         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                      APRIL 1998 SESSION
                                              FILED
                                                 May 12, 1998

                                              Cecil Crowson, Jr.
STATE OF TENNESSEE,            )              Appellate C ourt Clerk
                               )    NO. 02C01-9709-CR-00369
      Appellee,                )
                               )    SHELBY COUNTY
VS.                            )
                               )    HON. ARTHUR T. BENNETT,
GLENN RAY,                     )    JUDGE
                               )
      Appellant.               )    (Denial of Alternative Sentencing)



FOR THE APPELLANT:                  FOR THE APPELLEE:

WILLIAM D. MASSEY                   JOHN KNOX WALKUP
3074 East Street                    Attorney General and Reporter
Memphis, TN 38128
                                    CLINTON J. MORGAN
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    PERRY S. HAYES
                                    Assistant District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



         The defendant, Glenn Ray, was convicted in the Shelby County Criminal

Court upon guilty pleas to one (1) count of possession with the intent to sell cocaine

under 0.5 grams and one (1) count of the sale of cocaine under 0.5 grams. He was

sentenced as a Range I offender to concurrent terms of three (3) years and fined

$2,000 for each offense. The trial court denied alternative sentencing. On appeal,

defendant challenges the trial court’s denial of alternative sentencing. We affirm the

judgment of the trial court.



                                           I



         Defendant was indicted for the sale of and possessing with the intent to sell

or deliver over 0.5 grams of cocaine, all Class B felonies. These offenses occurred

in June 1995. In a subsequent indictment, defendant was charged with the sale of

and possession with the intent to sell or deliver under 0.5 grams of cocaine, all

Class C felonies. These offenses occurred in October 1995 while defendant was

released on bond for the June offenses.

         Pursuant to a negotiated plea agreement, defendant pled guilty to one (1)

count of possession with the intent to sell under 0.5 grams of cocaine and one (1)

count of the sale of cocaine under 0.5 grams. He received an agreed sentence of

concurrent terms of three (3) years and fined $2,000 for each count with the issue

of alternative sentencing to be determined by the trial court.

         As to the June offense, defendant testified at the sentencing hearing that he

“found” the drugs on the ground near some apartments. Defendant maintained that

he was not selling drugs. However, when the trial court explained that accepting

money in exchange for drugs meant “selling,” defendant conceded that he had been

selling drugs. The following exchange occurred between defendant and the trial

court:




                                           2
THE WITNESS:         I had never sold --
               been selling dope. I just --

THE COURT:             Oh, you didn’t get
               any money for it -- you
               didn’t ask for money --
               selling means you give
               them the dope, and they
               tried to give you the money.
               That’s what selling -- like
               you buy a loaf of bread. If
               you get a loaf of bread from
               Kroger’s, you’ve got to give
               them some money, and
               they give you the bread --
               let you get the bread.
               That’s selling bread at
               Kroger.

                     All right.      Do you
               understand?

THE WITNESS:            Yes, sir.

THE COURT:           What      were yo u
               doing? Selling rocks?

THE WITNESS:            No, sir. I don’t sell
               rocks.

THE COURT:            You don’t sell rocks.
               Okay. What were you --
               what -- I thought they were
               offering you money for the
               rocks -- did they?

THE WITNESS:            Yes, sir.

THE COURT:            Did you give them
               the rocks?

THE WITNESS:            Yes, sir.

THE COURT:           Well, what is that?
               What did you call that?

THE WITNESS:           Well, I mean that’s
               selling.

THE COURT:             That’s what I call it to
               [sic]. Why did you say
               you’re not selling . . . didn’t
               sell the rock?

THE WITNESS:           I had got a hold [of
               it], and I just sold it, you
               know.

THE COURT:            Sold it. Everybody
               that sells gets a hold of it.


                              3
                            The fact that you claim you
                            -- you found a rock of it
                            doesn’t mean that selling it
                            is no longer selling it. . .

       Defendant testified that he was employed full time and would abide by any

conditions of alternative sentencing. He claimed that he never sold drugs, except

for these two instances. He stated that he was remorseful for his actions and would

not be involved in any further criminal activity. However, he acknowledged that the

October 1995 offense occurred while he was released on bond for the June 1995

offense. Furthermore, he admitted that he had given the police a false address

when he was arrested in June.

       Defendant had a prior criminal record consisting of four (4) misdemeanors.

The earliest of these offenses, malicious mischief, was reduced from a third degree

burglary charge.

       The trial court specifically found that defendant was untruthful in his

testimony, which reflected on defendant’s potential for rehabilitation. The court

noted that the second offense occurred while defendant was released on bond for

the first offense. The trial court further found that granting alternative sentencing

would depreciate the seriousness of the offense. Therefore, the trial court denied

alternative sentencing.



                                         II



       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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 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).

       Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. An especially mitigated or standard

                                         4
offender convicted of a Class C, D or E felony 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).

      In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169.

      A court may also consider the mitigating and enhancing factors set forth in

Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103

considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d

435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the

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); State

v. Boston, 938 S.W.2d at 438.

      Individualized punishment is the essence of alternative sentencing. State v.

Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). Sentencing must be

determined on a case-by-case basis, tailoring each sentence to that particular

defendant based upon the facts of that case and the circumstances of that

defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).



                                         III



      The trial court found, and we agree, that defendant’s testimony was less than

credible. The defendant's lack of credibility is an appropriate consideration and

reflects on a defendant's potential for rehabilitation. State v. Dowdy, 894 S.W.2d

at 306. We also agree that the need to avoid depreciating the seriousness of the

offenses weighs against alternative sentencing. Defendant has a prior criminal



                                         5
history and committed the second drug offense while he was on bail for the June

offense.   A trial court may properly consider these enhancement factors in

determining if incarceration is appropriate. See State v. Boston, 938 S.W.2d at

438; Tenn. Code Ann. §§ 40-35-210(b)(5), 40-35-114(1) and (13)(A). We also note

that measures less restrictive than confinement have proven unsuccessful for this

defendant.

       The trial court considered the appropriate principles of sentencing and found

that defendant was not a good candidate for alternative sentencing. These findings

are entitled to a presumption of correctness. Accordingly, the judgment of the trial

court is affirmed.




                                                JOE G. RILEY, JUDGE



CONCUR:




DAVID G. HAYES, JUDGE




WILLIAM M. BARKER, JUDGE




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