            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                          NOVEMBER 1997 SESSION              FILED
STATE OF TENNESSEE,           *      C.C.A. # 02C01-9611-CR-00432

             Appellee,        *      SHELBY COUNTY
                                                              January 13, 1998
VS.                           *      Hon. Carolyn Wade Blackett, Judge

GREG SIMMONS,                 *      (Sentencing)
                                                             Cecil Crowson, Jr.
             Appellant.       *
                                                             Appellate C ourt Clerk




For Appellant:                       For Appellee:

William D. Massey                    John Knox Walkup
Attorney                             Attorney General and Reporter
3074 East Street
Memphis, TN 38128                    Georgia Blythe Felner
                                     Counsel for the State
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     James Challen
                                     Assistant District Attorney General
                                     Shelby County District Attorney
                                            General's Office
                                     201 Poplar Avenue, Third Floor
                                     Memphis, TN 38103




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

               The defendant, Greg Simmons, pled guilty to two counts of driving on

a revoked license, reckless driving, and simple possession of cocaine. For these

four Class A misdemeanors, the trial court imposed concurrent sentences of ninety

days and fines of $500.00 on each count. The single issue presented for our review

is whether the trial court erred by denying probation or an alternative sentence

under the Community Corrections Act. We find no error and affirm the judgment of

the trial court.



               The possession of cocaine conviction, reduced by agreement of the

state from possession with the intent to sell or deliver, resulted from an incident

which took place on or about March 10, 1995. One of the convictions for driving on

a revoked license was based upon an incident occurring on or about June 13, 1995.

The second conviction for driving on a revoked license and the reckless driving

offense resulted from an incident occurring September 11, 1995.



               The defendant, age twenty-three at the time of the sentence, is single

but resides with Barbara Love, with whom he has one child, Gregory Simmons, Jr.,

now two years of age. Expelled from school in the tenth grade for smoking

marijuana, the defendant obtained his GED from the Shelby Training Center in

1990. At the time of his arrest, he managed a beauty salon and worked in a fish

market. He estimated that he worked a total of sixty hours each week in providing

support for his family. While acknowledging that he had smoked marijuana on a

daily basis, the defendant claimed that his last use of the drug was some seven

months prior to his sentencing hearing.



               The presentence report indicates a prior criminal history which began


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at the time he was seventeen years of age and includes three prior instances of

driving on a revoked license, speeding, possession of marijuana, and the unlawful

possession of a weapon. He has served jail terms for two of the prior instances of

driving on a revoked license, criminal trespass, driving under the influence, a prior

possession of a controlled substance conviction, and a felony conviction for

possession of a controlled substance with intent to sell or deliver. During the

sentencing, the defendant conceded that he was not entitled to probation but sought

placement in a Community Corrections Program based in great part on his desire to

receive treatment for substance abuse.



              The trial court noted that the defendant had been unsuccessful in

completing a prior probationary term. While complimenting the defendant for

undergoing a voluntary drug treatment program, the trial court expressed concern

about the defendant's having sold drugs. The decision to deny an alternative

sentence was based primarily upon the defendant's prior criminal history and his

failure to meet the conditions of probation on his prior three-year felony sentence.

The trial court left open the question of whether the defendant would be placed in a

Community Corrections Program upon the completion of a portion of his sentence.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.


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              Our review requires an analysis of (1) the evidence, if any, received at

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

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's application for

probation are the circumstances of the offense, the defendant's criminal record,

social history and present condition, and the deterrent effect upon and best interest

of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-

102(6). With certain statutory exceptions, none of which apply here, probation must

be automatically considered by the trial court if the sentence imposed is eight years

or less. Tenn. Code Ann. § 40-35-303(a), (b).



              In misdemeanor sentencing, a separate sentencing hearing is not

mandatory but the court is required to provide the defendant with a reasonable

opportunity to be heard as to the length and manner of the sentence. Tenn. Code

Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance

with the principles, purposes, and goals of the Criminal Sentencing Reform Act of

1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902 S.W.2d

391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an


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authorized determinant sentence with a percentage of that sentence designated for

eligibility for rehabilitative programs. Generally, a percentage of not greater than

75% of the sentence should be fixed for a misdemeanor offender; however, a DUI

offender may be required to serve the full 100% of his sentence. Palmer, 902

S.W.2d at 393-94. In determining the percentage of the sentence, the court must

consider enhancement and mitigating factors as well as the legislative purposes and

principles related to sentencing. Id.



              Upon service of that percentage, the administrative agency governing

the rehabilitative programs determines which among the lawful programs available is

appropriate. The trial court retains the authority to place the defendant on probation

either immediately or after a period of periodic or continuous confinement. Tenn.

Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider

public or private agencies for probation supervision prior to directing supervision by

the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing

statute is designed to provide the trial court with continuing jurisdiction in

misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the

felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,

885 S.W.2d 829 (Tenn. Crim. App. 1994).



              The purpose of the Community Corrections Act of 1985 was 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. The Community Corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets

the minimum requirements of the Community Corrections Act of 1985, however,


                                            5
does not mean that he is entitled to be sentenced under the Act as a matter of law

or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following

offenders are eligible for Community Corrections:

              (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 2 [repealed], parts 1-3 and
              5-7 or 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; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



              The defendant is eligible for consideration of both probation or an

alternative sentence under the Tennessee Community Corrections Act. In his favor,

he has demonstrated a good work ethic and has provided support for his girlfriend

and his son. He has expressed regret for his actions and has voluntarily sought

treatment for substance abuse, completing a program on August 31, 1995.



              On the other hand, the defendant conceded that he had sold cocaine

while on probation for his prior felony offense. He explained that "my family needed

a place to stay at the time ..., business was slow ..., [and] and I wasn't making too

much money." Traditionally, the trial courts have been permitted to look to the true

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circumstances of the crime regardless of whether the original indictment, a felony in

this case, had been reduced to misdemeanor simple possession. Here, there were

four offenses committed in three separate incidents occurring over a period of six

months. After being arrested for driving on a revoked license, the defendant

continued to drive until caught a second time. During this time, he was on probation

for a felony conviction.



              The primary purpose of the Criminal Sentencing Reform Act of 1989 is

to impose "a sentence justly deserved in relation to the seriousness of the offense."

Tenn. Code Ann. § 40-35-102. Punishment is appropriate to restrain "defendants

with a lengthy history of criminal conduct." Tenn. Code Ann. § 40-35-102(3)(B).

While it is entirely appropriate to consider the least necessary sentence and to

consider alternative sentences, confinement is warranted when less restrictive

measures have been unsuccessfully applied to the defendant. Tenn. Code Ann. §

40-35-103(1)(C) and (6).



              This record demonstrates that the trial considered the sentencing

principles and all relevant facts and circumstances. Ashby, 823 S.W.2d at 169.

Whether the issue is probation or placement in Community Corrections, the trial

court must be afforded some discretion in determining the appropriate sentence.

The facts in each case control the ultimate disposition. Taylor, 744 S.W.2d at 922.

That a defendant qualifies for probation consideration or meets the minimum criteria

of the Community Corrections Act does not mean he is entitled to an alternative

sentence. Here, the presumption of correctness prevails. While demonstrating that

he is amenable to rehabilitation and that he has other favorable qualities, the

defendant has earned the ninety-day sentence. His prior criminal history, his failure

to meet the terms of his probation, the circumstances of the crime, and our own


                                          7
desire to insure that the trial courts retain a considerable measure of flexibility in the

disposition of misdemeanor cases, warrant the denial of relief.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Judge

CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Joe G. Riley, Judge




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