        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 11, 2001

            STATE OF TENNESSEE v. WILLIAM TONY MELTON

                  Direct Appeal from the Circuit Court for Carroll County
                       No. 99CR-1430      C. Creed McGinley, Judge



                    No. W2000-01742-CCA-R3-CD - Filed May 14, 2001


The Defendant pleaded guilty to manufacturing methamphetamine, a Schedule II controlled
substance. The Defendant was sentenced as a Range I standard offender to five years in the
Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred
in denying him alternative sentencing. Finding no error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOE G. RILEY, J., joined.
JOHN EVERETT WILLIAMS, J., not participating.

Dwayne D. Maddox, III, Huntingdon, Tennessee, for the Appellant, William Tony Melton.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                           OPINION

       The Defendant, William Tony Melton, pleaded guilty to manufacturing methamphetamine,
a Schedule II controlled substance, a Class C felony. The Defendant was sentenced as a Range I
standard offender to five years in the Tennessee Department of Correction. The Defendant now
appeals, arguing that the trial court erred in denying him alternative sentencing.


                                             FACTS

       The Defendant was arrested after a Carroll County Sheriff’s deputy served a warrant at the
residence of Ricky Pace. The Defendant was in the residence when the deputy entered to serve a
detainer warrant on Pace. The deputy smelled a strong odor of ammonia and starter fluid. A search
warrant was subsequently obtained and executed on the Pace residence, where methamphetamine
and other chemicals used in the manufacture of methamphetamine were found.

        The Defendant was indicted by the Carroll County Grand Jury, along with Ricky Pace, on
one count of manufacturing a controlled substance. On the day that the case was scheduled for trial,
the Defendant failed to appear, and a capias was issued for the Defendant to be held without bond.
The Defendant was subsequently taken into custody and entered a guilty plea as a Range I standard
offender with an effective sentencing range of three to six years. The length of sentence and manner
of service were to be determined by the trial court at a sentencing hearing.

        At the sentencing hearing, the only proof presented was a pre-sentence report and a notice
of enhancement filed by the State. According to the pre-sentence report, the Defendant told the
probation officer that about two months before they were arrested, Ricky Pace said that he knew how
to make “crank.” According to the Defendant, Pace provided all of the ingredients for the crank
except for “a few pills” which the Defendant provided. The Defendant claimed they were making
the crank for their own personal use. The Defendant claimed that he was only in Pace’s home to
obtain “a little free dope” for his personal use in exchange for obtaining the pills for Pace.

        The pre-sentence report also revealed that the Defendant had numerous prior convictions,
including eight felony convictions for forgery. The Defendant had misdemeanor convictions for
possession of marijuana, theft, passing worthless checks, DUI, driving on a revoked license, casual
exchange and failing to stop at the scene of an accident. The Defendant was previously granted
alternative sentencing on other charges, but failed to successfully complete his probation. Regarding
his drug use, the Defendant said, “I’ve smoked 2 or 3 joints a day for the past 20 years. I’ve only
been doing meth for about 3 years. About an 8-ball on weekends. Probably no more than a gram
or two 2 or 3 times a year on cocaine.” The trial court sentenced the Defendant as a Range I standard
offender to five years in the Tennessee Department of Correction.


                                            ANALYSIS

       The Defendant argues that the trial court erred in sentencing him to five years incarceration.
Specifically, the Defendant argues that the trial court did not affirmatively articulate all of the
sentencing principles, as well as all the relevant facts and circumstances of the case, in making its
sentencing determination.


                                        Length of Sentence

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must 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, however, “is conditioned upon the affirmative showing in the record that the trial court


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considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

         The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must
start at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors,
and then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-
210(e). The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854
S.W.2d at 123. However, the sentence must be adequately supported by the record and comply with
the purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229,
237 (Tenn. 1986).

        When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.

        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). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.




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        There is ample evidence in the record to support the sentence imposed by the trial court. The
trial court properly applied two enhancement factors in this case. First, the trial court found that the
Defendant had a previous history of criminal convictions or criminal behavior. Tenn. Code Ann.
§ 40-35-114(1). Although many of the convictions were misdemeanors, the Defendant had eight
felony forgery convictions with two separate offense dates and a felony joyriding conviction. The
trial court also found that the Defendant had a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community. Id. § 40-35-114(8). The Defendant
does not argue that these factors should not have been applied, but rather, he argues that the trial
court placed too much weight on those factors. However, the weight to be given each factor is left
to the discretion of the trial judge. Shelton, 854 S.W.2d at 123.

         The Defendant argues that “there is no proof in the record, and affirmatively articulated by
the trial court, that it considered all of the sentencing principles and all relevant facts and
circumstances.” We disagree. As we have already stated, there was ample evidence in the record
to justify the Defendant’s sentence. In addition, we conclude that the trial adequately followed the
proper sentencing procedure. The trial court stated which enhancement factors were to be applied
and its reasoning for doing so. Because there were two enhancement factors and no mitigating
factors, the trial court properly found that the Defendant was not entitled to the presumptive
minimum sentence.


                                                 Manner of Service

         With certain exceptions, a defendant is eligible for probation if the sentence actually imposed
is eight years or less. Tenn. Code Ann. § 40-35-303(a). “Although probation ‘must be automatically
considered as a sentencing option for eligible defendants, the defendant is not automatically entitled
to probation as a matter of law.’” State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn.
Code Ann. § 40-35-303(b) sentencing comm’n cmts). In determining whether to grant or deny
probation, the trial court may consider the circumstances of the offense; the defendant’s criminal
record, background and social history; the defendant’s physical and mental health; the deterrent
effect on other criminal activity; and the likelihood that probation is in the best interests of both the
public and the defendant. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The
Defendant has the burden of establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b);
Ashby, 823 S.W.2d at 169. An especially mitigated or standard offender convicted of a Class C,
D or E felony who does not fit within certain parameters1 is presumed to be a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-
35-102(6).




         1
            Tennessee Code Annotated § 40-35-102(5) states that “[c]onvicted felons committing the most severe offenses,
possessing criminal histories evincing a clear disregard for the laws and m orals of society, and evincing failure of past
efforts at rehab ilitation shall be give n first priority regar ding sentenc ing involving inc arceration . . . .”

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        However, we further note that even if a defendant is presumed to be a favorable candidate
for alternative sentencing under Tennessee Code Annotated § 40-35-102(6), the statutory
presumption of an alternative sentence may be overcome if
                (A) [c]onfinement is necessary to protect society by restraining a defendant
        who has a long history of criminal conduct;
                (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
        offense or confinement is particularly suited to provide an effective deterrent to
        others likely to commit similar offenses; or
                (C) [m]easures less restrictive than confinement have frequently or recently
        been applied unsuccessfully to the defendant . . . .
Id. § 40-35-103(1)(A)-(C).

        Because the Defendant was convicted of a Class C felony and because the length of his
sentence was five years, the Defendant is presumed to be a favorable candidate for alternative
sentencing. However, the State adequately rebutted that presumption in this case. The Defendant
has a lengthy criminal history dating back to 1983. The Defendant admitted in the probation report
that he uses drugs on a frequent and regular basis. Moreover, the Defendant has failed to comply
with previous sentences where he was granted alternative sentencing. Thus, the Defendant has failed
to establish his suitability for alternative sentencing.

       Accordingly, the judgment of the trial court is AFFIRMED.




                                                     ___________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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