           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON               FILED
                             JUNE 1997 SESSION             July 2, 1997

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   )     C.C.A. No. 02C01-9607-CR-00232
      Appellee,                    )
                                   )     SHELBY COUNTY
VS.                                )
                                   )     HON. ARTHUR T. BENNETT,
                                   )     JUDGE
MICHAEL A. BOYLAND,                )
                                   )     (Sentencing)
      Appellant.                   )


FOR THE APPELLANT:                       FOR THE APPELLEE:

CRAIG HALL (at trial)                    JOHN KNOX WALKUP
100 North Main, Ste. 1928                Attorney General & Reporter
Memphis, TN 38103
                                         SARAH M. BRANCH
BRETT B. STEIN (on appeal)               Assistant Attorney General
100 North Main, Ste. 3102                450 James Robertson Parkway
Memphis, TN 38103                        Nashville, Tennessee 37243-0493

                                         WILLIAM L. GIBBONS
                                         District Attorney General

                                         STEPHEN HALL
                                         Assistant District Attorney General
                                         201 Poplar Ave. Ste. 301
                                         Memphis, Tennessee 38103-1947




OPINION FILED: __________________



AFFIRMED



JOE G. RILEY,
JUDGE




                                 OPINION
       The defendant, Michael A. Boyland, pled guilty to possession of cocaine over

0.5 grams with intent to sell, a Class B felony. He was sentenced as a Range I

Standard Offender to nine years in the Department of Correction and fined $2,000.

The sole issue for review is whether the trial court erred in denying alternative

sentencing. We AFFIRM the judgment of the trial court.



                                        FACTS

       Defendant pled guilty to possession of cocaine over 0.5 grams with intent to

sell and agreed to a nine-year sentence; however, he petitioned for alternative

sentencing. At the sentencing hearing, defendant testified regarding the

circumstances of the offense. In 1992, he returned to Tennessee from Illinois and

did not have a job. In less than three months, he was involved with the “wrong

crowd” and began selling drugs. On or about November 9, 1994, the Shelby County

Police Department raided defendant’s home and found over twenty-six (26) grams of

cocaine and $7,800 in cash. Defendant’s wife and daughter resided with him at the

time of the arrest.

       Defendant testified that subsequent to his arrest, he had gained employment

with Brewer Landscaping, gotten married, and had another child. Although his wife

is employed, defendant stated that his income is necessary to sustain his family.

       Defendant’s testimony also revealed he had one prior drug-related conviction

for possession of marijuana. He was sentenced to eleven (11) months and twenty-

nine (29) days and received probation.

       The state did not offer any proof.

       Based on the testimony, the trial court found that defendant did not appreciate

the seriousness of the offense and further stressed the need for deterrence in

denying defendant’s petition for alternative sentencing.




                                            I.


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       The Community Corrections Act establishes a program of community-based

alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann. §

40-36-103. A defendant is eligible for participation in a community corrections

program if the defendant satisfies several minimum eligibility criteria set forth at

Tenn. Code Ann. § 40-36-106(a)(1)-(7). The Act does not provide that all offenders

who meet these requirements are entitled to such relief. State v. Grandberry, 803

S.W.2d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn. Code Ann. § 40-36-

106(d) provides that the eligibility criteria shall be interpreted as minimum standards

to guide the court's determination of eligibility of offenders under the Act.

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

encouraged to use alternatives to incarceration. 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 options in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6). Obviously, Class A and B felons have

no such presumption.

       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 166, 169 (Tenn. 1991).

       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.


                                            3
                                             II.

       The defendant in this case was convicted of a Class B felony and is not

afforded a presumption in favor of alternative sentencing. He is also ineligible for

probation under Tenn. Code Ann. § 40-35-303(a) since his sentence was over eight

years. The proof showed that defendant had a prior drug-related offense. His prior

alternative sentence for possession of drugs did not deter him from further illegal

drug activity. The instant drug conviction involved over twenty-six (26) grams of

cocaine, and the police found over $7,800 in cash at the defendant’s home.

Obviously, the defendant was involved in substantial drug sales.

       The trial judge expressed concern with defendant’s attitude toward the

seriousness of the offense and the amount of cocaine and cash money involved.

He determined that incarceration was necessary to avoid depreciating the

seriousness of the offense and to serve as a deterrent. See State v. Dykes, 803

S.W.2d 250, 260 (Tenn. Crim. App. 1990). The trial judge properly considered

appropriate sentencing principles, and his findings are entitled to a presumption of

correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The trial court did

not err in denying alternative sentencing.

       The judgment of the trial court is AFFIRMED.



                                                        ________________________
                                                        JOE G. RILEY, JUDGE


CONCUR:


___________________________
PAUL G. SUMMERS, JUDGE



____________________________
DAVID H. WELLES, JUDGE




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