               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                                        FILED
                                             AT KNOXVILLE
                                                                                       October 18, 1999

                                        JUNE SESSION, 1999                            Cecil Crowson, Jr.
                                                                                     Appellate Court Clerk




STATE OF TENNESSEE,                          *
                                             *        No. 03C01-9805-CR-00178
        Appellee,                            *
                                             *        GREENE COUNTY
vs.                                          *
                                             *        Hon. James E. Beckner, Judge
KENYETTA FIELDS,                             *
                                             *        (Facilitation of a Felony)
        Appellant.                           *


                       CONCURRING IN PART, DISSENTING IN PART


        I am unable to join with the majority in concluding that a penitentiary sentence

is warranted in this case. The appellant was convicted of a class C felony; he does

not have a criminal history evincing clear disregard for the law; nor have past efforts

at rehabilitation failed. Accordingly, he is clearly entitled to the presumption of an

alternative sentence. Tenn. Code Ann. 40-35-102(5),(6). Moreover, I find no proof

in the record to support any Section 103 consideration requisite for the imposition of

a sentence of confinement. At the sentencing hearing, the State presented no

proof, relying exclusively on the presentence report.1 Although the presumption of

an alternative sentence may be rebutted by "evidence to the contrary," I find the

proof fails to do so in this case.



         The trial court ordered total confinement of the appellant based upon (1) his

prior record, (2) appellant's admitted use of cocaine, (3) employment record that

"doesn't appear to be good," (4) deterrence, and (5) to avoid depreciating the

seriousness of the offense. I agree with the majority that these findings were

insufficient to warrant total incarceration. The appellant's criminal history consists of


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           It is questionable whether the presentence report in this case even minimally meets the
requirements of T enn. Code Ann. § 40 -35-207 (1990). The inform ation, where provided, is cursory
at best an d is altogeth er void in oth er areas , e.g. inform ation relatin g to th e app ellant 's fam ily
history, children, if any, physical/mental history, employment history, etc.
two misdemeanor and two traffic offenses. The record does not support a less than

good employment history. The record shows unemployment at the time of

sentencing with previous employment. No other proof on this issue was presented.

With reference to factors four (4) and five (5), the appellate courts of this state have

repeatedly held that, absent specific proof, deterrence and seriousness of the

offense are insufficient grounds to deny an otherwise eligible offender's entitlement

to an alternative sentence. See State v. Ashby, 823 S.W.2d 166, 170-171 (Tenn.

1991); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.), perm. to appeal

denied, (Tenn. 1995); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App.

1991). Finally, I find the trial court's application of the appellant's admitted use of

cocaine contained in the presentence report misplaced. The presentence report

was never intended to serve the purpose of gathering incriminating evidence from

an offender in order to justify denial of an alternative sentence. Indeed,

presentence information is essential in tailoring a sentencing alternative best suited

to fit the offender. The offender is encouraged to participate in the preparation of

the presentence report in order that information provided by the offender may be

utilized by the sentencing court in arriving at an individualized sentence under

sentencing guidelines. To utilize the offender's statements within the report to deny

an alternative sentence is counter-productive in that it discourages truthfulness and

is inconsistent with the purposes of the presentence report.



       Although the trial court did not so find, the majority finds that the

circumstances of this crime (facilitating sale of cocaine) are so violent, horrifying or

shocking as to require total confinement in order to avoid depreciating the

seriousness of the offense. See generally, State v. Hartley, 818 S.W.2d 370, 374-

75 (Tenn. Crim. App. 1991). This conclusion is based upon the fact that the drug

transaction occurred within 200 yards of a school. The purpose of the Drug-Free

School Zone Act, see Tenn. Code Ann. § 39-17-432(a) (1996 Supp.), is to provide

Tennessee students an environment in which they can learn absent the dangers


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accompanying drug activity. The Act seeks to secure this goal by creating

enhanced and mandatory minimum sentences for offenses occurring in a drug-free

school zone to serve as a deterrent to such unacceptable conduct. Id. The Act

does not indicate that drug offenses committed in close proximity to a school are

inherently more serious than all other drug offenses. In the present case, the sale

was not made to a minor, nor was a minor involved in any way in the transaction.

Moreover, the undisputed proof in the record reveals that the transaction occurred

after 5:00 p.m., well after the school's dismissal time for that day. Without more,

there is no evidence that the mere proximity to the school made the offense

"reprehensible and offensive" as compared to other drug transactions. Although I

would not conclude that consideration of the situs of the crime would never be

relevant in determining the "seriousness of the offense," I do not believe that the

proximity of the drug transaction to the school in the case before this court is

sufficient, by itself, to necessitate a sentence of total confinement.



       Thus, for the reasons expressed above, I conclude that the State has failed

to present sufficient proof to overcome the presumption that a sentence other than

confinement would result in successful rehabilitation of the appellant. Under the

facts of this record, the appellant and society would best be served by granting a

sentence other than total confinement. Accordingly, I would remand this case to the

trial court for a determination of which sentencing alternative would best serve the

needs of the appellant and society.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




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