         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   October 7, 2003 Session

            STATE OF TENNESSEE v. WILLIAM EDWARD CRICK

                   Direct Appeal from the Circuit Court for Henry County
                            No. 13383    Julian P. Guinn, Judge



                  No. W2003-00146-CCA-R3-CD - Filed December 18, 2003


The defendant appeals from the trial court’s denial of an alternative sentence. The defendant pled
guilty to a Class E felony, possession of a Schedule VI controlled substance with intent to
manufacture, deliver, or sell. The trial court denied the defendant’s request for an alternative
sentence and imposed a two-year sentence in the special needs facility of the Tennessee Department
of Correction. We affirm the sentence imposed by the trial court, but remand for correction of the
judgment to reflect a guilty plea rather than a jury verdict.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                       Remanded for Entry of Corrected Judgment

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR. and NORMA MCGEE OGLE , JJ., joined.

Jim L. Fields, Paris, Tennessee, for the appellant, William Edward Crick.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant, William Edward Crick, entered an open plea of guilty to Possession of
Schedule VI controlled substance with intent to manufacture, deliver, or sell (a Class E felony), with
the length and manner of service to be determined by the trial court. The defendant timely appeals,
contending the trial court erred in denying him an alternative sentence. We affirm the sentence
imposed by the trial court, but remand for correction of the judgment to reflect a guilty plea rather
than a jury verdict.
                                                       Facts

        The Assistant District Attorney General stated the facts that made up the defendant’s charge,
as follows:

       As to indictment 13383 on the 6th day of May 2002 Thomas Tharpe in the 24th
       Judicial District issued a search warrant at Mr. Crick’s residence here in Paris, Henry
       County, Tennessee where they found 400 grams of plant material subsequently
       described as marijuana, found other material, scales intending to manufacture, deliver
       or sell. This represents the facts which underlie the circumstances in this case.

        At the sentencing hearing, the State and the defendant stipulated that the defendant was a
Range I, standard offender.1 The State recommended a maximum period of 100 days of
incarceration. The defendant introduced as an exhibit a list of physicians treating the defendant and
a copy of the defendant’s current medications. The presentence report was acknowledged as correct,
and no corrections or additions were offered.

         The defendant testified, but the content was very limited. The defendant requested the trial
court to take into consideration the need for him to sit with his mother, at least when his younger
sister runs errands. The defendant acknowledged he had smoked marijuana since 1970. The trial
court’s findings are as follows:

               The minimum sentence in this case is a term of one year. There are grounds
       to enhance under the provisions of 40-35-114, Subparagraph 1 and Subparagraph 8.
       In particular, there are seven prior instances of where this man has been entrusted on
       some form of release and committed a crime while out.

              This Court does enhance by a term of one year. There are no grounds to
       mitigate. You are sentenced to a term of 2 years and designated a Range I standard
       offender.

               This Court must consider alternative means of service and finds it to be
       inappropriate in this case for the following reasons: the circumstances of this offense,
       this man’s criminal record, the physical and mental condition of this Defendant. He’s
       been using as a crutch his health as long as I’ve known him and a study of his record
       reveals he uses that to escape incarceration at every stage. Maybe if he had been
       jailed when he was 10, years younger we might have avoided this today. Suspension
       or alternative means of service would not be in the best interest of justice nor the best
       interest of the public and it would not be in the best interest of this Defendant. I’ve
       considered the deterrent effect, I am of the opinion that confinement is necessary to



       1
           The defendant’s prior record reveals that he is a Range II, multiple offender.

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        avoid deprecating the seriousness of the offense and that measures less restrictive
        have frequently been applied to this man, all unsuccessfully.

                 The law says he can stand on his present bond. You need to make an entry on
        his judgment that when he’s committed he should be committed to the special needs
        facility.

       The defendant timely appeals, contending the trial court erred in denying him an alternative
sentence.

                                               Analysis

        An especially mitigated or standard offender convicted of a Class C, D, or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). However, this presumption is not available to a
defendant who commits the most severe offenses, has a criminal history showing clear disregard for
the laws and morals of society, and has failed past efforts at rehabilitation . Id. § 40-35-102(5); State
v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The court should also examine the defendant’s
potential for rehabilitation or lack thereof when considering whether alternative sentencing is
appropriate. Tenn. Code Ann. § 40-35-103(5). Sentencing issues must be decided in light of the
unique facts and circumstances of each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn.
Crim. App. 1987).

        This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

         It is clear from the record that the trial court considered the sentencing principles and all
relevant facts and circumstances, and, therefore, our review is de novo with a presumption of
correctness. The two major reasons found by the trial court to deny an alternative sentence is clear
in this record. The defendant, at age 47, has an extensive criminal record. Beginning at age 24, the
defendant was convicted of simple assault, possession of a weapon with the intent to go armed, and
driving while intoxicated, all misdemeanors. At age 25, he was convicted of felony selling drugs
(Methaqualine) and received a four-year sentence. From age 41 to the present, the defendant has
been convicted of nine misdemeanors and one felony Schedule II drug charge. Perhaps the most
revealing fact that an alternative sentence would not result in the successful rehabilitation of this
defendant is that seven of the prior offenses committed by the defendant were committed while on
bond or suspended sentence status.




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                                              Conclusion

        Accordingly, we affirm the sentence imposed by the trial court. However, we remand to the
trial court for correction of the judgment to reflect the entry of a plea of guilty by this defendant, not
a jury verdict.




                                                         ___________________________________
                                                           JOHN EVERETT WILLIAMS, JUDGE




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