           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                           MARCH 1998 SESSION                 FILED
                                                            March 31, 1998
STATE OF TENNESSEE,            *      C.C.A. # 02C01-9704-CR-00158
                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
             Appellee,         *      SHELBY COUNTY

VS.                            *      Hon. Bernie W einman, Judge

THOMAS L. MATTHEWS,            *      (Possession of a Controlled Substance
                                       With Intent to Sell and Deliver)
             Appellant.        *




For Appellant:                        For Appellee:

Marvin Ballin                         John Knox Walkup
200 Jefferson Avenue, Suite 1250      Attorney General & Reporter
Memphis, TN 38103
                                      Georgia Blythe Felner
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      Paul Goodman
                                      Assistant District Attorney General
                                      201 Poplar Street, Suite 301
                                      Memphis, TN 38103




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

             The defendant, Thomas L. Matthews, pled guilty to one count of

unlawful possession of a controlled substance with intent to sell. Tenn. Code Ann.

§ 39-17-417. The plea agreement included a Range II sentence of six years with

the trial court to determine the manner of service. The trial court ordered service of

the sentence in the county workhouse. In this appeal of right, the defendant claims

the court erred by denying Community Corrections.



             We affirm the judgment of the trial court.



             On March 15, 1996, a search warrant was issued for a property

located at 1190 Greenwood in Shelby County. The defendant, who was present at

the time of the search, was found in possession of six and one-half grams of

cocaine.



              At the sentencing hearing, the defendant, fifty-eight years old, testified

that he became "heavily involved" in the drug business about eight to ten years ago.

He admitted having prior convictions for drug offenses and for violating his terms of

parole. The presentence report confirms at least four prior drug-related convictions

and two parole violations, the most recent in 1994, only two years before this

offense.



              The defendant completed eighth grade. He worked for a barber for

over fifteen years and, for several years thereafter, was self-employed in the real

estate business. At the time of this drug offense, he was an assistant in a paint

business.




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              The defendant testified that he suffers from sickle cell disease, which

causes aching in the bones, joints, and muscles. He has high blood pressure and

an ulcer. The defendant asked for an alternative sentence because of his "special

needs," insisting he could get his life on the right track. He explained that a series of

bad events had led him into trafficking illegal drugs.



              When a challenge is made 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 court from which the appeal is

taken are correct." Tenn. Code Ann. § 40-35-401(d). 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

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, -210.



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are, of course, presumed to be favorable candidates "for alternative

sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. §

40-35-102(6). With certain statutory exceptions, none of which apply here,

probation must be automatically considered by the trial court if the sentence

imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b).




                                            3
              Among the factors applicable to probation consideration are the

circumstances of the offense, the defendant's criminal record, social history, and

present condition, and the deterrent effect upon and best interest of the defendant

and the public. State v. Grear, 568 S.W.2d 285 (Tenn. 1978). The purpose of the

Community Corrections Act of 1985 was to provide an alternative means of

punishment for "selected, nonviolent felony offenders in front-end community based

alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The Community

Corrections sentence provides a desired degree of flexibility that may be both

beneficial to the defendant yet serve legitimate societal aims. State v. Griffith, 787

S.W.2d 340, 342 (Tenn. 1990). That the defendant meets the minimum

requirements of the Community Corrections Act of 1985, however, does not mean

that he is entitled to be sentenced under the Act as a matter of law or right. State v.

Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are

eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

              (3) Persons who are convicted of nonviolent felony
              offenses;

              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).

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              In State v. Ashby, our supreme court encouraged the grant of

considerable discretionary authority to our trial courts in matters such as these. 823

S.W.2d 166, 171 (Tenn. 1991). See State v. Moss, 727 S.W.2d 229, 235 (Tenn.

1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at

922. "It is not the policy or purpose of this court to place trial judges in a judicial

straight-jacket in this or any other area, and we are always reluctant to interfere with

their traditional discretionary powers." Ashby, 823 S.W.2d at 171.



              In denying Community Corrections, the trial court observed, "I don't

believe that the legislature intended for someone with your record to ... be out on the

streets." We agree. Initially, there is no presumption in favor of alternative

sentencing for a Range II offender. Tenn. Code Ann. § 40-35-102(6). That the

defendant has continued to commit drug offenses "indicates a lack of potential for ...

rehabilitation." Tenn. Code Ann. § 40-35-103(5). That the defendant had at least

two violations of the conditions of parole indicates "[m]easures less restrictive than

confinement have ... unsuccessfully" been applied to him. Tenn. Code Ann. § 40-

35-103(1)(C).



              The defendant contends the trial court did not give due consideration

to his ill health. That a person is in "ill health" and requires "constant medical

attention" may be a factor in support of the grant of an alternative sentence. Ashby,

823 S.W.2d at 170. The defendant did not, however, offer any proof showing his

condition could not be treated in the prison facility or that it required "constant

medical attention."



              Accordingly, the judgment of the trial court is affirmed.




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                          __________________________________
                          Gary R. Wade, Judge

CONCUR:



_____________________________
Joe B. Jones, Presiding Judge



______________________________
Jerry L. Smith, Judge




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