        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE            FILED
                        MARCH 1999 SESSION
                                                     July 19, 1999

                                                 Cecil W. Crowson
                                                Appellate Court Clerk
STATE OF TENNESSEE,         *    C.C.A. # 01C01-9804-CR-00183

           Appellee,        *    DAVIDSON COUNTY

VS.                         *    Honorable Seth Norman, Judge

TOMMY EDWARD SMITH,         *    (Delivery of Controlled Substance)

           Appellant.       *



FOR THE APPELLANT:               FOR THE APPELLEE:

SAM WALLACE, SR.                 JOHN KNOX WALKUP
227 Second Avenue N.             Attorney General & Reporter
Nashville, TN 37201
                                 GEORGIA BLYTHE FELNER
                                 Counsel for the State
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 VICTOR S. (TORRY) JOHNSON III
                                 District Attorney General

                                 JOHN C. ZIMMERMAN
                                 Assistant District Attorney General
                                 Washington Square, Suite 500
                                 222 Second Avenue N.
                                 Nashville, TN 37201-1649




OPINION FILED: _______________




AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

      The defendant, Tommy Edward Smith, pleaded guilty to three deliveries of

cocaine, a Schedule II substance. He twice delivered .5 or more grams of

cocaine, and the remaining delivery involved twenty-six or more grams of

cocaine. Each violation constituted a separate Class B felony. The Davidson

County Criminal Court sentenced the defendant as a Range I offender to three

concurrent eight-year sentences in the Tennessee Department of Correction

(TDOC). The defendant appeals, asserting that the trial court erroneously

denied him Community Corrections. We AFFIRM the trial court’s judgment.



                                 BACKGROUND

       The submitted record includes a transcript, which comprises testimony of

the defendant and two witnesses, testimony of a codefendant sentenced at the

same hearing, and the trial court’s findings.



       The first witness, Latonya Flenoy, testified that she was the defendant’s

girlfriend. According to Flenoy, the defendant had no regular employer.

However, various persons would call him for “handyman” jobs, and she claimed

that he worked approximately thirty hours per week on these jobs.



       The defendant’s mother, Christine Denise Williams, essentially testified

that she would help her son succeed in Community Corrections. Williams is a

Director of Operations with Shoney’s Inc. and promised to help her son obtain a

job. She candidly stated that she would not support him if he continued pursuing

criminal activities. She would, however, devote herself to helping the defendant

with the consequences of his current convictions.



       The defendant guaranteed his compliance with any restrictions imposed

under a Community Corrections sentence. On cross-examination, when asked

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the name of his cocaine source, the defendant replied, “Well, see, I didn’t know

his name.” His counsel obtained a brief recess, conferred with his defendant,

and cross-examination resumed.



       The state pursued the source’s identity, and the defendant asserted that

his source, Gary Douglas, had died. The defendant’s further testimony on this

point was not enlightening. The defendant had only known Douglas “a couple of

months,” yet Douglas would advance him at least one and one-half ounces of

cocaine. The defendant first testified that he did not know Douglas’s

accomplices and never saw him with other people. However, the defendant

subsequently described a busy nightclub scene where he apparently met and

assumedly cultivated some relationship with Douglas. The defendant vaguely

described the mechanics of the interaction: They were “all in the club . . .

mingling and talking.”



       In short, the defendant claimed a paucity of knowledge regarding

Douglas’s business, stating that he “didn’t know much about it” and “didn’t know

much about [Douglas].” Ignorant as to Douglas’s residence, the defendant had

contacted him through a pager number.



       Regarding the defendant’s relationship with codefendant Beverly D. Ray,

the defendant testified that he provided drugs “[m]aybe two - maybe two or three

times” to Ray before the three transactions leading to his convictions.



       During the final and largest transaction, two male subjects in a vehicle

followed the defendant from one location to another, apparently conducting

countersurveillance. The defendant noticed the subjects “riding around in the

area” but denied any further knowledge of them.




                                        -3-
       After the defendant testified, the trial court commented that the defendant

was covering for accomplices and protecting involved parties, including the

apparent countersurveillance. The trial court could not anticipate a “straight

answer” from the defendant.



       The record comprises codefendant Beverly D. Ray’s sentencing hearing

testimony. She testified that she not only obtained the drugs for the three sales

from the defendant but also had obtained drugs for her personal use prior to the

transactions. Before these transactions, she had seen the defendant with drugs

and knew he was a dealer. According to Ray, the defendant could have

provided the two ounces of cocaine she originally anticipated delivering in the

third transaction.



       At the conclusion of the hearings, the trial court assessed the defendant

as a Range I offender and found neither enhancing nor mitigating factors. At a

subsequent proceeding, the trial court denied Community Corrections.



                                    ANALYSIS

       The defendant asserts only that the trial court abused its discretion by

denying Community Corrections. When an accused challenges the length or

manner of service of a sentence, this Court reviews the record de novo “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). The presumption of

correctness is contingent on the record indicating both the lower court’s reasons

for arriving at a sentencing decision and compliance with the statutory

sentencing guidelines and principles. See State v. Wilkerson, 905 S.W.2d 933,

934 (Tenn. 1995). The appellant bears the burden of showing that the

sentencing was improper. See Tenn. Code Ann. § 40-35-401(d) sentencing

comm’n cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).


                                        -4-
The following considerations apply: (1) the evidence received at trial and at the

sentencing hearing; (2) the presentence report; (3) the principles of sentencing

and arguments as to sentencing alternatives; (4) the nature and characteristics

of the criminal conduct involved; (5) any statutory mitigating or enhancement

factors; (6) any statement made by the accused on his own behalf; and (7) the

potential or lack of potential for rehabilitation or treatment. See Tenn. Code

Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn.

Crim. App. 1987).



       The established criteria for sentencing to Community Corrections are as

follows:

       (1) Persons who, without this option, would be incarcerated in a
           correctional institution;
       (2) Persons who are convicted of property-related, or drug/alcohol-
           related felony offenses or other felony offenses not involving
           crimes against the person as provided in title 39, chapter 13,
           parts 1-5;
       (3) Persons who are convicted of nonviolent felony offenses;
       (4) Persons who are convicted of felony offenses in which the use
           or possession of a weapon was not involved;
       (5) Persons who do not demonstrate a present or past pattern of
           behavior indicating violence;
       (6) Persons who do not demonstrate a pattern of committing
           violent offenses

Tenn. Code Ann. § 40-36-106(a).



       Even if the defendant met these criteria, eligibility for Community

Corrections does not mandate that alternative sentencing. Community

Corrections is a “community based alternative[ ] to incarceration.” Tenn. Code

Ann. § 40-36-103(1) (emphasis provided). Relevant provisions of the Criminal

Sentencing Reform Act govern application of alternative sentencing, including

Community Corrections. See State v. Ashby, 823 S.W.2d 166 (Tenn. 1991) (On

reviewing an appeal from denied Community Corrections, the Tennessee

Supreme Court applied the statute for that time period regarding probation.).




                                        -5-
       Therefore, “[i]n reviewing a trial court’s denial of an alternative sentence,

we must first determine whether the appellant is entitled to the statutory

presumption that he is a favorable candidate for alternative sentencing.” State v.

Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). The defendant, convicted

of three Class B felonies, is not “presumed to be a favorable candidate for

alternative sentencing options.” Tenn. Code Ann. § 40-35-102(b).



       Further, the trial court found that the defendant’s testimony lacked candor

and truthfulness. “Generally, this [C]ourt will not set aside findings of fact made

by the trial court after an evidentiary hearing unless the evidence contained in

the record preponderates against the trial court’s findings.” Zeolia, 928 S.W.2d

at 462. We conclude that the evidence does not preponderate against the trial

court’s findings.



       Untruthful testimony reflects adversely on a defendant’s rehabilitative

potential and is thus relevant in determining appropriate sentence alternatives.

See Tenn. Code Ann. § 40-35-103(5). Such testimony may constitute the sole

bar to alternative sentencing. See State v. Dowdy, 894 S.W.2d 301 (Tenn. Crim.

App. 1994).



       By statute, the trial court could not presume that the defendant merited

alternative sentencing. The defendant’s own testimony dissuaded the trial court

from otherwise considering Community Corrections. The trial court committed

no error by denying Community Corrections.




                                         -6-
                              CONCLUSION

     The judgment of the trial court is AFFIRMED.




                                      _____________________________
                                      JOHN EVERETT W ILLIAMS, Judge




CONCUR:




_____________________________
DAVID H. WELLES, Judge




_____________________________
JOE G. RILEY, Judge




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