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

           STATE OF TENNESSEE v. ALVETO MARTEL HIGGINS

                   Direct Appeal from the Circuit Court for Hardin County
                           No. 8131    C. Creed McGinley, Judge



                  No. W2002-02498-CCA-R3-CD - Filed December 31, 2003


The defendant entered open guilty pleas to three counts of the sale of less than 0.5 grams of cocaine,
possession of over 0.5 grams of cocaine with intent to sell or deliver, simple possession of
marijuana, and driving on a revoked license. The trial court gave the defendant an effective sentence
of nine years to be served in the Tennessee Department of Correction. The defendant contends that
the trial court erred in denying him alternative sentencing. The judgments of the trial court are
affirmed.

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

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

Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Alveto Martel Higgins.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
G. Robert Radford, District Attorney General; John W. Overton, Chief Deputy District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant, Alveto Martel Higgins, was indicted for three counts of selling less than 0.5
grams of cocaine, a Schedule II controlled substance (Class C felony); three counts of delivery of less
than 0.5 grams of cocaine (Class C felony); one count of possession of more than 0.5 grams of
cocaine with intent to manufacture, deliver, or sell (Class B felony); one count of simple possession
of marijuana, a Schedule VI controlled substance (Class A misdemeanor); and one count of driving
on a revoked, cancelled, or suspended license (Class B misdemeanor). The three counts of delivery
of cocaine were dismissed, and the defendant entered open guilty pleas to all of the other charges.
Following a sentencing hearing, the trial court sentenced the defendant to fours years for each
conviction of selling less than 0.5 grams of cocaine; nine years for the conviction of possessing over
0.5 grams of cocaine with intent to sell or deliver; eleven months and twenty-nine days for the
conviction for simple possession of marijuana; and thirty days for driving on a revoked license. All
sentences were ordered to be served concurrently, for an effective sentence of nine years. The
defendant timely appealed, contending that the trial court erred in denying alternative sentencing.
The judgments of the trial court are affirmed.

                                                 Facts

       The arrest warrants for the defendant reveal that the defendant sold crack cocaine to a
confidential informant twice on November 13, 2000, and once on November 20, 2000. On January
10, 2001, the defendant was stopped and arrested for driving on a revoked license. A subsequent
search uncovered one bag of marijuana on his person, another bag of marijuana in the vehicle, and
a bag of cocaine weighing over six grams in the vehicle.

                                               Analysis

        The defendant contends on appeal that the trial court erred in denying him any form of
alternative sentencing. 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).

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:
        (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
        presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
        alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
        [e]vidence and information offered by the parties on the enhancement and mitigating
        factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
        to make in the defendant’s own behalf about sentencing.

        In determining if incarceration is appropriate, a trial court should 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 Tennessee Code
Annotated sections 40-35-113 and 114 as they are relevant to the section 40-35-103 considerations.


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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);
Boston, 938 S.W.2d at 438.

        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). A defendant sentenced to
eight years or less, with certain exceptions, is eligible for probation. Tenn. Code Ann. § 40-35-
303(a).

        There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). In summary, 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).

        It is apparent from the record that the trial court considered the appropriate sentencing
principles and all relevant facts and circumstances. Therefore, our review is de novo with a
presumption of correctness. The trial court ordered the defendant’s sentence to be served in the
Tennessee Department of Correction. The defendant concedes that he is not entitled to the
presumption that he is a favorable candidate for alternative sentencing, because he was convicted
of a Class B felony. Additionally, the defendant was sentenced to more than eight years, so he is not
eligible for probation. The trial court properly found that the defendant had a history of criminal
convictions or criminal behavior in addition to those necessary to establish the range. Tenn. Code
Ann. § 40-35-114(2). The presentence report indicates that the defendant has a prior conviction for
assault. He also stated that he used “weed all the time” and used cocaine on a couple of occasions.
The trial court properly found that there were no applicable mitigating factors. See id. § 40-35-113.
The trial court increased each felony sentence for the felonies based on the enhancement factor by
one year over the minimum. The weight given to each enhancement or mitigating factor is in the
discretion of the trial court. State v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002). The
record supports the trial court’s denial of alternative sentencing. This argument is without merit.

                                             Conclusion

       Based on the foregoing and the record as a whole, the judgments of the trial court are
affirmed.

                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE


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