         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                September 19, 2000 Session

             STATE OF TENNESSEE v. SCARLET ROSE BENDER

                      Appeal from the Circuit Court for Dickson County
                           No. CR4695      Allen Wallace, Judge



                    No. M2000-1070-CCA-R3-CD - Filed October 13, 2000


The Defendant pleaded nolo contendere to possessing with the intent to sell or deliver over one
hundred pounds of marijuana, which is a Class B felony. Sentencing was left to the discretion of the
trial court. Following a sentencing hearing, the trial judge sentenced the Defendant to eight years
in the Department of Correction. On appeal, the Defendant argues that she should have been
sentenced as an especially mitigated offender and that she should have been allowed to serve her
sentence on probation. We affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE
OGLE , JJ., joined.

John B. Nisbet, III, Cookeville, Tennessee; William B. Lockert, III, Ashland City, Tennessee; and
Chris Young, Assistant Public Defender, for the appellant, Scarlet Rose Bender.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Dan Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                   OPINION

         The Defendant was indicted for possession with the intent to sell or deliver over one hundred
pounds of marijuana, a Class B felony. 1 A transcript of the guilty plea proceeding is not contained
in the record. The facts, as gleaned from the transcript of the sentencing hearing and the presentence
report, are that the victim was driving alone in an automobile when she was stopped for a traffic
violation on Interstate 40 in Dickson County. The officer detected the odor of marijuana coming
from the vehicle, and the Defendant consented to a search. In a hidden compartment of the
automobile, the officer found sixty-three separately wrapped packages of marijuana which had a total
weight of 133.3 pounds. The Defendant entered a plea of nolo contendere to the offense charged in
the indictment, with sentencing left to the trial court. After conducting a sentencing hearing, the trial
judge sentenced her to eight years in the Department of Correction to be served as a Range I standard
offender. It is from the sentence imposed by the trial judge that the Defendant appeals.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(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 circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

         When 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
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn.
Code Ann. §§ 40-35-102, -103, -210.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        At the time of sentencing, the Defendant was twenty-four years old, unmarried, and had no
prior criminal record. She was from Houston, Texas, was a high school graduate, and had been
employed in the past at a Wal-Mart store in the Houston area. She testified that she had agreed to
deliver the marijuana to Tennessee for a Texas drug dealer who had promised to pay her two
thousand dollars to make the trip. She said that this was the first time she had served as a "courier"
of marijuana. At the sentencing hearing, the State presented testimony that in recent months over


        1
            Tenn. Code Ann. § 39-17-41 7(i)(13).

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670 pounds of marijuana and over 265 pounds of cocaine had been seized along that particular
stretch of Interstate 40. An officer also testified that one stop netted "approximately 29 million
dollars worth of cocaine."

        The Defendant's primary argument is that she should have received probation. As the State
points out in its brief, the Defendant is statutorily ineligible for probation. The legislature has
specifically provided that a defendant shall not be eligible for probation if the defendant is convicted
of a violation of Tennessee Code Annotated section 39-17-417(i). See Tenn. Code Ann. § 40-35-
303(a). Because the Defendant was ineligible to be considered for probation, the trial judge certainly
did not err by denying probation.

        In addition, the Defendant argues that the trial court should have found her to be an especially
mitigated offender and thus should have reduced her minimum sentence and her release eligibility
date.2 A trial judge may find a defendant to be an especially mitigated offender if the defendant has
no prior felony convictions and if the court finds mitigating but no enhancement factors. Id. § 40-35-
109. This provision is not mandatory, but rather is discretionary. State v. Braden, 867 S.W.2d 750,
762 (Tenn. Crim. App. 1993); Tenn. Code Ann.§ 40-35-109, Sentencing Commission Comments.
Whether a defendant is to be sentenced as an especially mitigated offender is a determination that
rests within the sound discretion of the trial court. State v. Hicks, 868 S.W.2d 729, 730-31 (Tenn.
Crim. App. 1993). It has been noted that finding a defendant to be an especially mitigated offender
is reserved for "instances where the trial judge may desire to depart from even the minimum sentence
for a Range I offender and impose lesser penalties." Tenn. Code Ann. § 40-35-109, Sentencing
Commission Comments. The Defendant has not pursuaded us that the trial judge abused his
discretion by not finding her to be an especially mitigated offender.

        Based upon our review of this record, we cannot conclude that the trial judge erred or abused
his discretion in sentencing the Defendant to serve eight years in the Department of Correction as
a Range I standard offender. The judgment of the trial court is accordingly affirmed.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




       2
           See Tenn. Code Ann. § 40-35-109.

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