        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                      NOVEMB ER SESSION, 1998       January 15, 1999

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9803-CC-00088
                           )
      Appellee,            )
                           )
                           )    BLOUNT COUNTY
VS.                        )
                           )    HON. D. KELLY THOMAS, JR.
RUSSELL WEMBLEY,           )    JUDGE
                           )
      Appe llant.          )    (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF BLOUNT COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

GERALD L. GULLEY, JR.           JOHN KNOX WALKUP
P.O. Box 1708                   Attorney General and Reporter
Knoxville, TN 37901-1708
                                CLINTON J. MORGAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                MIKE FLYNN
                                District Attorney General

                                PHILIP MORTON
                                Assistant District Attorney General
                                363 Court Street
                                Maryville, TN 37804



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                OPINION

       The Defenda nt, Russell W embley, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appellate P roced ure. H e was convic ted, up on his

plea of guilty, of one count of delivery of cocaine, a Class B felony. The agreed

sentence was eight years as a Range I standard offender. The manner of

service of the sentence was left to the discretion of the trial judge.        After

conducting a sentencing hearing, the trial judge ordered tha t the Defenda nt serve

one year in the county jail, with the ba lance to b e served in the com munity

corrections program. The Defendant appeals from the trial judge’s order that one

year of his sentence be served in confinement. We affirm the judgment of the

trial court.



       When an accused challenges the length, ran ge, or m anner o f service of a

sentence, this Court has a duty to conduct a de novo review of th e sente nce with

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

Code Ann. § 4 0-35-40 1(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 circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



       In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and sentencing hearing; (b) the

presentence report; (c) the principles of s entenc ing and argum ents as to

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



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involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement

that the defendant made regarding sentencing; and (g) the potential or lack of

potential for reha bilitation or trea tment. State v. S mith, 735 S.W.2d 859, 863

(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



       This charge resulted from the Defendant’s sale of cocaine to a confidential

informant for the s um o f eighty d ollars. A lthoug h a tran script o f the gu ilty plea

proceeding is not included in the record, the drug transaction was recorded, and

the State introduced a transcript of the conversation between the Defendant and

the confidential informant at the sentencing hearing.



       The presen tence re port reflects that at the time of sentencing, the

Defendant was twenty-six years old, single, and a high school graduate. He

reported that he had completed some college work and had attended a business

scho ol. He lives with his girlfriend, and they have two daughters. He reported

that he has four children with two previous girlfriends and that he regularly

contributes to their support. The presentence report further reflected that the

Defendant worked a construction job during the day and also worked an evening

shift at a Ha rdee’s re stauran t.



       The Defe ndan t’s record includes convictions for misdemeanor assault and

vandalism in Bloun t Coun ty, Tenn essee in 1992, fo r which th e Defe ndant

received suspended sentences and probation. In 1995 the Defendant received

three felony convictions in Ohio. According to the judgment of conviction, these

offenses were carrying a loaded, concealed weapon; aggravated trafficking

(appare ntly in drugs); and trafficking in food stamps.           It appears that the

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Defendant received three co ncurren t eighteen -month sente nces for thes e Oh io

felonies.    The pr esente nce rep ort further reflects that the Defendant

acknowledged he has an alcohol problem. He also acknowledged that he had

used marijuana regularly in the past, although he reported that he had not used

marijuana for about two months. He denied the use of any other drugs. A drug

screen performed as a part of the presentence investigation was negative. The

Defendant declined to testify at his sentencing hearing, and the only evidence

submitted was a letter from a poten tial em ployer stating that the Defe ndan t could

become employed with a janitorial and carpet-cleaning service five nights a week.



       On a ppea l, the Defendant argues that the trial judge erred o r abus ed his

discretion by requiring him to serve one year of his sentence in the coun ty jail.

He argues that he s hould have re ceived proba tion or comm unity corrections

without an y confinem ent in the c ounty jail.



       W hen determining whether to grant probation, the trial judge must consider

the nature and circumstances of the offense; the defendant’s criminal record,

background, social history, and present condition, including physical and mental

condition; the deter rent effect on other criminal activity; and the likelihood that

probation is in the bes t interests o f both the p ublic and the defen dant. See Stiller

v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The burden is on the defend ant to

show that the sentenc e is imprope r and that proba tion is appropriate. State v.

Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).



       The State suggests that the offense of selling drugs is “deterrable per se,

and therefo re dete rrence is a facto r that m ay be c onsid ered on the question of

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probatio n.” To ad vance this argument, the State relies upon State v. Dykes, 803

S.W.2d 250, 260 (Tenn. Crim. App. 1990), and other cases which refer to drug

crimes as being “deterrable per se.” While we agree that deterren ce is always

a factor that can be considered on the question of probation, we do not read

Dykes or any other case as holding that deterrence alone is sufficient to sup port

a denial of probation for any crime involving the sale or delivery of cocaine or

other drugs. Probation must be automatically considered by the trial court as a

sentencing alterna tive for e ligible defendants. Tenn. Code Ann. § 40-3 5-303(b).

“A defendant shall be eligible for probation under the provis ions of this chapter

if the sentence actually imposed upon such defendant is eight (8) years or less

. . . .” Id. § 40-35-303(a). It cannot be said that deterrence “per se” will always

support denial of probation in sen tencing for a crim e involving the sale or d elivery

of drugs . State v. Ashby, 823 S.W .2d 166, 169 -70 (Tenn . 1991).



      Because the Defendant was convicted of a Class B felony, there is no

presumption that he is a suitable candidate for alternative sentencing options as

afforded those convicted of a C lass C, D , or E felon y. See Tenn . Code Ann. §

40-35-102(6).    Furthermore, as we have stated, the burden of establishing

suitability for probation rests with the Defendant. Tenn. Code Ann. § 40-35-

303(b). Because the Defendant chose not to testify at his sentencing hearing

and presented no evidence other than a letter from a prospective employer, the

trial judge was left primarily to consider information contained in the presentence

report.   Although the Defendant appeared to have a somewhat favorable

employm ent record, h is history of crim inal cond uct is not ins ignificant.      We

believe the trial judge properly acted within his discretionary authority by




                                          -5-
determining that the Defendant was not entitled to full probation and by ordering

that a por tion of his se ntence be serve d in confin emen t.



      The judgment of the trial court is accordingly affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JAMES CURWOOD WITT, JR., JUDGE


___________________________________
L.T. LAFFERTY, SENIOR JUDGE




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