        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                February 8, 2011 Session

           STATE OF TENNESSEE v. WALTER ODELL SAVAGE

                 Appeal from the Criminal Court for Putnam County
                      No. 09-0846     David Patterson, Judge


                  No. M2010-02040-CCA-R3-CD - Filed May 4, 2011




The Defendant, Walter Odell Savage, pled guilty to three counts of sale of . 5 grams or more
of cocaine, a Class B felony. See Tenn. Code Ann. § 39-17-417. The trial court sentenced
the defendant to an effective ten-year sentence to be served in confinement. In this appeal
as of right, the Defendant contends that the trial court erred by ordering his sentence served
in confinement. Following our review, we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

David Neal Brady, District Public Defender; and Jennifer Kollstedt, Assistant Public
Defender, for the appellant, Walter Odell Savage.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Randall A. York, District Attorney General; and Douglas E. Crawford,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The Defendant was indicted on three counts of sale of .5 grams or more of cocaine,
three counts of delivery of .5 grams or more of cocaine, and two counts of violating the Drug
Free School Zone Act. See Tenn. Code Ann. §§ 39-17-417, -432. On July 20, 2010, the
Defendant pled guilty to three counts of sale of .5 grams or more of cocaine in exchange for
an effective ten-year sentence with the manner of service to be determined by the trial court.
At the guilty plea hearing, the State presented the following stipulated facts: that on three
occasions at a predetermined location the Defendant sold cocaine to an undercover officer
accompanied by a confidential informant, that one of these sales occurred within a thousand
feet of an elementary school, and that the amount of cocaine sold on all three occasions was
.5 grams or more.

       On September 20, 2010, a sentencing hearing was held to determine the manner of
service for the Defendant’s sentence. At the hearing, Board of Probation and Parole Officer
Andrew Coffey testified that he compiled the Defendant’s presentence report. According to
the report, the Defendant had previously been convicted of driving under the influence (DUI)
in 2002 and reckless driving in 1995 and 1996. Officer Coffey testified that the Defendant
was placed on probation for the 2002 DUI and that in March 2003, a probation violation
warrant was issued against the Defendant. The violation warrant alleged that the Defendant
had tested positive for cocaine. The Defendant’s probation was partially revoked in April
2003, he was ordered to serve 45 days in jail, and his probation was extended for one year.


        The Defendant informed Officer Coffey that “he has long had a problem with
cocaine” that first started when he was 30. However, Officer Coffey testified that he
administered a drug screen on the Defendant and that the results were negative for all drugs
tested. The Defendant told Officer Coffey that he had retired from “the telephone company”
after 27 years and since then has worked at various jobs off and on. The Defendant
explained to Officer Coffey that he sold cocaine to an undercover officer three times because
he was “[t]rying to help a ten year friend get dope.”

       The Defendant testified that he had “a drug problem” going back to 1998. According
to the Defendant, since 1998 he had “been to a lot of [Alcoholics Anonymous] classes” at
“different places.” The Defendant explained to the trial court that he took care of his mother,
who had a heart problem, and drove her to her doctor’s appointment. The Defendant also
explained that his wife did not have a driver’s license because she had failed to pay fines for
various driving offenses; therefore, he was needed to provide her transportation as well. The
Defendant told the trial court that he would undergo any drug treatment ordered by the court
and that he would comply with the conditions of any alternative sentence. On cross-
examination, the Defendant admitted that all three of the drug sales occurred within one
month, but he denied having any other “customers” besides his “ten year friend.”

       In ordering that the Defendant’s sentence be served in confinement, the trial court
stated that it considered the evidence at the guilty plea and sentencing hearings, the
circumstance of the offenses, the Defendant’s criminal and social history, the Defendant’s
amenability to correction, the deterrent value to the accused and others, as well as the
considerations listed in Tennessee Code Annotated section 40-35-103(1). In concluding that
the sentence should be served in confinement, the trial court stated

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              The difficulty that [the Defendant] has today is his number of counts
       that he’s pled guilty to and the seriousness of each of the offenses to which he
       has pled . . . .

               This court takes into consideration that it is not much older than [the
       Defendant]. It certainly wouldn’t look forward to serving a ten year sentence
       at this point, even as a range one offender. But the court is very much
       impressed with the three occasions, the amount that’s being sold and the fact
       that [the Defendant] has been revoked in the past while on probation for the
       use of cocaine in making its determination that the ten year sentence should be
       served. That is the order of the court and those are the findings of the court.

                                         ANALYSIS

        The Defendant contends that the trial court erred by ordering his sentence to be served
in confinement. The Defendant argues that the trial court failed to make “a proper record as
to the [Tennessee Code Annotated section] 40-35-103 factors used to justify a sentence of
confinement.” The Defendant further contends that confinement is inappropriate in this case
because he has a relatively minor criminal record, his offenses were not in any way excessive
or exaggerated, there was no evidence that confinement in this case is particular suited to
provide an effective deterrence to others, he has only had one probation violation, and he “is
a good candidate for rehabilitation.” The State responds that the trial court considered all the
factors it was required to consider in determining whether the Defendant’s sentence should
be served in confinement. The State further responds that the Defendant pled guilty to three
Class B felonies which all occurred within the span of one month, the Defendant has a
criminal history with three prior convictions and a probation violation, and the Defendant
admittedly has an addiction to cocaine. The State concludes that all these facts justify
confinement in this case.

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the
Sentencing Commission Comments to this section note, on appeal the burden is 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 to the factors and principles that are relevant to
sentencing under the 1989 Sentencing Act, the court 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); see also State v. Carter, 254 S.W.3d 335 (Tenn. 2008).

       The Defendant was eligible for probation because the “sentence actually imposed

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upon [him was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(b). Thus, the trial
court was required to automatically consider probation as a sentencing option. Tenn. Code
Ann. § 40-35-303(b). However, no criminal defendant is automatically entitled to probation
as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The defendant has
the burden of establishing his or her suitability for full probation. See State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant must demonstrate that probation
will “subserve the ends of justice and the best interests of both the public and the defendant.”
Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Additionally, the Defendant was not to be
considered a favorable candidate for alternative sentencing under the Sentencing Act because
he was convicted of three Class B felonies. Tenn. Code Ann. § 40-35-102(6) (limiting the
consideration as a favorable candidate for alternative sentencing to those convicted of Class
C, D, or E felonies and “in the absence of evidence to the contrary”).

       In determining any defendant’s suitability for alternative sentencing, the trial court
should consider whether

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). Additionally, the trial court may also consider the
circumstances of the offense; the defendant’s criminal record, social history, and present
condition; the deterrent effect upon the defendant; and the best interests of the defendant and
the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). The trial court shall also
consider the mitigating and enhancing factors as set forth in Tennessee Code Annotated
sections 40-35-113 and -114. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938
S.W.2d 435, 438 (Tenn. Crim. App. 1996). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative sentence
would be appropriate. Tenn. Code. Ann. § 40-35-103(5); Boston, 938 S.W.2d 435 at 438.
Ultimately, in sentencing a defendant, a trial court should impose a sentence that is “no
greater than that deserved for the offense committed” and is “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. §
40-35-103(2), (4).

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        We conclude that the trial court did not err in ordering the Defendant to serve his
sentence in confinement. First we note that the Defendant was not initially considered to be
a favorable candidate for alternative sentencing because he was convicted of three Class B
felonies. Furthermore, the record reflects that the trial court properly considered all of the
statutorily mandated factors in making its decision. While the Defendant did not have a
significant criminal history, the trial court gave great weight to the fact that the Defendant
sold a significant amount of cocaine in a relatively short period of time. The trial court also
gave great weight to the fact that the Defendant had previously had his probation revoked for
cocaine use. Additionally, the Defendant testified that he had been a habitual cocaine user
for over a decade, despite his repeated failed attempts at rehabilitation. Accordingly, we
affirm the judgments of the trial court.

                                       CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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