            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1998

                                                                FILED
STATE OF TENNESSEE,     )                                   May 22, 1998
                        )      No. 02C01-9708-CC-00298
      Appellee          )                                 Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
                        )      HENRY COUNTY
vs.                     )
                        )      Hon. JULIAN P. GUINN, Judge
LUTHER EARL McCUTCHEON, )
                        )      (Sale of cocaine over one-
Appellant          )    half gram)


For the Appellant:                  For the Appellee:

Donald E. Parish                    John Knox Walkup
Ivey, Parish & Johns                Attorney General and Reporter
12880 East Paris Street
P. O. Box 229                       Peter M. Coughlan
Huntingdon, TN 38344                Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493


                                    Robert "Gus" Radford
                                    District Attorney General
                                    P. O. Box 686
                                    Huntingdon, TN 38344




OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                              OPINION



          The appellant, Luther Earl McCutcheon, was indicted by the Henry County

Grand Jury in a four count indictment, charging him with two counts of a class B felony

sale of cocaine and two alternative counts of a class B felony delivery of cocaine. The

two offenses for sale of cocaine and the accompanying alternative counts for delivery

were severed and, following a jury trial, the appellant was found not guilty of sale and

delivery of cocaine. The appellant subsequently pled guilty to the remaining count of

sale of cocaine over one-half gram and, pursuant to a plea agreement, received an

eight year sentence with the manner of service of the sentence to be determined by the

trial court. At the sentencing hearing, the trial court imposed a split confinement

sentence, requiring the appellant to serve continuous confinement of one year in the

county jail, followed by supervised probation for the remainder of the sentence. The

appellant appeals this sentencing determination contending that the trial court erred in

denying him a non- incarcerative community corrections sentence. After review, we

affirm.

          A sentencing hearing was scheduled for April 9, 1997. At the hearing, no

testimony was presented by the appellant or by the State. The appellant relied upon

a sentencing memorandum previously filed and the pre-sentence report. Additionally,

we note that the transcript of the guilty plea hearing was not included in the record,

therefore, we are precluded from a review of the nature and circumstances of the

offense.1 In denying a non-incarcerative sentence, the trial court noted:

          [T]his Court finds as its reasons for not granting a total suspended
          sentence or a complete commission to Community Corrections for the
          entire period the following reasons. The circumstances of this offense.
          This man knowingly and intentionally placed himself directly in the middle
          of an ongoing dope operation and voluntarily participated. Total
          suspension would not be in the best interest of justice, it would not be in
          the best interest of this defendant, and it certainly wouldn’t be in the best
          interest of the public.

          I have considered the deterrent effect, perhaps more so in this case than
          other cases of a like nature, because of the peculiar circumstances of the
          case. Lastly, I am of the opinion that confinement is necessary to avoid
          deprecating the seriousness of the offense.


          1
          If the appellate record is inadequate, the reviewing court must presume that the trial
judge ru led corre ctly. See State v. Ivy, 868 S.W .2d 724, 728 (Tenn.Crim .App. 1993).

                                                  2
       Review by this court, of the length, range, or manner of service of a sentence is

de novo with a presumption that the determination made by the sentencing court is

correct. Tenn. Code Ann. § 40-35-401(d)(1990). This presumption only applies,

however, if the record demonstrates that the sentencing court properly considered

relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In

the case before us, the record reflects that the sentencing court considered relevant

sentencing principles; thus, the presumption applies. The burden is on the appellant

to show that the sentence imposed was improper. Sentencing Commission Comments,

Tenn. Code Ann. § 40-35-401(d).

       The appellant argues on appeal that the facts of this case are analogous to

those in State v. Ashby, 823 S.W .2d at 166.         However, such a comparison is

misplaced. The defendant in Ashby was convicted of a class C felony and, therefore,

was entitled to the presumption of an alternative sentence. The appellant in this case

was convicted of a class B felony and, thus, was not entitled to the presumption of an

alternative sentence.    Moreover, in Ashby the trial court imposed a penitentiary

sentence. In this case, the trial court granted an alternative sentence.

       We conclude that the appellant has failed in his burden of establishing that the

sentence imposed by the trial court is incorrect. Finding no error of law requiring

reversal, we affirm the judgment of the trial court in accordance with Rule 20, Tenn. Ct.

Crim. App.




                                          ____________________________________
                                          DAVID G. HAYES, Judge


CONCUR:



________________________________
WILLIAM M. BARKER, Judge



________________________________
JOE G. RILEY, Judge




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