             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                FILED
                          DECEMBER 1998 SESSION
                                                            March 18, 1999

                                                         Cecil W. Crowson
STATE OF TENNESSEE,          )                          Appellate Court Clerk
                             )
             Appellee,       )    No. 01C01-9801-CR-00046
                             )
                             )    Davidson County
v.                           )
                             )    Honorable Seth Norman, Judge
                             )
KENNETH B. WILLIAMS,         )    (Sale of less than one-half gram of
                             )    cocaine)
                             )
             Appellant.      )


For the Appellant:                For the Appellee:

Thomas H. Miller                  John Knox Walkup
P.O. Box 681662                   Attorney General of Tennessee
Franklin, TN 37068-1662                  and
                                  Georgia Blythe Felner
                                  Assistant Attorney General of Tennessee
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Victor S. Johnson, III
                                  District Attorney General
                                          and
                                  Jon Seaborg
                                  Assistant District Attorney General
                                  Washington Square, Ste. 500
                                  222 2nd Ave. N.
                                  Nashville, TN 37201-1649




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Kenneth B. Williams, appeals as of right following his

conviction upon a guilty plea to the sale of less than one-half gram of cocaine, a Class

C felony. The defendant agreed to a three-year sentence, with the manner of service to

be determined by the trial court following a sentencing hearing. Following the hearing,

the trial court ordered the defendant to serve the three years in the custody of the

Davidson County Jail. The defendant now contends that the trial court erred by not

ordering an alternative to incarceration. We affirm the decision of the trial court.



              The defendant entered his guilty plea on March 28, 1996, and a

sentencing hearing was scheduled for May 1, 1996. The defendant failed to appear at

the hearing, and a capias was issued. The defendant was not apprehended until

November 15, 1997, after an officer stopped him for driving with a broken headlight and

discovered the capias. The sentencing hearing was held on January 21, 1998.



              At the hearing, the defendant explained that he did not show up for the

first sentencing hearing because he made an honest mistake. He said he thought the

hearing was scheduled for May 10, not May 1, because there was an “@” symbol that

looked like a “0" following the “1" on the slip of paper with the court date on it. He said

he learned of his mistake on May 8 when he called his attorney to reassure him that he

would be in court on May 10. He testified that he had completed two years of college

and had an eight-year-old son whom he saw at least once or twice each week and for

whom he paid child support of fifty or sixty dollars per week. He testified that he

attended treatment for his cocaine addiction and that he had not used cocaine since his

arrest.




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             On cross-examination, the defendant admitted that when he spoke with

his attorney on May 8, the attorney told him to surrender to the police. He said he did

not turn himself in because he knew his bond was high, and he could not afford to

make bond. He said he attended Narcotics Anonymous meetings a couple of times

each week for about three months following his arrest. He said he also ended his

previous “associations.” He admitted that in February 1995, he pled guilty to passing a

worthless check and received six months on probation. He also admitted that five

months later, he was arrested for theft and pled guilty. Although the presentence report

indicated that his probation for the worthless check conviction was revoked, the

defendant initially testified that he knew nothing about the revoked probation. However,

he later agreed that it probably was revoked because of the arrest for theft.



             Linda Head, the office manager for Top of the Line, testified that the

defendant worked as a banquet server for about four years and that he earned ten

dollars per hour. She said the defendant was a very good, professional employee, and

he would have a job with Top of the Line if not sentenced to incarceration.



             Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As

the Sentencing Commission Comments to this section note, the burden is now on the

defendant to show that the sentence is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately

supported in the record, and gave due consideration and proper weight to the factors

and principles that are relevant to sentencing under the 1989 Sentencing Act, we may

not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).




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              However, “the presumption of correctness which accompanies the trial

court's action 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). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).


              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and 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, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,

823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



              As a standard, Range I offender convicted of a Class C felony, the

defendant is presumed to be a favorable candidate for alternative sentencing options.

T.C.A. § 40-35-102(6). However, this presumption may rebutted upon a showing that,

among other things, “[m]easures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant.” T.C.A. § 40-35-103(1)(C). We

conclude that the trial court’s sentence of incarceration is justified based upon the

defendant’s lack of success with less restrictive measures as evidenced by his




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probation violation. The judgment of conviction is affirmed.



                                                ________________________________
                                                Joseph M. Tipton, Judge

CONCUR:



_________________________
John H. Peay, Judge



_________________________
Norma McGee Ogle, Judge




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