           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE              FILED
                         JULY SESSION, 1996
                                                        April 3, 1997

                                                  Cecil W. Crowson
STATE OF TENNESSEE,     )       C.C.A. NO. 01C01-9512-CC-00436
                                                Appellate Court Clerk
                        )
     Appellee,          )
                        )
                        )       RUTHERFORD COUNTY
VS.                     )
                        )       HON. J.S. DANIEL
ELBERT MURFREE MARABLE, )       JUDGE
SR.,                    )
     Appellant.         )       (Direct Appeal-Sentencing)



FOR THE APPELLANT:              FOR THE APPELLEE:

GUY R. DOTSON                   CHARLES W. BURSON
102 South Maple Street          Attorney General and Reporter
Murfreesboro, TN 37130
                                JANIS L. TURNER
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243

                                BILL WHITESELL
                                District Attorney General
                                Third Floor Judicial Building
                                Murfreesboro, TN 37130



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION



       Appellant Elbert Murfree Marable, Sr. entered a plea of guilty in the

Rutherford County Circuit Court to possession of a Schedule II controlled

substance with intent to sell or deliver. As a R ange I stand ard offender,

Appellant received a sentence of six years in the county workhouse. The trial

judge ordered that Appellant serve one year of incarceration before re-

applying for probation. In this direct appeal, Appellant complains that he

should have rec eived full pro bation from the outse t.



       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                           I. FACTUAL BACKGROUND

       The proof shows that, on November 18, 1994, officers of the

Murfreesboro Police Department executed a search warrant on 539 East

Sevier Street, a residence operated by Appellant as a “good time” house. The

police recovered three grams of cocaine from behind a bathtub and found a

large qu antity of bee r, liquor, and soda in a refrigerato r with a m aster lock .

Appellant stated that he sold the beer for $1.50 each.



       On May 1, 1995, a Rutherford County Grand Jury indicted Appellant for

possession of over 0.5 grams of a Schedule II controlled substance with intent

to sell or de liver in violation o f Tenn essee Code Annota ted Sec tion 39-1 7-417.

He was also indicted for storage of intoxicating liquors for the purpose of

resale, a violation of Tennessee Code Annotated Section 39-17-713. On June


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9, 1995, Appellant pled guilty to the reduced charge of possession of less than

0.5 gram s of a Sc hedule II controlled s ubstan ce with inte nt to sell or de liver.

The second count of the indictment was dismissed. As part of the plea

agreem ent, App ellant rece ived a six-ye ar sente nce in the county w orkhou se.

As sta ted pre viously , the trial c ourt de nied A ppella nt’s pe tition for a fully

suspended sentence and ordered one year of incarceration.



                                    II. SENTENCING




       Wh en an app eal challenges the length, range , or manne r of service of a

sentence, this Court conducts a de novo review with a presumption that the

determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d)

(1990). However, this presumption of correctness is “conditioned upon the

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

principles and a ll relevant facts and circum stances.” State v. Ashby, 823

S.W .2d 166 , 169 (T enn. 19 91). In the e vent that the record fa ils to

demon strate such co nsideration, review o f the sentence is purely de novo . Id.

If appellate review reflects that the trial court properly considered all relevant

factors and its finding s of fac t are ad equa tely sup ported by the re cord, th is

Court must affirm the sentence, “even if we would have preferred a different

result.” State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). In

conducting a review, this Court must consider the evidence, the presentence

report, the sentencing principles, the arguments of counsel, the nature and

charac ter of the offe nse, m itigating an d enha ncem ent factors , any statem ents

made by the de fendan t, and the p otential for re habilitation o r treatme nt. State

v. Holland, 860 S.W .2d 53, 60 (T enn. Crim. A pp. 1993). T he defend ant bears

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the burd en of sho wing the improp riety of the se ntence impos ed. State v.

Gregory, 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).



       We note initially that the trial judge did not ad dress on the record

Appellant’s en titlement to the presu mption favoring a non-incarce rative

sentence. See, Tenn. Code Ann. Sec. 40-35-102(6). For this reason, our

review of Appe llant’s sentence w ill be purely de novo.



                             A. MANNER OF SERVICE

       Appellant first argues that the trial court erred in denying his petition for

a suspended sentence. The Tennessee Criminal Sentencing Reform Act of

1989 recognizes the limited capacity of state prisons and mandates that

“convicted felons committing the most severe offenses, possessing criminal

histories evincing a clear disregard for the laws and morals of society, and

evincing fa ilure of pas t efforts of reh abilitation sh all be given first priority

regarding sentencing involving incarceration.” Tenn. Code Ann. § 40-35-

102(5 ). A defe ndan t who d oes n ot qua lify as su ch an d who is an es pecia lly

mitigated or standard offender of a Class C, D, or E felony is “presumed to be

a favorable candidate for sentencing options in the absence of evidence to the

contrary.” Id. § 40-35-102(6). A sentencing court may then only deny

alternative sentencing when presented with sufficient evidence to overcome

the pres umptio n. State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91). A

denia l of altern ative se ntenc ing in th e face of the s tatutor y presu mptio n sho uld

be based on the following considerations:




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              (A) Con fineme nt is nece ssary to p rotect soc iety

       by restraining a defendant who has a long history of

       criminal c onduc t;

              (B) Co nfinem ent is n eces sary to avoid

       depreciating the seriousness of the offense or

       confineme nt is particularly suited to provide an effective

       deterrence to o thers likely to comm it similar offenses; or

              (C) Measures less restrictive than confinement

       have fr eque ntly or re cently b een a pplied unsu cces sfully

       to the defe ndant.

Tenn. C ode Ann . § 40-35-103 (1).



       As a Range I standard offender convicted of a Class C felony, Appellant

is entitled to th e statutorily-m andate d presu mption of alternative senten cing.

While failing to make specific reference to this presumption during the

suspe nded s entenc e hearin g, the trial cou rt did point o ut that its dec ision to

deny A ppella nt’s pe tition wa s bas ed up on his prior re cord a nd the fact tha t this

offense occurred during a probationary period. As stated previously, when

measures less restrictive than confinement have been recently applied without

success, a sentencing court may order incarceration in the face of an

alternative s entenc e presu mption . See id. (C). Here , we believe that,

because Appellant committed this cocaine possession offense while on

probation from another cocaine possession offense, a sentence involving

confinem ent is warra nted. See, e.g., State v. Bowman, No. 01C01-9412-CC-

00436 , 1995 W L 5947 18, at *4 (T enn. C rim. App . Oct. 6, 19 95), perm. app.

denied, (Tenn . Mar. 4, 19 96). In light of A ppellant’s failure to res pond to

                                           -5-
proba tion in th e pas t, a pun ishm ent les s restric tive than confin eme nt wou ld

only serve to give him the opportunity to continue his pattern of unlawful

behavio r. See State v. Windham, No. 03C01-9503-CR-00103, 1996 WL

134955 , at *2 (Tenn. C rim. App. Ma r. 27, 1996).



                         B. REAPPLICATION FOR PROBATION

         Appellant also a rgues that the trial cou rt erred in ordering tha t he serve

one year of his sentence before re-applying for probation. Appellant maintains

that the trial court ordered a sentence of split confinement, a one year

sentence of confinement followed by a period of probation, and that, under

Tennessee Code Annotated Section 40-35-306(c), he should have the

opportu nity to re-ap ply for a sus pende d sente nce eve ry two mo nths. W e

disagree. The record clearly reflects that the trial court rejected any form of

alternative sentence and, pursuant to the plea agreement, sentenced

Appellant to a six-year period of confinement in the county workhouse.1 The

trial cou rt in no w ay ass ured A ppella nt that th e bala nce o f his sen tence would

be suspended following successful completion of his first year of incarceration

-- only that he was required to serve one year before he would again have the

opportunity to apply for probation.2 Because Appellant wa s ordered to se rve

his sentence in the county workhouse, the trial court retained full jurisdiction

over the m anner o f service of h is senten ce. See Tenn. Code Ann. § 40-35-

212(c ). Given this sta tutory p rovision , we be lieve tha t the trial c ourt wa s within



1
  While the judgment form indicates that Appellant is to serve his sentence in the Tennessee
Department of Correction, the transcript of the suspended sentence hearing as well as the plea
agreement show that Appellant is to serve his sentence in the county workhouse.

2
  Section 4 0-35-30 6(c) app lies only to sen tences involving sp lit confinem ent. Bec ause A ppellant
did not receive a sentence involving split confinement, Section 40-35-306(c) is inapplicable, and
Appellan t’s claim is w ithout m erit.

                                                    -6-
its discretion in requiring A ppellant to serve o ne year of his sen tence before

re-applyin g for prob ation. See, e.g., State v. Steward , No. 02C01-9307-CC-

00161 , 1995 W L 2760 03, at *1 n .1 (Ten n. Crim. A pp. May 10, 199 5), perm.

app. denied, (Tenn. Oc t. 14, 1996).




      Accordingly, the judgment of the trial court is affirmed.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
WILLIAM M. BARKER, JUDGE




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