          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE              FILED
                          DECEMB ER SESSION, 1997          February 4, 1998

                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TENNESSEE,                 )     C.C.A. NO. 03C01-9706-CC-00204
                                    )
            Appellee,               )
                                    )     BLOUNT COUNTY
                                    )
V.                                  )
                                    )     HON . D. KEL LY TH OM AS, JR.,
JUD Y R. B AILEY,                   )     JUDGE
                                    )
            Appe llant.             )     (FRAUD )




FOR THE APPELLANT:                  FOR THE APPELLEE:

LAURA RULE HENDRICKS                JOHN KNOX WALKUP
Eldridge, Irvine & Hendricks        Attorney General & Reporter
606 West Main Street, Ste. 350
P.O. Box 84                         MICH AEL J. F AHEY , II
Knoxville, TN 37901-0084            Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

RAYMOND MACK GARNER                 MICHAEL L. FLYNN
District Public Defender            District Attorney General

SHAW N T. GR AHAM                   KIRK ANDREWS
Assistant Public Defender           Assistant District Attorney General
415 High Street                     363 Court Street
Maryville, TN 37804                 Maryville, TN 37804




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
             The Defen dant, Jud y R. Bailey, pled guilty to the offense of obtaining

a controlled substance by fraud in violation of Tennessee Code Annotated section

53-11-402. Pursua nt to the negotiated plea agreement, she received a Range I

three (3) year sentence and $500.00 fine, with the manner of service of senten ce to

be determ ined by th e trial court follo wing a h earing. T he Circu it Court of B lount

Coun ty ordered a sentence of split confinement consisting of ten (10) months in the

Blount Coun ty Jail followed by two (2) ye ars and two (2) m onths o f intens ive

probation. The sentence was ordered to be served concurrently with a sentence for

convictions in Knox Co unty. In her sole issue on appeal, Defendant argues that the

trial court erred by not ord ering a senten ce alternative that doe s not involve

incarcer ation. W e affirm the judgm ent of the tria l court.



             Defendant was thirty-three (33) years old at the time of the sentencing

hearing. The offense for which Defendant was convicted occurred on April 18, 1996.

The record reflects that she obtained a controlled substance from a dentist by fraud

and misrep resenta tion by pro viding the d entist with a false name, date of birth, social

security numbe r, address and employment information. The Defendant testified at

the sentencing hearing that she became addicted to pain medication aft er she

received back inju ries in an a utomo bile wreck in 1992.



              Defe ndan t’s prior record include d convictions o n Mar ch 5, 1 996 in

Blount County Circuit Court for one count of burglary of a building other than a

habitation, one count of theft less than $500.00, and one count of attempt to possess




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controlled substances. Apparen tly, the sentences were run concurrently with each

other an d she w as place d on pro bation.



             On August 23, 1996, Defendant was convicted in Knox County Criminal

Court for the offen ses of the ft of property over $1,000.00, and three counts of

obtaining controlled substances by forged prescriptions. She had originally been

placed on pre-trial diversion for these offenses, but it was terminated upon her

commission of other crimes . She was p laced in the Co mmu nity Alternati ves to

Prison Program (CAPP) for the Knox County Convictions. However, due to her

failure of drug screen tests which were positive for morphine and other technical

violations, Defendant was incarcerated in the K noxville Detention Center. There she

was placed in an intensive rehabilitation program with the understanding that she

could be returned to the CAPP program upon successful completion of the

rehabilitation program during the incarceration.        Defendant entered into her

negotiated plea agreement in the case sub judice on No vemb er 26, 19 96.



             The record shows that when Defendant was arrested for the offense

which is the subject of this app eal, there were approximately forty (40) pills in her

purse, including four (4) different types of controlled substances. She claimed that

she had prescriptions for each of these, but never provided them to the arresting

officer despite his request. She had six (6) unexcused absences from required

meetings while participating in the CAPP program in Knox County. On December

2, 1996, sh e tested p ositive for m orphine following a drug scr een. She claimed that

she had rec ently taken the last pill from a prescription given to her in September

1996 by a dentist. She also failed to pay on her court costs as scheduled.




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              On December 13, 1996, Defendant was requested to submit to a drug

screen from h er prob ation o fficer on th e prior Blount County convictions. She

provided a sam ple wh ich wa s coo ler than body tempe rature, an d due to its

coloration, the probation officer felt that the cup contained to ilet water. A second

sam ple was imme diately requ ested. The first sample was negative, and the second

samp le was po sitive for mo rphine.



              Defendant admitted during her testimony at the sentencing hearing that

she had obtained the first sample from toilet water. She also claimed on December

13 that she had taken pain medication a day or two before from the same

September 1996 prescription which she had earlier claimed was depleted around

December 2, 1996. Defendant also provided a drug screen which was positive for

morphine on January 7, 1997. Defendant admitted during her tes timon y that the pills

which led to the positive drug screens on December 2 and December 13 did not

come from the prescriptio n provide d to her in S eptem ber. Defendant testified that

she obtained the prescription on September 18, 1996 fo r fifteen (15) L orcet pills with

one refill. She took all of the first fifteen (15) on September 18 and obtained a refill

the next day.    S he had not taken any pain medication from May 3 through

September 18, 1996. She was not suffering from withdrawal symptoms when she

next obtained the p rescription drug s, and co uld not rea lly provide an answe r as to

why she had suddenly decided to again obtain the controlled substance. Defendant

acknowledged during her testimony that she h ad adm itted herse lf into rehabilitation

at the time of her convic tions in Bloun t Cou nty in March 1996 simply to stay out of

jail and that she had continued taking the pain medication during her outpatient

treatme nt.




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             In determining the appropriate manner of service of the sentence, the

trial court de clined to o rder a se ntence which invo lved relea se into the comm unity

during the entire sentence on the basis that she had recen tly “chea ted” an d not to ld

the truth while serving a sentence on release status, had continued to use controlled

substance s, and has a lengthy criminal history.



             When an accused challenges the length, range, or the manner of

service of a sentence, this court has a duty to conduct a de novo review of the

sentence with a pres umptio n that the d etermin ations m ade by th e trial court a re

correct. T enn. C ode An n. § 40-35-4 01(d). This presumption is "conditioned upon

the affirmative showing in the record that the trial court considered the sentencing

principles and all rele vant facts a nd circum stance s." State v. Ashby, 823 S.W .2d

166, 169 (T enn. 1991 ).



             In conducting a de novo review of a sen tence , this court must co nsider:

(a) the evidence, if any, re ceived at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to sentencing

alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)

any statutory mitigating or enhancement factors; (f) any statement that the defendant

made on his own behalf; and (g) the potential or lack of potential for rehabilitation or

treatme nt. Tenn . Code Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735

S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



             If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and that

                                           -5-
the trial court's findings of fact are adequately supported by the record, then we may

not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v.

Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



             At the ou tset, we note th at we h ave de termin ed the trial court’s

judgment should be reviewed de novo with a pres umptio n of corre ctness.              A

defendant convicted of a Class C, D, or E felony who is an especially mitigated or

standard offende r is presum ed to be a favorab le candid ate for alternative sentencing

options if the defendant does not fall within the parameters of Tennessee Code

Anno tated sec tion 40-3 5-102(5 ). See Tenn . Code Ann. § 4 0-35-10 2(6).



             Allowing the Defendant the benefit of the presu mptio n, we in itially note

that the trial court sentenced her to an a lternative se ntence of split confin emen t.

See Tenn. Code Ann. § 40-35-104(c)(3). There is no presumption that Defendant

is entitled to a specific type of alternative sentence. Statutory law provides that a

sentence involving confinement should be based in part upon the consideration that

measures “less restrictive than con finement have frequently or recently been applied

unsu cces sfully to the defenda nt.” Tenn . Code Ann. § 40-35-103(1)(C). Therefore,

the se ntenc e of sp lit confin eme nt in this case is in accord with the purposes of the

Criminal Sentencing Reform Act of 1989.



             We affirm the ju dgme nt of the trial co urt.




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                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
DAVID G. HAYES, Judge




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