         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                      JANUARY 1999 SESSION
                                                  FILED
                                                     June 10, 1999

                                                 Cecil Crowson, Jr.
                                                Appellate Court Clerk
STATE OF TENNESSEE,        )
                           ) C.C.A. No. 02C01-9801-CR-00014
     Appellee,             )
                           ) Shelby County
V.                         )
                           ) Honorable Arthur T. Bennett, Judge
                           )
BRONCHE R. TERRELL,        ) (Possession of Controlled Substance)
                           )
     Appellant.            )




FOR THE APPELLANT:            FOR THE APPELLEE:

WILLIAM D. MASSEY             JOHN KNOX WALKUP
3074 East Street              Attorney General & Reporter
Memphis, TN 38128
(on appeal)                   DOUGLAS D. HIMES
                              Assistant Attorney General
ANDRE STEPTER                 425 Fifth Avenue North
231 Bellevue Avenue           Nashville, TN 37243
Memphis, TN 38104
                              WILLIAM L. GIBBONS
                              District Attorney General

                              GLEN BAITY
                              Assistant District Attorney General
                              Criminal Justice Center, Suite 301
                              201 Poplar Avenue
                              Memphis, TN 38103




OPINION FILED: ___________________

AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                    OPINION

      The defendant, Bronche R. Terrell, pleaded guilty to possession of two

pounds of marijuana with intent to sell, a Class E felony. See Tenn. Code Ann. §

39-17-417(g)(1). In accordance with his plea agreement, the trial court

sentenced the defendant to one year and imposed a fine of two thousand

dollars. At a subsequent hearing to determine the manner of service of his

sentence, the trial court ordered that the defendant serve thirty days confinement

and suspended the balance of his sentence with probation. The defendant

appeals, arguing that the trial court erred in denying full probation and imposing

a period of confinement. We AFFIRM the judgment of the trial court.



                                 BACKGROUND

      The defendant, his father, and a friend were stopped for speeding while

driving through Memphis, Tennessee, en route from Dallas, Texas to

Washington, D.C. The police obtained written permission to search the

defendant’s vehicle and discovered two pounds of marijuana packed in coffee

grounds in the trunk. The defendant was indicted and pleaded guilty to

possession of marijuana with intent to sell and was sentenced to one year and a

two thousand dollar fine. At a hearing to determine the manner of service of this

sentence, the defendant revealed that he had sold drugs to fund his purchase of

the marijuana in Dallas. He had planned to deliver the marijuana to his cousin in

Washington for resale, and he and his cousin were to split the profit. On cross

examination, the defendant acknowledged the drug problems in Dallas, Texas;

Memphis, Tennessee; and Washington D.C.. He further acknowledged that his

role as a dealer/supplier exacerbated the problem. Based on this evidence, the

trial court found some period of confinement necessary to avoid depreciating the

seriousness of the defendant’s offense and to deter others likely to commit

similar offenses. See Tenn. Code Ann. § 40-35-103(1)(B). Accordingly, the trial

court ordered that the defendant serve thirty days confinement and that he be

placed on probation for the balance of his sentence. The defendant asserts that

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he is entitled to full probation and that a sentence of confinement is not

warranted.



                             STANDARD OF REVIEW

       Appellate review of a challenge to the length or manner of service of a

sentence is de novo on the record, “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). 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). If our review reflects that the trial court properly considered all relevant

factors and its findings of fact are adequately supported in the record, then this

Court may not disturb the sentence even if we would have preferred a different

result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The appellant carries the burden of showing that his sentence is improper. See

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

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



                                   PROBATION

       Although the defendant is statutorily eligible for full probation, see Tenn.

Code Ann. § 40-35-303(a), he is not entitled to probation as a matter of law, see

State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Rather, the defendant bears

the burden of establishing his suitability for probation. See Tenn. Code Ann. §

40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).

To meet this burden, the defendant “must demonstrate that probation will

‘subserve the ends of justice and the best interest of both the public and the

defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995)

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

to be considered include the circumstances of the offense; the defendant's

criminal record, social history, and present condition; and the need for



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deterrence. See State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v.

Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). A defendant’s lack of

truthfulness or candor is also an appropriate consideration, as this reflects

negatively on the defendant's potential for rehabilitation. State v. Dowdy, 894

S.W.2d 301, 306 (Tenn. Crim. App. 1994).



                                  CONCLUSION

       In the present case, the trial court found that the defendant was not

candid with the court at his sentencing hearing. This finding is clearly supported

by the record, which reflects often nonresponsive and occasionally self-

contradictory testimony by the defendant. In addition, the trial judge found that

the seriousness of the offense merited some time of confinement. Thus, despite

the defendant’s lack of criminal record and his obtaining employment since the

offense, the evidence does not preponderate against the trial court’s decision to

deny full probation. The judgment of the trial court is affirmed.



                                  CONCLUSION

       The judgment of the trial court is AFFIRMED.




                                              _____________________________
                                              JOHN EVERETT W ILLIAMS, Judge

CONCUR:



_____________________________
DAVID G. HAYES, Judge




_____________________________
JOE G. RILEY, Judge




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