          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE        FILED
                            AUGUST 1998 SESSION
                                                    September 16, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 01C01-9801-CR-00018
      Appellee,                      )
                                     )    WILSON COUNTY
VS.                                  )
                                     )    HON. J. O. BOND,
CECELIA M. BEASLEY,                  )    JUDGE
                                     )
      Appellant.                     )    (Sentencing)



FOR THE APPELLANT:                        FOR THE APPELLEE:

COMER L. DONNELL                          JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

VIRGINIA TOWNZEN                          LISA A. NAYLOR
Assistant District Public Defender        Assistant Attorney General
213 North Cumberland Street               Cordell Hull Building, 2nd Floor
P. O. Box 888                             425 Fifth Avenue North
Lebanon, TN 37088-0888                    Nashville, TN 37243-0493

                                          TOM P. THOMPSON, JR
                                          District Attorney General

                                          DAVID DURHAM
                                          Assistant District Attorney General
                                          111 Cherry Street
                                          Lebanon, TN 37087-3609




OPINION FILED:



SENTENCE MODIFIED



JOE G. RILEY,
JUDGE
                                   OPINION


       The defendant pled guilty in the Wilson County Criminal Court to three (3)

counts of selling cocaine over 0.5 grams and one (1) count of possessing cocaine

over 0.5 grams with intent to sell. She agreed to an effective ten-year sentence and

submitted the amount of the fines and the issue of community corrections to the trial

court. The trial court imposed the minimum mandatory fines, refused to waive the

fines and denied community corrections. After a thorough review of the record, we

affirm the amount of the fines but modify the remaining portion of the sentences to

community corrections.



                                          I



       Defendant was indicted by the Wilson County Grand Jury on five (5) counts

of selling cocaine committed during the period September 5, 1996, to October 9,

1996. She was also indicted on one (1) count of possession of cocaine with intent

to sell committed on October 9, 1996. She entered guilty pleas to selling cocaine

on September 5, September 11, October 9, and to the October 9th possession of

cocaine with intent to sell. Pursuant to a plea agreement, she was sentenced to

eight (8) years on the first two (2) charges, nine (9) years on the third charge and

ten (10) years on the possession with intent charge, with all sentences to run

concurrently. The other two (2) counts were dismissed. The parties agreed to

submit the issue of the fines and community corrections to the trial judge. The trial

judge assessed the minimum mandatory fines of $2,000 on each count and denied

community corrections. This appeal followed.



                                         II



       At the time of sentencing defendant was a 22-year old single mother of three

(3) young children. The father of the children was not providing child support, and

the defendant was experiencing financial difficulties. She contended that she

                                         2
engaged in the sale of drugs due to these financial difficulties. She had no prior

criminal convictions.1 At the time of the hearing defendant had been incarcerated

approximately three (3) and one-half (½) months. Her mother cared for the children

during defendant’s incarceration. Defendant has remained incarcerated since her

sentencing.

       At the hearing the state noted that the defendant had “done a hundred five-

days, day-for-day. If the court feels like that’s enough time, we’re going to defer to

the court. If the court doesn’t, of course, we’re certainly not going to object either.”

The defendant sought placement in the community corrections program. The trial

court’s total ruling was as follows:

                You know, she was caught selling one, two, three, four times,
       that she pled guilty to. And she had some that were dismissed out of
       that. So, what to do with her? She’s a young lady, but she took -- the
       State thought enough of this that they wouldn’t settle it unless she
       took ten years, and that puts it about the limit as far as the regular
       probation goes, for sure. And I’m not going to put her on Community
       Corrections. I’m going to let her go down and serve her time. That’s
       just too much drugs, and it’s not a small amount. These were felony
       amounts, over a half gram, which the legislature evidently believes to
       be a large amount because they put a lot of punishment to it, so that’s
       what society thinks of this business. I don’t disagree with society on
       it. I think that something’s got to be done. We’ve got to stop people.
       And her only excuse for doing this was she had some bills she wanted
       to pay, spreading poison throughout our whole community. Not once.
       She didn’t pay enough bills the first time so she did it at least five
       times, or four times, that she’s pled to. And that’s an extensive
       amount of convictions. Fines are the minimum fines, because she
       would probably never be able to pay them anyway. But I’m not going
       to just forgive them. If she ever gets any money when she gets out
       she’ll have to go to work, when she gets out on parole. As a condition
       of parole she would have to pay these fines and work, and stay out of
       the housing projects. And earn a living.

              That’s going to be the judgment of the Court. Department of
       Corrections. And I don’t know how long they’ll keep her. They may
       keep her a long time, may not, who knows. Two thousand dollar
       ($2,000) fine on each one, standard offender, she’s already agreed
       to 30 percent on the original plea.

               That will be the judgment of the Court.

                                            III

       This Court’s review of the sentence imposed by the trial court is de novo with



       1
        In 1995 she was placed on pre-trial diversion for contributing to the delinquency of
a minor.


                                            3
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

      The Community Corrections Act establishes a program of community-based

alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann. §

40-36-103. A defendant is eligible for participation in a community corrections

program if the defendant satisfies several minimum eligibility criteria set forth at

Tenn. Code Ann. § 40-36-106(a).

       Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. However, the defendant is not

presumed to be a favorable candidate since these convictions are Class B felonies.

See Tenn. Code Ann. § 40-35-102(6).

       In determining if incarceration is appropriate, a trial court should consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn.

Crim. App. 1997).

       A court should also consider the mitigating and enhancing factors set forth

in Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103

considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d

435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the

defendant’s potential or lack of potential for rehabilitation when determining if an

alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State

v. Boston, 938 S.W.2d at 438.



                                           4
                                         IV



       Unfortunately, the record does not show that the trial judge considered the

sentencing principles and all relevant facts and circumstances.          To facilitate

appellate review, the trial court must place on the record its reasons for arriving at

the final sentencing decision. State v. Poole, 945 S.W.2d at 96. The only relevant

statutory criteria addressed by the trial judge were general deterrence and the

seriousness of the offenses. Due to the failure to comply with the Sentencing

Reform Act, there is no presumption of correctness and this Court must review the

sentence de novo. State v. Walton, 958 S.W.2d 724, 728 (Tenn. 1997).



                                          V



       We could remand to the trial court for further findings under these

circumstances.     However, we note that the defendant has already been

incarcerated continuously for approximately one (1) year. We, therefore, will

determine the sentence pursuant to Tenn. Code Ann. § 40-35-401(c)(2).

       Under the criteria set forth in Tenn. Code Ann. § 40-35-103(1), we note that

the defendant does not have a long history of criminal conduct as she has no prior

convictions. Less restrictive measures than confinement have not been applied

unsuccessfully since she has no prior convictions. Although the trial court relied

upon general deterrence, there is no proof in the record relating to this factor. See

State v. Ashby, 823 S.W.2d at 170. We do agree wholeheartedly with the trial court

that these were serious offenses. We note, however, that the offenses were

committed within a short period of time . One sale and the possession offense were

committed on the same date.

       We now examine mitigating and enhancement factors as well as the potential

for rehabilitation as all are relevant in alternative sentencing decisions. See State

v. Boston, 938 S.W.2d at 438. The state has not advanced the applicability of any

enhancement factors, nor has this Court been able to find any enhancement factors


                                          5
applicable.   See Tenn. Code Ann. § 40-35-114.              In mitigation we note the

defendant’s lack of criminal convictions. See Tenn. Code Ann. § 40-35-113(13). 2

Further, there has been no showing that the defendant lacks the potential for

rehabilitation.

       At sentencing the state did not object to defendant being placed on

community corrections. Likewise, the state did not object to the trial court denying

community corrections.

       In summary, we agree with the trial court that the defendant should serve

substantial time in incarceration. Defendant has been incarcerated continuously for

approximately one year. Under our power of de novo review, we conclude that

defendant’s confinement has been sufficient to accomplish the purposes of the

Criminal Sentencing Reform Act of 1989 and order that she be placed under the

strict requirements of community corrections.



                                           VI



       Finally, defendant contends the trial court abused its discretion in refusing to

waive or reduce the fines of $2,000 for each count. The trial court imposed the

mandatory minimum fine of $2,000 for each offense. See Tenn. Code Ann. § 39-

17-428(b)(7). However, the trial court may reduce, suspend or waive the mandatory

fine if the defendant is indigent, payment would result in severe economic hardship,

or payment would not be in the interests of justice. Tenn. Code Ann. § 39-17-

428(d)(1). The trial court refused to reduce or waive the mandatory fines.

       Certainly, a defendant’s ability to pay a fine is a relevant factor; however, it

is not necessarily the controlling factor. State v. Patterson, 966 S.W.2d 435, 446

(Tenn. Crim. App. 1997). A substantial fine may be punitive in the same manner



that incarceration may be punitive. State v. Marshall, 870 S.W.2d 532, 542 (Tenn.



       2
         The defendant has advanced the applicability of several mitigating factors. We
find it unnecessary to address their applicability.

                                            6
Crim. App. 1993).

       In imposing the minimum fines, the trial court noted the defendant’s present

inability to pay. The trial court, nevertheless, refused to “forgive them” finding that

she might have the ability to pay in the future. The trial court retains jurisdiction,

even after final judgment, to modify the fines. State v. Blevins, 968 S.W.2d 888,

895 (Tenn. Crim. App. 1997); Tenn. Code Ann. § 40-24-102. We conclude the trial

court did not err in refusing to reduce or waive the mandatory minimum fine.



                                   CONCLUSION



       This Court much prefers to review sentencing determinations with a

presumption of correctness attached to the trial court’s rulings. However, this Court

is not authorized to do so when the relevant sentencing considerations are not set

forth in the record. We acknowledge our inability to observe the appearance and

demeanor of the defendant and our disadvantage in making de novo sentencing

determinations. Nevertheless, it becomes our duty to do so in the absence of a

proper record.

       We affirm the trial court’s imposition of the fines. This case is remanded to

the trial court for entry of a modified judgment which places defendant in the

community corrections program.



                                           ________________________________
                                           JOE G. RILEY, JUDGE




CONCUR:

_____________________________
JOSEPH M. TIPTON



_____________________________
THOMAS T. WOODALL



                                          7
