        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 24, 2009

           STATE OF TENNESSEE v. WILLIAM LADONTE DAVIS

               Direct Appeal from the Circuit Court for Bedford County
                         No. 16450     Robert Crigler, Judge




                  No. M2009-00138-CCA-R3-CD - Filed May 21, 2010


The appellant, William Ladonte Davis, pled guilty to possession of .5 grams or more of a
substance containing cocaine with the intent to sell and conspiracy to sell cocaine, receiving
sentences of eleven years and five years, respectively. On appeal, the appellant challenges
the trial court’s denial of alternative sentencing, specifically contending that he should have
been sentenced to probation or community corrections. Upon review, we affirm the
judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, William Ladonte
Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The Bedford County Grand Jury returned a multi-count indictment charging the
appellant in count one with possession of .5 grams or more of a substance containing cocaine
with the intent to sell, a Class B felony; in count two with possession of .5 grams or more of
a substance containing cocaine with the intent to deliver, a Class B felony; and in count three
with conspiracy to sell or deliver cocaine, a Class C felony. On September 15, 2008, the
appellant entered guilty pleas to all of the charged offenses. The plea agreement provided
that the trial court would determine the length and manner of service of the sentences.

       At the guilty plea hearing, the State recited the following factual basis for the charges:

              [O]n the date alleged in the indictment, agents of the Drug Task
              Force executed a search warrant at a residence here in
              Shelbyville. Upon making entry the [appellant] and his co-
              defendant Talisha Sparrow were found in the residence. They
              first spoke to Ms. Sparrow and she indicated where some illegal
              drugs were hidden in the house. They then spoke to the
              [appellant] and he indicated where some additional illegal drugs
              were hidden in the house. They conducted a search. They
              uncovered a substantial amount of crack cocaine and a large
              sum of money. They also discovered digital scales. The money
              [totaled] just a few dollars shy of $9000. Crack cocaine – there
              was testing done on 45.9 grams of it. There was an additional
              quantity of 21.3 [grams] which had all of the characteristics of
              crack cocaine although not tested so you have about 67 grams of
              crack cocaine that was seized.

                     The [appellant] did give a statement to the authorities that
              he had been involved in the illegal distribution of crack cocaine
              for about a year. He indicated that he was purchasing two to
              four ounces of crack cocaine twice a week from an individual in
              Nashville and that he typically paid around $2600 for every four
              and a half ounces of crack cocaine.

                     And he indicated that he had been dating the co-
              defendant Talisha Sparrow for [a] few months. During that
              timeframe [sic] he had been bringing crack cocaine here to
              Shelbyville and selling it from Ms. Sparrow’s apartment. Then
              again he indicated where various illegal drugs and money and
              such were hidden.

       Defense counsel informed the trial court that the appellant disputed the statement that
he admitted selling cocaine. However, he did not deny that he was selling cocaine. The trial
court accepted the appellant’s guilty pleas and scheduled a sentencing hearing.

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        As an exhibit at the sentencing hearing, the State submitted a copy of the appellant’s
presentence report. Additionally, Timothy Lane, the director of the Seventeenth Judicial
District Drug Task Force, testified that crack cocaine was the “greatest [drug] problem”
within the district. Director Lane said that the amount of crack cocaine found at the
apartment was a “major seizure,” ranking within the top five percent of all crack cocaine
seizures in fourteen years. Director Lane stated that the amount of money seized, $8,959,
and the digital scales at the apartment indicated that the money was derived from the sale of
illegal drugs. Director Lane testified that the appellant admitted he had sold crack cocaine
from Sparrow’s apartment “for some period of time.” Director Lane stated that there was a
need to deter “this type of activity” within the Seventeenth Judicial District.

         In making its sentencing determination, the trial court found that the appellant was a
standard, Range I offender. The trial court merged the convictions of possession with intent
to sell and possession with intent to deliver. The court applied one enhancement factor, that
the appellant has a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range. See Tenn. Code Ann. § 40-35-114(1).
The court noted that the appellant did not have any prior felony convictions but that he did
have a misdemeanor history of disorderly conduct, resisting arrest, criminal trespass,
possession of marijuana, and casual exchange. Additionally, the court noted that the
appellant admitted to Director Lane that he sold crack cocaine for about one year, indicating
a significant history of criminal conduct. The court stated that it would apply mitigating
factor (1), that the appellant’s criminal conduct neither caused nor threatened serious bodily
injury, and (13) that the appellant saved the State the expense of a trial by pleading guilty.
See Tenn. Code Ann. § 40-35-113(1) and (13). The trial court imposed a sentence of eleven
years for possession of cocaine with the intent to sell and five years for conspiracy to sell or
deliver cocaine and ordered the sentences to be served concurrently.

       The trial court found that the appellant was not an appropriate candidate for
alternative sentencing. The trial court said that to grant an alternative sentence would
depreciate the seriousness of the offense, a sentence of confinement would serve as a
deterrent to the appellant and to the community, and measures less restrictive than
confinement had been applied unsuccessfully to the appellant. On appeal, the appellant
challenges the trial court’s denial of alternative sentencing, arguing that he should have been
placed on community corrections.

                                         II. Analysis

      Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2006). In conducting its de novo review, this court
considers the following factors: (1) the evidence, if any, received at the trial and the

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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) evidence and information offered by the parties on enhancement and mitigating
factors; (6) any statistical information provided by the administrative office of the courts as
to sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant
in his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).
The burden is on the appellant to demonstrate the impropriety of his sentence(s). See Tenn.
Code Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the
trial court adequately considered sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

        An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a) (2006). Moreover, an appellant who
is an especially mitigated or standard offender convicted of a Class C, D, or E felony should
be considered a favorable candidate for alternative sentencing absent evidence to the
contrary. See Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated section 40-35-
103(1) sets forth sentencing considerations which are utilized in determining the
appropriateness of alternative sentencing:

              (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.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a
court should consider the defendant’s potential or lack of potential for rehabilitation when
determining if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-35-
103(5).

      In the instant case, the appellant is a standard Range I offender convicted of a Class
B felony and a Class C felony. Because of the Class B felony conviction, he is not
considered to be a favorable candidate for alternative sentencing. Moreover, the appellant

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received a sentence of eleven years, making him ineligible for probation. See Tenn. Code
Ann. § 40-35-303(a). Therefore, the trial court did not err in denying the appellant a
probationary sentence.

       Turning to the appellant’s community corrections claim, we note that the Community
Corrections Act of 1985 was enacted to provide an alternative means of punishment for
“selected, nonviolent felony offenders in front-end community based alternatives to
incarceration.” Tenn. Code Ann. § 40-36-103. Tennessee Code Annotated section
40-36-106(a)(1) provides that an offender who meets all of the following minimum criteria
shall be considered eligible for community corrections:

             (A) Persons who, without this option, would be incarcerated in
             a correctional institution;

             (B) Persons who are convicted of property-related, or drug- or
             alcohol-related felony offenses or other felony offenses not
             involving crimes against the person as provided in title 39,
             chapter 13, parts 1-5;

             (C) Persons who are convicted of nonviolent felony offenses;

             (D) Persons who are convicted of felony offenses in which the
             use or possession of a weapon was not involved;

             (E) Persons who do not demonstrate a present or past pattern of
             behavior indicating violence;

             (F) Persons who do not demonstrate a pattern of committing
             violent offenses . . . .

      For offenders not eligible for community corrections under subsection (a), Tennessee
Code Annotated section 40-36-106(c) creates a “special needs” category of eligibility.
Subsection (c) provides that

             [f]elony offenders not otherwise eligible under subsection (a),
             and who would be usually considered unfit for probation due to
             histories of chronic alcohol or drug abuse, or mental health
             problems, but whose special needs are treatable and could be
             served best in the community rather than in a correctional



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              institution, may be considered eligible for punishment in the
              community under the provisions of this chapter.

Tenn. Code Ann. § 40-36-106(c).

        The appellant contends that he is eligible for community corrections under subsection
(a) and subsection (c). However, this court has previously concluded that an offender must
first be eligible for probation to qualify for community corrections under the “special needs”
provision of subsection (c). State v. Grigsby, 957 S.W.2d 541, 546 (Tenn. Crim. App. 1997).
Therefore, because the appellant is not eligible for probation, he is not eligible for
community corrections under subsection (c).

       However, this court has previously held that “eligibility for probation is not required
for consideration of community corrections under section (a).” State v. Vincent Johnson, No.
W2008-02156-CCA-R9-CD, 2009 WL 3349291, at *3 (Tenn. Crim. App. at Jackson, Oct.
19, 2009); see also State v. John W. Biaselli, No. M2007-00129-CCA-R3-CD, 2008 WL
741481, at *5 (Tenn. Crim. App. at Nashville, Mar. 20, 2008). Regardless, eligibility for
community corrections does not automatically entitle an offender to receive a community
corrections sentence. Johnson, No. W2008-02156-CCA-R9-CD, 2009 WL 3349291, at *3.

      In the instant case, the trial court found that alternative sentencing was not
appropriate. Specifically, the trial court stated:

              I do credit Director Lane’s testimony that . . . incarceration is
              necessary to avoid depreciating the seriousness of the offense
              and is particularly suited to provide an effective deterrent to
              people likely to commit similar offenses. Furthermore, less
              restrictive measures than confinement have been applied
              unsuccessfully to the [appellant] in the past . . . . [Additionally,]
              he has a long history of criminal conduct. I’m not sure he has a
              long history, but he certainly does have a history, so certainly
              that in conjunction with the need for deterrence and the fact that
              he has had probation in the past is sufficient to deny alternative
              sentencing.

       The appellant has previously received probation on three misdemeanor sentences, yet
he has continued to violate the law, demonstrating a lack of rehabilitative potential. By his
own admission, he was engaged in the sale of crack cocaine for at least a year. Moreover,
Director Lane stated that crack cocaine was the biggest drug problem in the district and that
the seizure of crack cocaine in the instant case was one of the largest in the past fourteen

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years, indicating the need for deterrence in the community and the seriousness of the
appellant’s offense. We conclude that there is nothing in the record to preponderate against
the trial court’s finding that the appellant was not an appropriate candidate for alternative
sentencing.

                                     III. Conclusion

       Accordingly, we affirm the judgments of the trial court.


                                                   ___________________________________
                                                   NORMA McGEE OGLE, JUDGE




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