            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                            MARCH 1998 SESSION
                                                         FILED
STATE OF TENNESSEE,           *      C.C.A. # 02C01-9706-CC-00218
                                                    April 22, 1998
             Appellee,        *      CROCKETT COUNTY

VS.                           *      Hon. Dick Jerman, Jr., Judge
                                                         Cecil Crowson, Jr.
DANNY WALKER,                 *      (Sale of Less than Point Five
                                     Gram of Cocaine) Appellate C ourt Clerk
             Appellant.       *




For Appellant:                       For Appellee:

Joyce Diane Stoots                   John Knox Walkup
Assistant Public Defender            Attorney General and Reporter
107 South Court Square
Trenton, TN 38382                    Janis L. Turner
                                     Assistant Attorney General
Tom Crider                           Criminal Justice Division
Assistant Public Defender            Cordell Hull Building, Second Floor
107 South Court Square               425 Fifth Avenue North
Trenton, TN 38382                    Nashville, TN 37243-0493

                                     Clayburn Peeples
                                     District Attorney General
                                     110 South College, Suite 200
                                     Trenton, TN 38382

                                     Larry Hardister
                                     Assistant District Attorney General
                                     110 College Street, Suite 200
                                     Trenton, TN 38382



OPINION FILED:__________________________



AFFIRMED; SENTENCE MODIFIED



GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Danny Walker, entered a guilty plea to a sale of less

than .5 gram of cocaine, a Class C felony. Tenn. Code Ann. § 39-17-417. The trial

court imposed a Range I, three-year sentence to be served in Community

Corrections and ordered a fine of $1,000.00. Thereafter, the trial court revoked the

alternative sentence and ordered the defendant to serve a six-year sentence. On

direct appeal, this court reversed the order and remanded the cause for another

sentencing hearing because the trial court had failed to conduct a hearing and make

specific findings of fact in accordance with the Criminal Sentencing Reform Act of

1989. State v. Danny Walker, No. 02C01-9508-CC-00025 (Tenn. Crim. App., at

Jackson, Sept. 30, 1996). After remand on the first appeal, the trial court reimposed

a six-year sentence, the maximum possible.



              In this appeal of right, the defendant complains that the trial court

imposed an excessive sentence. We modify the sentence to four years.



              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). See

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



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


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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).



              In calculating the sentence on a felony conviction, the presumptive

sentence is the minimum within the range if there are no enhancement or mitigating

factors. Tenn. Code Ann. § 40-35-210(c). If there are enhancement factors but no

mitigating factors, the trial court may set the sentence above the minimum. Tenn.

Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating

factors requires an assignment of relative weight for the enhancement factors as a

means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence

may then be reduced within the range by any weight assigned to the mitigating

factors present. Id.



              A failure to comply with the terms of a Community Corrections

sentence may result in a revocation. Tenn. Code Ann. § 40-36-106(e)(3)(B). In

such an event, the trial court must resentence the defendant and may order "any

period of time up to the maximum sentence...." Tenn. Code Ann. § 40-36-106(e)(4);

State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996). On remand from the

first appeal, neither the state nor the defense presented any evidence. The trial

court considered the contents of the presentence report, was informed that the

defendant was on parole, and ordered a six-year sentence.



              The transcript of the revocation hearing indicates that the petition to


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revoke was filed based upon the defendant's positive drug screens, his admitted use

of cocaine only a little over a month after his guilty plea, and his refusal to undergo

in-patient treatment. The defendant, who was working 11:00 A.M. to 5:00 P.M.

seven days per week had not performed community service as required, "because I

worked on Sundays," even though his probation officer had suggested two hours of

community service in the mornings before his work began. At the conclusion of the

hearing, the trial court characterized the defendant's attitude as "sorry." This record

confirms that there was a factual basis for that conclusion. The trial court also

determined that the defendant had violated the terms of his agreement.



              After hearing brief comments from counsel at the resentencing

hearing, the trial court ruled as follows:

              I'm going to consider the evidence, the Pre-Sentence
              Report that was filed, the sentencing principles, all
              arguments of counsel, the nature and character of the
              offense, any mitigating and enhancement factors, any
              statements made by the defendant, and any potential for
              rehabilitation or treatment and accordingly, after giving
              this matter consideration for all those factors, I find he
              has violated the terms of Corrections Management and I
              resentence him to serve six years in the state
              penitentiary as a Range I standard offender.... [I] am
              going to order him to the custody of the sheriff. I am
              going to let him go back through the parole process. He
              can report to the sheriff. I don't see how they can parole
              him on a sentence that he didn't have. He'll have to go
              back through the process. You can appeal it again.



              The presumption of correctness on any sentence is, in the words of

our supreme court, "conditioned upon the affirmative showing in the record that the

trial court considered the sentencing principles and all relevant facts and

circumstances." Ashby, 823 S.W.2d at 169. While the trial court made reference to

having done so, the specific findings were not made on the record and do not

appear in the judgment form. Because the findings of facts and conclusions of law


                                             4
contemplated by both the legislature and the rulings of our supreme court have not

been made, our review must be de novo.



             The state's brief is of little assistance. There is no attempt to address

the purposes of the 1989 Act. Tenn. Code Ann. § 40-35-102. No effort was made

to review the applicable sentencing considerations. Tenn. Code Ann. § 40-35-103.

No specific argument was made as to the existence of any of the enumerated

enhancement factors. Tenn. Code Ann. §§ 40-35-114(1)-(21).



             The presentence report does indicate that the defendant, thirty-six

years of age, was convicted of public intoxication in 1991 and simple assault in

1992. While there is no indication the defendant was incarcerated for either, at least

one enhancement factor is present because the defendant did have a previous

history of criminal convictions. Tenn. Code Ann. § 40-35-114(1).



             The report also indicates that the defendant completed the twelfth

grade, had full-time gainful employment at the time of the revocation, and has two

children, both of whom were born out of wedlock. The defendant pays child support

weekly and has worked as a laborer, a forklift operator, and a machine operator

during his adult life. The defendant conceded that he had used cocaine from 1990

through 1994 but otherwise had no health problems.



             A primary purpose of the 1989 Act is to ensure that every sentence is

justly deserved in relation to the seriousness of the offense. Fair and consistent

treatment is paramount. Confinement is appropriate, as in this case, when

measures less restrictive have been unsuccessful. The potential for rehabilitation or

treatment is an important consideration. All sentences should be "the least severe


                                          5
measure necessary to achieve the purposes of a sentence." Tenn. Code Ann. § 40-

35-103.



              That the defendant used cocaine after his conviction and failed drug

screens justifies not only the revocation of the terms of release but also a sentence

of confinement. When taken into consideration with the other enhancement factor

present, the defendant merits a greater sentence than the minimum. Of course it is

far better for the trial judge, who sees and hears the witnesses firsthand, to make an

assessment as to the appropriate sentence. But the time must be taken to place

the underlying rationale for the sentence in the record so that there is the

opportunity for an informed appellate review. Had those reasons been specifically

set out in this case, it may be that this court would have agreed with the six-year

maximum. The limited record before us, in our view, would warrant a lesser

sentence. In our view, a term of four years would meet the purposes of the Act.



              Accordingly, the judgment is so modified.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
Joe B. Jones, Presiding Judge



_____________________________
Jerry L. Smith, Judge




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