c ontend s that even if the trial

court’s application of mitigating and enhancement factors is accepted, a minimum

sentence was u nwarr anted beca use th e trial court specifically ruled that the

enhancement factors outweighed the mitigating factors. For our review, the trial

court must pre serve in the re cord th e facto rs it foun d to ap ply and the sp ecific

findin gs of fact upon which it applied the sentencing principles to arrive at the

sentence. T enn. Cod e Ann. §§ 4 0-35-210(f) an d -209(c).




                                           -7-
       The State c onten ds tha t the D efend ant rec eived th e min imum sente nce fo r his

crimes. In reality, the Defenda nt received the m inimum s entence for the Class B

felony, the sale of LSD , and received the maximu m senten ce for the Class C felony,

conspiracy to sell LSD . Tenn. C ode An n. § 40-3 5-112(2 ) and (3). B eginning with

the presump tive sentence, the trial cou rt must “enhance the sentence within the

range as appropriate for the enhancement factors, and then reduce the sentence

within the range a s appro priate for the mitigating factors.” T enn. C ode An n. § 40-35-

210(b)(e).    Ther e is no math ema tical formula in determ ining the a ppropria te

sentence, rather, the we ight to b e afford ed an existing factor is left to the trial cou rt’s

discretion so long as the court complies with the purposes and principles of the

Sentencing Act and its findings a re adequate ly supporte d by the re cord.           State v.

Hayes, 899 S.W.2d 175, 18 5 (Ten n. Crim. A pp. 199 5). By placing a numeric value

on the enhancement and mitigating factors, that removes the judicial discretion

necessa ry to mak e individua lized sen tencing d etermin ations. Ten n. Cod e Ann. §

40-35-210, Senten cing Co mm ission C omm ents, see State v. Shropsh ire, 874

S.W .2d 634 , 642 (T enn. C rim. App . 1993).



       From our review of the record, it is evident th at the trial c ourt co nside red all

the evidence in this case and, in light of the various mitigating and enhancement

factors, felt that a concurren t sentence of e ight (8) years was the most approp riate

sentence for the D efend ant.       T he pu rpose of sen tencin g is based on general

principles, and the Sentencing Act can only be applied on a case by case basis,

dependent upon the facts of each case and the circum stance s of each defend ant.

State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). While the trial court stated that

the enhance ment factors o utweighed th e mitigating factors, w e have found that one

of these enha ncem ent fac tors relie d upo n by the trial cou rt is inapplicable. Even

though applic ation o f one e nhan cem ent fac tor was in error, the trial court otherwise


                                              -8-
correc tly applied the se ntenc ing prin ciples to the fa cts an d circu msta nces of this

case. The length of sentences imposed were not in error, and this issue has no

merit.



                            M ANNER OF SERVICE OF SENTENCE



         The State argues that the trial court’s placement of the Defendant into the

Com munity Corrections program is improper given the Defendant’s persistent abuse

of probatio n.    The trial court noted that the proof submitted was strong in the

Defe ndan t’s favor. The trial court stated that he believed Defe ndant was sincere and

was ready to conduct himself as an exemplary citizen. He did not perceive the

Defendant to be a drug dealer and thought that ad ditiona l time o f incarc eration would

not, therefore, serve a deterrent effect. The trial court further stated that he was

giving the Defe ndant “a second, if not third or fourth, chance” by placing him on

Com munity C orrection s.


         The Community Corrections Act allows ce rtain eligible o ffenders to participa te

in comm unity-bas ed altern atives to inc arceratio n. Tenn . Code Ann. § 40-36-103.

A defendant must first be a suitable can didate for a lternative se ntencing . If so, a

defendant is then eligible for participation in a community corrections program if he

also satisfies several minimum eligibility criteria set forth at Tennessee Code

Annotated section 40-36-106(a). However, even though an offender meets the

requirem ents of eligibility, the Act does not provide that the offend er is au toma tically

entitled to such relie f. State v. Grandbe rry, 803 S.W.2d 706, 707 (Tenn. Crim. App.

1990); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Rather, the

statute provides that the criteria shall be interpreted as minimum standards to guide




                                            -9-
a trial cou rt’s dete rmina tion of w hethe r that offe nder is eligible for com munity

corrections. Te nn. Code Ann. § 40-3 6-106(d).



      Wh ile Defendan t was not presu med as a favorable can didate for alternative

sentencing under Tennessee Code Annotated sectio n 40-3 5-102 (6), he is eligible.

The record supports the trial court’s conclusion that Defendant was a proper

candid ate for Community Corrections, based upon h is conviction of a drug-related,

non-violent felony offense and the fact that without this option, he would be

incarcerated in a correctional institution.        Tenn. Code Ann. § 40-36-106.

Furthermore, Defendant did not demonstrate a present or past pattern of violence,

and the evidenc e supp orts such a finding. Id.



      Upon our de novo review, the State be ars the burd en of proving that the

sentence is improper. Tennessee Code Annotated section 40-35-102(3)(C) states

that “Punishment shall be imposed to prevent crime and promote respect for the law

by enco uragin g effec tive reh abilitatio n of tho se de fenda nts, wh ere rea sona bly

feasible, by promoting the use of alternative sentencing and correctional programs

that elicit voluntary cooperation of defendants.”       While the State argues the

Defendant is an unsuitable candidate because he has failed to fully com ply with the

terms of prob ation o n an e arlier se ntenc e, the tria l court has the d iscretion to

determine that this Defendant is a suitable candidate based upon his remorse and

the fact that he was a co ntributing m embe r of society at the time of the sentencing

hearing. A defendant’s expression of great remorse is a proper consideration for the

trial court during sen tencing. See State v. Bingham, 910 S.W.2d 448, 454 (Tenn.

Crim. App. 1995). During the sentencing hearin g, the D efend ant sp oke fre ely of his

remorse for his action s and of his inte nt to rem ain so ber in o rder to supp ort his

family. In addition, Defendant demonstrated his ability to support himself and to be


                                          -10-
a productive member of the community by work ing on a re gular ba sis. The State

has n ot me t its burd en on appe al.



       Based u pon our de novo review of the re cord, w e fail to find any error in the

length or the m anner o f service of th e Defe ndant’s sentence.       We affirm the

judgm ent of the tria l court.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
DAVID H. WELLES , Judge


___________________________________
DAVID G. HAYES, Judge




                                         -11-
