        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                             FILED
                          AT KNOXVILLE
                                                          October 14, 1999

                         MAY 1999 SESSION                Cecil Crowson, Jr.
                                                        Appellate Court Clerk




STATE OF TENNESSEE         *     C.C.A. # 03C01-9809-CC-00328

           Appellee,       *     SEVIER COUNTY

VS.                        *     Honorable Richard R. Vance, Judge

RONNIE MASON,              *     (Selling Marijuana--Two counts;
                                 Conspiracy--One count)
           Appellant.      *



FOR THE APPELLANT:               FOR THE APPELLEE:

EDWARD C. MILLER                 PAUL G. SUMMERS
Public Defender                  Attorney General & Reporter
P. O. Box 416
Dandridge, TN 37725              ELLEN H. POLLACK
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 AL C. SCHMUTZER, JR.
                                 District Attorney General

                                 MICHAEL ANTONIO GALLEGOS
                                 Assistant District Attorney
                                 125 Court Avenue, Room 301-E
                                 Sevierville, TN 37862




OPINION FILED: _______________




AFFIRMED



JOHN EVERETT WILLIAMS,
Judge

                                   OPINION

         The defendant, Ronnie Mason, pleaded guilty to sale of over .5 ounces of

a Schedule VI controlled substance, a Class E felony, and to conspiracy to sell a

Schedule VI controlled substance, a Class A misdemeanor. He appeals from his

sentences of one year, split confinement with 20 days in the county jail, the

remainder in Community Correction on the Class E felony, and 11 months 29

days with 20 in the county jail on the Class A misdemeanor concurrent with the

felony. In this appeal, the defendant contends he should have received full

probation or judicial diversion. We AFFIRM the sentences imposed by the trial

court.



                                  BACKGROUND

         Detective Turner of the Sevier County Sheriff’s Department was working

in an undercover capacity with a confidential informant when they made contact

with Jimmy Ernest at the Star Tracks Arcade in Pigeon Forge, Tennessee.

Ernest arranged a meeting regarding a marijuana transaction with the defendant,

the informant, and Turner. The defendant stated that he could obtain one-

quarter pound of marijuana for $400 but told them that only he could go to his

source for the drugs. The defendant obtained the marijuana and delivered it

through Ernest to the officer. Laboratory analysis of the substance identified it

as 91.5 grams of marijuana.



         A sentencing hearing was held on July 6, 1998, at which the defendant

testified as to the only witness. The trial court considered the defendant’s pre-

sentence report. At this hearing the state asked that the defendant be

sentenced to a two year sentence with split confinement. That being, 90 days in

jail and the remainder on supervised probation. The trial court found that the

offense occurred almost two years prior to sentencing, that the defendant had

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good and steady employment, had family responsibilities, had no prior criminal

record, and had done some good and positive things with his life. The trial court

found the defendant entitled to the presumptive minimum sentence of one year.



       The trial court made several pertinent findings for granting an alternative

sentence in split confinement:

       (1) The transaction began at an arcade frequented by youths;
       (2) the defendant had established association with and access to a
           major dealer;
       (3) the defendant admitted to multiple instances of illegally using
           controlled substances, including during his release under bond
           for the instance offenses.



       The defendant asked the trial court to reconsider its sentence and another

hearing was held on August 17, 1998. At this hearing, we note that the

defendant did not complain that the trial court did not properly consider all

appropriate sentencing factors. Rather, he argued that other people similarly

situated were given lighter sentences by another judge in a different diversion.

The trial judge stood steadfast to his prior sentence and refused to stipulate why

another judge sentenced the way he did. This trial judge felt that inappropriate

for consideration. We agree.



                                    ANALYSIS

       As his only issue for this appeal, the defendant queries whether the trial

court erred by imposing a sentence of 20 days of confinement and subsequent

Community Corrections. When an accused challenges the length of manner of

service of a sentence, this Court reviews the record de novo “with a presumption

that the determinations made by the court from which the appeal is taken are

correct.” Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is

contingent on the record indicating both the lower court’s reasons for arriving at a

sentencing decision and compliance with the statutory sentencing guidelines and

principles. See State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995). The

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appellant bears the burden of showing that the sentencing was improper. See

Tenn. Code Ann. § 40-35-401(d) sentencing comm’n comments; State v.

Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996). The following

considerations apply: (1) the evidence received at trial and at the sentencing

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

arguments as to the sentencing alternatives; (4) the nature and characteristics of

the criminal conduct involved; (5) any statutory mitigating or enhancement

factors; (6) any statement made by the accused on his own behalf; and (7) the

potential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann.

§§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim.

App. 1987).



       The trial court denied deferment because of the defendant’s admitted

narcotic use and to avoid depreciating the seriousness of the offense. Further,

the trial court found the imposed punishment necessary to avoid depreciating the

severity of the offense, involving a commercial amount of an illegal substance.

That court applied the Range I presumptive minimum sentence, based on the

preceding enumerated factors, for the Class E felony offense. See Tenn. Code

Ann. § 40-35-112(a)(5).



       The defendant’s offense does not invoke the standard established in prior

case law and subsequently codified, see Tenn. Code Ann. § 40-35-103(1)(B);

State v. Cleavor, 691 S.W.2d 541 (Tenn. 1985), in that it was not “especially

violent, horrifying, shocking, reprehensible, offensive, or otherwise of an

excessive or exaggerated degree,” Cleavor, 691 S.W.2d at 543. The defendant

is presumed “a favorable candidate for alternative sentencing in the absence of

evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); see also Tenn.

Code Ann. § 40-35-303(a). However, even if the defendant is entitled to a

presumption of alternative sentencing, he has the burden of establishing


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suitability for full probation. See State v. Bingham, 910 S.W.2d 448, 456-57

(Tenn. Crim. App. 1995). This burden entails a demonstration that full probation

will “subserve the ends of justice and the best interest of both the public and the

defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990).



       The record shows that the defendant participated in local narcotics trade,

with access, exclusive among the codefendants, to a local source of significant

quantities of drugs. Significantly, the defendant’s admitted abuse of controlled

substances included that period of time on which he was on released from

custody. In fact, when the capias for the instant offenses were served, the

defendant possessed drug paraphernalia and was found guilty of that offense.

We conclude that the defendant’s drug involvement and criminal activities while

on bond constitute a valid reason for denying full probation in best interest of

both the public and the defendant. For the same reasons, we agree with the trial

court’s determination that judicial diversion was inappropriate. See State v.

Bingham.



                                   ________________________________
                                   JOHN EVERETT W ILLIAMS, Judge

CONCUR:




_________________________________
JAMES CURWOOD WITT, JR., JUDGE




_________________________________
ALAN E. GLENN, Judge




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