        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE             FILED
                     NOVEMB ER SESSION, 1996       October 30, 1997

                                                Cecil W. Crowson
STATE OF TENNESSEE,       )                   Appellate Court Clerk
                               C.C.A. NO. 01C01-9601-CC-00042
                          )
      Appellee,           )
                          )
                          )    RUTHERFORD COU NTY
VS.                       )
                          )    HON. J. S. DANIEL
KAREN MCKNIGHT,           )    JUDGE
                          )
      Appe llant.         )    (Sentencing/Sale of Cocaine)


               ON APPEAL FROM THE JUDGMENT OF THE
              CRIMINAL COURT OF RUTHERFORD CO UNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

NED JACKSON COLEMAN            JOHN KNOX WALKUP
108 North Spring Street        Attorney General and Reporter
Suite 108
Murfreesboro, TN 37130         KAREN M. YACUZZO
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               WILLIAM W HITESELL
                               District Attorney General
                               Third Floor, Judicial Building
                               Murfreesboro, TN 37130



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                OPINION

      This is an appeal pursuant to R ule 3 Te nness ee Ru les of Ap pellate

Procedure, from the sentence imposed by the Criminal C ourt of Rutherford

County. On appeal, Appellant Karen McKnight argues that the trial court erred

in denying her request for alternative sentencing. For the reasons set forth, the

judgment of the trial court is affirmed.



                          I. FACTUAL BACKGROUND



      On June 10, 19 95, Ap pellan t plead ed gu ilty to four counts of the sale of

cocaine under .5 grams and two counts of possession of cocaine. The plea

included Appellant’s agreement to serve a six year sentence for each of the first

four counts and an 11 month, 29 day sentence for the other two counts.

According to the plea dings, the parties ag reed tha t the App ellant cou ld seek to

have the sentence suspended; they also left the determination of whether the

sentences should be served consecutively to the trial court’s discretion. The

parties further agree d that A ppella nt wou ld be sentenced as a standa rd offender.



      A sentencing hearing was held on August 14, 1995. After hearing proof

from several witnesses, including Appellant, the trial court imposed concurrent

sentences.    The trial court also partially suspended Appellant’s sentence,

ordering her to serve one year of her sentence in prison and ordering that upon

release she is to be on probation for six years.




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          II. APPELLANT’S STATUS AS A STANDARD OFFENDER



      Appellant contends that the trial court erred in failing to sentence her as an

espe cially mitigated offender. As a part of the plea bargaining process, Appellant

agreed to both the length of her sentences and also to being sentenced as a

standard offende r. Accord ingly, this issu e is withou t merit. See State v. Mahler,

735 S.W .2d 226, 228 (Tenn. 198 7).



                       III. ALTERNATIVE SENTENCING



      Appellant complains that she did not receive full suspension of her

sentence and probation for the entire length of her sentence. Probation is a

matter entrusted to the discretion of the trial judge and Appellant bears the

burden on appeal of showing that the sentence she received is inappropriate.

State v. Bingham, 910 S.W .2d 448, 456 (Tenn. Crim . App. 1995 ).



      Tenn. Code A nn. § 40-35-1 02(5) provides in pertinent part that “convicted

felons committing the most severe offenses, possessing criminal histories

evincing a clear disregard for the laws and morals of society, and evincing failure

of past efforts of rehabilitation shall be given first priority regarding sentencing

involving incarceration. “A defendant who does not fall into the category set forth

in Section 40-35-102(5) and who is an especially mitigated or standard offender

of a Class C, D, or E felony is “presumed to be a favorable candidate fo r

alternative sentencing options in the absence of evidence to the contrary.” Id. §

40-35-102 (6); State v. Ashby, 823 S .W .2d 16 6, 169 (Ten n. 199 1). Th is simp ly

means that the trial judge must presume such a d efend ant to b e a favo rable

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candid ate for a sentence which does not involve in carcera tion. Byrd, 861 S.W.2d

at 379-80. This presumption is however rebuttable and incarceration may be

ordered if the court is presented with evidence which establishes

                                      (A)
      Confinement is necessary to protect society by restraining a
      defend ant who has a lon g history of c riminal co nduct;

                                       (B)
      Confinement is neces sary to avoid depreciating the seriousness of
      the offense o r confinement is particularly suited or provide an
      effective deterrence to others likely to commit similar offenses; or


                                       (C)
      Measures less restrictive than confinement have frequently or
      recently b een ap plied uns uccess fully to the de fendan t.


Tenn . Code Ann. § 4 0-35-10 3(1); Ashby, 823 S.W.2d at 169.



      This Court has recognized for some time that one or more of the fac tors

in Section 40-35-103(1) which, if properly established, rebut the presumption of

entitlement to a non-incarce rative sentence and justify the imposition of

confinem ent, may also serve to justify the denial of full proba tion. See, e.g.,

Bingham, 910 S.W.2d at 456, State v. Chrisman, 885 S.W.2d 834, 840 (Tenn.

Crim. App. 19 95); State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991) (recognizing § 40-35-103(1)(B) as codification of principle th at nature and

circumstances of offense and need for deterrence may justify denial of

probation). A fortiori, a discretionary denial of probation may be justified on the

basis that the evid ence s hows th at defen dant falls into the category of felons

described at Section 40-35-102(5) as being the most deserving of a sentence

involving incarceration. See e.g., Chrisman, 885 S.W.2d at 840. Therefore, in

reviewing a denial of proba tion on appe al, when the rec ord demonstrates that the



                                        -4-
defendant may not claim the presumption of entitlement to a non-inca rcerative

sentence, or that the presumption has been rebutted, this Court will sustain the

trial court’s discretionary de nial of probation if there is any evidenc e to support

that determination.



      Appellant was convicted of four (4) Class C felonie s, and the State

concedes that Appellant is pres ump tively entitled to a sentence which does not

involve incarceration. However, the State argues that the presumption has been

rebutted through the trial cou rt’s findings that som e incarceration w as necess ary

to avoid depreciating the seriousness of the offense.



      This Court has held that in order to overcome the presumption of

entitlement to a non-incarcerative sentence based on the need to avoid

depreciating the seriousness of the offense, “the circumstances of the offense as

committed must be especially violent, horrifying, shocking, reprehensible,

offensive or otherwise of an excessive or exaggerated degree, and the nature of

the offense must outweigh all factors fav oring a se ntence other tha t confinem ent.”

Bingham, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S.W.2d 370, 374-75

(Tenn. C rim. App. 199 1).



      An isolated sale of cocaine may or may not given the circumstances of a

particu lar case c onstitu te suc h repre hens ible be havior that co nfinem ent is




                                         -5-
necessa ry to avoid depreciating the seriou sness o f it.1 However, where the

record shows, as here, that the defendant received a substantial portion of her

income from cocaine sales, that she sold fairly significant amounts of cocaine,

drug dealing activities disrupted her neighborhood, we will not disturb the trial

court’s discretion ary judgm ent that at least som e incarce ration is ne cessar y to

avoid depreciating the seriousness of the offense.2



           Accordingly, the judgment of the trial court is affirmed.



                                             ____________________________________
                                             JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




1
 In State v. Hartley, 818 S.W .2d 370 ( Tenn . Crim. A pp. 1991 ); this Cou rt found th at a trial court
erred in failing to grant probation in a cocaine sale case based on a finding that incarceration was
necessary to avoid depreciating the seriousness of the offense. In that case the defendant was a
youthful offender who played a relatively minor role in the felonious transaction. The defendant
likewise had no financial interest in the sale. In the case sub judice Appellant sold significant
amounts of cocaine for money on a number of occasions. Appellant also had a prior criminal
record for theft.

2
    Appellant testified her drug dealing often prompted neighbors to call police to their neighborhood.

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