         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs February 12, 2003

           STATE OF TENNESSEE v. WESLEY D. WHITTINGTON

                 Direct Appeal from the Circuit Court for Williamson County
                        No. II-202-066-A    Timothy L. Easter, Judge



                      No. M2002-01807-CCA-R3-CD - Filed May 16, 2003


Defendant, Wesley D. Whittington, entered guilty pleas to the charges of possession of marijuana
with the intent to sell or deliver, a Class E felony, and possession of drug paraphernalia, a Class A
misdemeanor. Defendant and the State agreed to sentences of one year for the felony conviction and
eleven months and twenty-nine days for the misdemeanor conviction, to be served concurrently. The
negotiated plea agreement further stated that the trial court would determine the manner in which
Defendant would serve his sentences. Following a sentencing hearing, the trial court ordered
Defendant’s sentences to be served in confinement. Defendant appeals the trial court’s refusal to
order alternative sentencing. After a careful review of the record, we affirm the judgments of the
trial court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON, J., joined.

C. Diane Crosier, Franklin, Tennessee, for the appellant, Wesley D. Whittington.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         At the sentencing hearing, Defendant testified that he was living with his girlfriend, her four
children, and her father. He was employed as a roofer. He was the only person in his household who
earned an income. He also testified that he had not used marijuana since his arrest in this case in
April of 2001. He testified that the marijuana in his possession at the time of the offense belonged
to a friend, and Defendant was holding it because the friend thought that he was being watched by
the police. Defendant was arrested for simple possession of marijuana in 1999. He was convicted
and received a sentence of probation, which he did not successfully complete. He violated his term
of probation by testing positive for marijuana use. He was ordered to serve five days in confinement.
One month after completing his term of probation, he was arrested on the charges in this case.
Defendant testified that he could pass a drug test on the date of sentencing and that he would never
use marijuana again.

         The presentence report reveals that Defendant has prior convictions for simple possession
of marijuana, driving under the influence, and driving while his license was suspended. In 1996,
Defendant was arrested for driving under the influence, but the charge was reduced to reckless
driving. Defendant testified at the sentencing hearing that he was under the influence of marijuana
at the time of his DUI arrest. Another charge for simple possession of marijuana and an assault
charge were retired.

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, our review is de novo with no presumption of
correctness. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing
party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) (1997) Sentencing
Commission Comments.

        A standard offender convicted of a Class C, D or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary. Tenn. Code Ann. §
40-35-102(6) (1997). This presumption is not available, however, to a defendant who commits the
most severe offenses, has a criminal history showing clear disregard for the laws and morals of
society, and has failed past efforts at rehabilitation. Tenn. Code Ann. § 40-35-102(5) (1997); State
v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001).

        In determining whether incarceration is appropriate, a trial court may consider the need to
protect society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1)
(1997); see also Ashby, 823 S.W.2d at 169. A court may also consider the mitigating and enhancing
factors set forth in Tenn. Code Ann. §§ 40-35-113 (1997) and -114 (Supp. 2002) as they are relevant
to the § 40-35-103 considerations. Tenn. Code Ann. § 40-35-210(b)(5) (Supp. 2002); State v.
Boston, 938 S.W.2d 435, 438 (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. Tenn. Code Ann. § 40-35-103(5) (1997); Boston, 938 S.W.2d at
438. Finally, sentencing issues must be decided in light of the unique facts and circumstances of
each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).




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        The trial court afforded Defendant the presumption that he was a favorable candidate for
alternative sentencing. In consideration of whether confinement was an appropriate sentence, the
trial court found that measures less restrictive than confinement had recently been applied
unsuccessfully to Defendant. Although the trial court found that confinement was not necessary to
protect society, Defendant had an extensive history of criminal conduct. The trial court emphasized
Defendant’s testimony that he could not remember whether judicial diversion was granted in a prior
case.

        Defendant argues that the State presented no proof that Defendant had not been rehabilitated.
The presentence report reveals that Defendant began using marijuana at the age of seventeen, and
continued to use it until the age of twenty-seven, at the time of arrest. Defendant used marijuana two
or three times daily. Defendant also drinks “maybe a 12-pack” on weekends. Defendant never
received drug or alcohol treatment. Defendant presented no proof that Defendant was rehabilitated
other than Defendant’s own testimony that he was no longer using marijuana.

                                          CONCLUSION

       Having concluded that the trial court properly considered the sentencing principles and all
relevant facts and circumstances, we affirm the judgments of the trial court.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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