         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs June 28, 2005

              STATE OF TENNESSEE v. ALETA RENEE SOUDER

                    Appeal from the Criminal Court for Sullivan County
                            No. S47,896   R. Jerry Beck, Judge



                       No. E2004-02190-CCA-R3-CD - August 30, 2005


The defendant, Aleta Renee Souder, appeals her Sullivan County effective incarcerative sentence
of 18 months on her guilty-pleaded convictions for possession of more than one-half ounce of
marijuana for resale, a Class E felony, two counts of possession of drug paraphernalia, a Class A
misdemeanor, and unlawful possession of a switchblade knife, a Class A misdemeanor. The
defendant had sought a probationary sentence or some form of alternative sentencing, which the trial
court rejected. Our review of the record discloses no basis to disturb the trial court’s sentencing
decision, and we affirm the judgments.

             Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER , JJ., joined.

Stephen M. Wallace, District Public Defender; and Joe Harrison, Assistant Public Defender, for the
Appellant, Aleta Renee Souder.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                The sole issue on appeal is whether the trial court erred in denying probation or
alternative sentencing to the defendant.

                On June 25, 2003, the Sullivan County Grand Jury returned a presentment charging
the defendant with possession of more than one-half ounce of marijuana for resale, Tenn. Code Ann.
§ 39-17-417(a)(4), (g)(1) (2003), two counts of possession of drug paraphernalia, id. § 39-17-
425(a)(1), (2), and unlawful possession of a switchblade knife, id. § 39-17-1302(a)(7), (d)(4). The
defendant entered into a plea agreement with the state whereby she entered an Alford plea to the
marijuana possession charge and pleaded guilty to the remaining counts with an agreed sentence of
18 months for the marijuana possession, 11 months and 29 days for each of count of paraphernalia
possession, and 11 months and 29 days for the switchblade knife possession. It was further agreed
that the sentences were to be served concurrently and that the defendant was a Range I standard
offender. The manner of service of the sentences was reserved for the trial court’s determination.

               The transcript of the plea submission hearing conducted on April 12, 2004 reflects
the following factual underpinning for the defendant’s guilty pleas:

               On February the 6th, 2003, members of the Kingsport Police
               Department Vice Unit executed a search warrant at the Defendant’s
               home at 121 ½ Virgil Avenue, Kingsport, Sullivan County,
               Tennessee. Upon knocking and announcing, the defendant opened
               the door. She was advised of the search warrant. The officer stepped
               into her residence. In addition to being advised of the search warrant
               and its execution, she was Mirandized, and after being advised she
               indicated that she understood her rights. She agreed to speak with the
               officer. Detective Chambers asked her if there was any marijuana in
               the house, and she said that only what she used for medicinal
               purposes. He asked her where it was, and she indicated that it was in
               the night stand drawer beside her bed. The search of the home
               revealed that number one, in a night stand drawer beside the bed was
               several tin containers found that had marijuana seeds, there were
               rolling papers, pipes, other materials that were found in a separate
               drawer with approximately a quarter pound of marijuana that was
               packaged up in four large bags of marijuana, and packaged for resale.
               There were a number of plastic bags that were found, many with the
               baggie corners cut off. Also some of the baggies being cut in half
               would be consistent with the packaging of marijuana for resale.
               Additionally scales were found that would be used in the packaging
               of the marijuana in small amounts. On the front door was a
               handwritten note that said “no sale until 9:00 a.m.” This note was
               taken into custody. The defendant was asked how much marijuana
               the officers would find, and she indicated about a quarter or a quarter
               of a pound which was consistent with the four large baggies of
               marijuana. She was asked as to an individual that was there at the
               home at the time of the search warrant if he had anything to do with
               it; and she indicated “no”; that all of the marijuana that was found
               was in fact hers. She was asked how long she had been selling
               marijuana, and she said “not as long as you think.” When the
               detective asked her how long that was, she said that the officers didn’t
               understand, that the last time they were at her house, they had seized
               the money that she had; and that she had no choice but to sell


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               marijuana to make ends meet. The defendant was placed under
               arrest. The marijuana that was seized was sent to the T.B.I. Crime
               Laboratory. As to the four bags of marijuana, those tested positive
               for Schedule VI controlled substance in the amount of 109.8 grams.
               Also the other amounts of marijuana that were seized as well as
               marijuana cigarettes were rolled, all proved to be positive for
               marijuana in an amount that would be approximately a hundred and
               eighty to a hundred and ninety grams of marijuana. . . . The – in the
               search of the defendant’s residence, there was also located a
               switchblade knife which would be a prohibited weapon. The
               defendant acknowledged to the possession of that weapon.

                The sentencing hearing was conducted on August 31, 2004. The 47-year-old
defendant testified that she was divorced and lived alone. She had two grown children, and the third
child was a minor living in South Carolina with the father. The defendant graduated from high
school and was currently disabled because of her health; she said that she was receiving $552 per
month as supplemental security income (SSI) from the government.

                In terms of her health problems, the defendant testified that for 17 years she had
fibromyalgia and chronic fatigue syndrome. Additionally, the defendant said that she had high blood
pressure and had been diagnosed with hepatitis C. According to the defendant, her maladies had
“left [her] basically bedridden.” She took numerous prescription medications on a daily basis,
including an antihistamine, blood pressure medicine, muscle relaxer, a sleeping aid and a cholesterol
reducer. In addition, she periodically took an antidepressant. Furthermore, the defendant recounted
that she suffered anxiety attacks and had a nervous compulsion to pull out her hair, known as
trichotellomania.

                The defendant testified that she seldom drank alcohol. She did begin using marijuana
when she was 17 or 18 years old, but then she quit for many years. Her marijuana use resumed in
the past four or five years, and she said that the marijuana was “the only thing that [she] had been
able to find so far to help medicinally.”

               Regarding previous offenses, the defendant testified that she had received judicial
diversion for an offense that occurred in 2001. The diversion was later revoked in 2002 because it
was discovered that she had a conviction when she was 20 years old. The defendant explained that
she was unaware that the earlier conviction made her ineligible for judicial diversion. Nevertheless,
the defendant said that she successfully followed all of the conditions of probation for the 2001
offense.

               On cross-examination, the defendant insisted that the marijuana seized from her
residence was for personal, medicinal use; she flatly denied selling any marijuana. She said that she
thought having almost a quarter of a pound of marijuana would “last [her] a while like that.”



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Regarding the sign taped to her front door, the defendant testified that it was a yard sale sign from
a month earlier, which she had not taken off the door.

                The defendant denied admitting to Detective Chambers that she had sold marijuana.
She thought she “[p]robably” could pass a drug test because she had “only smoked maybe two or
three times in the last five or six months,” during which time her case was pending. She claimed at
first not to remember from whom she purchased the marijuana, but she then declined to provide any
names because she did not “think that would be right to do that.”

                  The state filed and relied upon the presentence investigation report that had been
prepared.

                  After hearing the defendant’s testimony and considering the presentence investigation
report, the trial judge denied probation and alternative sentencing. The court explained its ruling as
follows:

                           The Court denies the petition. The Court finds that the . . .
                  defendant in this case has a prior history of criminal conviction, and
                  criminal behavior. The Court doesn’t feel like she has been perfectly
                  candid with the Court about whether or not she is selling marijuana.
                  The Court notices in the pre-sentence report that these drugs were
                  wrapped in plastic baggies indicative of purposes of resale in which
                  she had denied that she is in the business of reselling. So therefore,
                  for all of these reasons, the petition is denied. She’ll be given thirty
                  days to report to jail . . . .1

                On appeal, the defendant complains that the trial court failed to consider that she does
not pose a danger to society, does not have a long history of criminal conduct, and does not require
restraint beyond what is imposed by her physical condition. She argues that the presumption of
alternative sentencing was not rebutted in this case, and she requests that her sentence be modified
to probation, intensive probation, or community corrections.

                We begin with our familiar standard of review. When there is a challenge to the
length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo
review of the record with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d) (2003). 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); see State v. Hooper, 29
S.W.3d 1, 5 (Tenn. 2000). “The burden of showing that the sentence is improper is upon the
appellant.” Ashby, 823 S.W.2d at 169. In the event the record fails to demonstrate the required
consideration by the trial court, review of the sentence is purely de novo. Id. If appellate review,


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            The trial court set the defendant’s appeal bond at $5,000, and she is currently on bond pending this appeal.

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however, reflects that the trial court properly considered all relevant factors and its findings of fact
are adequately supported by the record, this court must affirm the sentence, “even if we would have
preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                 We first note that in ordering an incarcerative sentence, the trial court issued brief
remarks. Even so, we are convinced that the trial court considered the sentencing principles and all
relevant facts and circumstances in arriving at its decision. The length of the defendant’s sentence
was not a contested issue and did not require the trial court’s consideration. The only issue before
the trial court was the manner of service of the defendant’s sentence in light of the defendant’s
application for probation or alternative sentencing. The record demonstrates that the trial court relied
heavily on the defendant’s lack of candor and her prior criminal convictions and behavior. We will
not disturb the trial court’s assessment of the defendant’s credibility, as the trial court was in the best
position to make that determination. See State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
Consequently, we will conduct our de novo review with a presumption that the trial court’s
determinations are correct. See Ashby, 823 S.W.2d at 169.

                It is undisputed that the defendant was eligible for probation, having received an 18-
month sentence. See Tenn. Code Ann. § 40-35-303(a) (2003). However, as we have pointed out on
numerous occasions, the determination of entitlement to full probation necessarily requires a separate
inquiry from that of determining whether a defendant is entitled to a less beneficent alternative
sentence. See State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). A defendant is required to establish her
“suitability for full probation as distinguished from h[er] favorable candidacy for alternative
sentencing in general.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see Bingham,
910 S.W.2d at 455-56. A defendant seeking full probation bears the burden of showing that
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), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                Regarding considerations relevant to probation, the trial court is directed to consider
the nature and circumstances of the offense, the defendant’s criminal record, the defendant’s
background and social history, his or her present condition, including physical and mental condition,
and the deterrent effect on the defendant. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim.
App. 1999). The court should also consider the potential for rehabilitation or treatment of the
defendant in determining the appropriate sentence. See Tenn. Code Ann. § 40-35-103(5) (2003).
Moreover, in State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983), the supreme court held that
truthfulness is certainly a factor which the court may consider in deciding whether to grant or deny
probation.

               In addition to eligibility for probation, the defendant, as a standard offender convicted
of a Class E felony and Class A misdemeanors, was entitled to the presumption of favorable
candidacy for alternative sentencing in the absence of evidence to the contrary. See Tenn. Code Ann.
§ 40-35-102(6) (2003) (presumption extended to an offender who is “an especially mitigated or


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standard offender convicted of a Class C, D or E felony”). Even so, favorable candidacy does not
provide that all offenders who meet the criteria are entitled to such relief; rather, it requires that
sentencing issues be determined by the facts and circumstances presented in each case. State v.
Bolling, 75 S.W.3d 418, 420 (Tenn. Crim. App. 2001). The presumption of favorable candidacy for
alternative sentencing may be rebutted, for instance, by a showing that confinement may be
necessary to “protect society by restraining a defendant who has a long history of criminal conduct”
or that “measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant.” See Tenn. Code Ann. § 40-35-103(1)(A), (C) (2003).

                Turning first to the matter of probation, the record reveals that the defendant failed
to meet her burden of demonstrating that probation will “subserve the ends of justice and the best
interest of both the public and the defendant.” Dykes, 803 S.W.2d at 259. On appeal, the defendant
relies heavily on her physical and mental disabilities as showing that she does not pose a danger to
society. Her pre-existing disabilities, however, do not amount to an effective demonstration that the
defendant is indeed a suitable candidate for probation, nor are they sufficient to rebut the
presumption of correctness applied to the trial court’s findings. Furthermore, we note that the
defendant’s disabilities apparently did not interfere with her marijuana sales efforts; the danger that
she poses to society clearly has not been neutralized by any physical or mental limitations. Her
untruthfulness with the trial court about selling marijuana also stunts any momentum that might have
favored a suspended sentence. Her insistence that she did not sell marijuana, although she had nearly
a quarter of a pound of marijuana that was packaged consistent with resale, although scales for
weighing marijuana were found in the residence, and although a handwritten note “no sale until 9:00
a.m.” was posted on her door, was patently unbelievable. Accordingly, we decline to disturb the trial
court’s rejection of probation in this case.

                 Regarding a less beneficent alternative sentence, we likewise conclude that the trial
court did not err in finding sufficient evidence existed to rebut the presumption of favorable
candidacy for alternative sentencing. Although the trial court relied upon the defendant’s
untruthfulness as a basis for denying an alternative sentence, and although a sentencing court may
appropriately consider “the defendant’s candor and credibility, or lack thereof, as indicators of [her]
potential for rehabilitation,” see, e.g., State v. Michael K. Miller, No. W2003-01621-CCA-R3-CD,
slip op. at 3 (Tenn. Crim. App., Jackson, July 27, 2004), we have recognized that “absent other
factors, untruthfulness to the court will not per se warrant a denial of all alternative sentencing” in
general, as opposed to probation in particular, see State v. Tammy Cheak Trent, No. E2003-
01726-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Knoxville, Oct. 20, 2004); see also State v.
Nunley, 22 S.W.3d 282, 286 (Tenn. Crim. App. 1999) (stating that although the factor “‘social
history’ must be considered “in determining whether to grant probation . . . , social history is not
specifically mentioned by the code as a factor to be used in overcoming the presumption of
suitability for alternative sentences”). Nevertheless, the presumption of favorable candidacy for an
alternative sentence may be overcome by the need to “protect society by restraining a defendant who
has a long history of criminal conduct.” Tenn. Code Ann. § 40-35-103(1)(A) (2003). The defendant
admitted that she used marijuana years earlier and again during the past four or five years, although
she maintained that her recent use of the illicit drug was to “relieve some of the terrible pain” and


                                                 -6-
to “avoid prescriptions for any more heavy medication.” Significantly, the defendant admitted to
using the drug while her present case was pending in the trial court. The defendant was convicted
in 2000 of possession of marijuana and of possession of drug paraphernalia. In 1978, she was
convicted of marijuana possession, of violation of the open container law, and of aiding and abetting
prostitution. Even if we discount the importance of the 1978 convictions, we discern a history of
criminal conduct that is long enough to support the trial court’s imposition of an 18-month
incarcerative sentence.

               On appeal, the defendant for the first time asserts that she should have been
considered for placement in a community corrections program. She makes this assertion in the
“Conclusion” section of her appellate brief, but she cites no authority and offers no supporting
argument. That sentencing option, in our opinion, has been waived. See R. Tenn. Ct. Crim. App.
10(b).

               In our view, the record supports the manner of service of the sentence imposed. The
defendant failed to carry her burden to show entitlement to probation, and the presumption of
alternative sentencing was sufficiently rebutted in this case. The trial court thus did not err by
imposing a sentence of confinement.

               Accordingly, we affirm the judgments of the trial court.



                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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