IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 14, 1999
MAY 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE * C.C.A. # 03C01-9809-CC-00328
Appellee, * SEVIER COUNTY
VS. * Honorable Richard R. Vance, Judge
RONNIE MASON, * (Selling Marijuana--Two counts;
Conspiracy--One count)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD C. MILLER PAUL G. SUMMERS
Public Defender Attorney General & Reporter
P. O. Box 416
Dandridge, TN 37725 ELLEN H. POLLACK
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
AL C. SCHMUTZER, JR.
District Attorney General
MICHAEL ANTONIO GALLEGOS
Assistant District Attorney
125 Court Avenue, Room 301-E
Sevierville, TN 37862
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Ronnie Mason, pleaded guilty to sale of over .5 ounces of
a Schedule VI controlled substance, a Class E felony, and to conspiracy to sell a
Schedule VI controlled substance, a Class A misdemeanor. He appeals from his
sentences of one year, split confinement with 20 days in the county jail, the
remainder in Community Correction on the Class E felony, and 11 months 29
days with 20 in the county jail on the Class A misdemeanor concurrent with the
felony. In this appeal, the defendant contends he should have received full
probation or judicial diversion. We AFFIRM the sentences imposed by the trial
court.
BACKGROUND
Detective Turner of the Sevier County Sheriff’s Department was working
in an undercover capacity with a confidential informant when they made contact
with Jimmy Ernest at the Star Tracks Arcade in Pigeon Forge, Tennessee.
Ernest arranged a meeting regarding a marijuana transaction with the defendant,
the informant, and Turner. The defendant stated that he could obtain one-
quarter pound of marijuana for $400 but told them that only he could go to his
source for the drugs. The defendant obtained the marijuana and delivered it
through Ernest to the officer. Laboratory analysis of the substance identified it
as 91.5 grams of marijuana.
A sentencing hearing was held on July 6, 1998, at which the defendant
testified as to the only witness. The trial court considered the defendant’s pre-
sentence report. At this hearing the state asked that the defendant be
sentenced to a two year sentence with split confinement. That being, 90 days in
jail and the remainder on supervised probation. The trial court found that the
offense occurred almost two years prior to sentencing, that the defendant had
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good and steady employment, had family responsibilities, had no prior criminal
record, and had done some good and positive things with his life. The trial court
found the defendant entitled to the presumptive minimum sentence of one year.
The trial court made several pertinent findings for granting an alternative
sentence in split confinement:
(1) The transaction began at an arcade frequented by youths;
(2) the defendant had established association with and access to a
major dealer;
(3) the defendant admitted to multiple instances of illegally using
controlled substances, including during his release under bond
for the instance offenses.
The defendant asked the trial court to reconsider its sentence and another
hearing was held on August 17, 1998. At this hearing, we note that the
defendant did not complain that the trial court did not properly consider all
appropriate sentencing factors. Rather, he argued that other people similarly
situated were given lighter sentences by another judge in a different diversion.
The trial judge stood steadfast to his prior sentence and refused to stipulate why
another judge sentenced the way he did. This trial judge felt that inappropriate
for consideration. We agree.
ANALYSIS
As his only issue for this appeal, the defendant queries whether the trial
court erred by imposing a sentence of 20 days of confinement and subsequent
Community Corrections. When an accused challenges the length of manner of
service of a sentence, this Court reviews the record de novo “with a presumption
that the determinations made by the court from which the appeal is taken are
correct.” Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is
contingent on the record indicating both the lower court’s reasons for arriving at a
sentencing decision and compliance with the statutory sentencing guidelines and
principles. See State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995). The
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appellant bears the burden of showing that the sentencing was improper. See
Tenn. Code Ann. § 40-35-401(d) sentencing comm’n comments; State v.
Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996). The following
considerations apply: (1) the evidence received at trial and at the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and
arguments as to the sentencing alternatives; (4) the nature and characteristics of
the criminal conduct involved; (5) any statutory mitigating or enhancement
factors; (6) any statement made by the accused on his own behalf; and (7) the
potential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim.
App. 1987).
The trial court denied deferment because of the defendant’s admitted
narcotic use and to avoid depreciating the seriousness of the offense. Further,
the trial court found the imposed punishment necessary to avoid depreciating the
severity of the offense, involving a commercial amount of an illegal substance.
That court applied the Range I presumptive minimum sentence, based on the
preceding enumerated factors, for the Class E felony offense. See Tenn. Code
Ann. § 40-35-112(a)(5).
The defendant’s offense does not invoke the standard established in prior
case law and subsequently codified, see Tenn. Code Ann. § 40-35-103(1)(B);
State v. Cleavor, 691 S.W.2d 541 (Tenn. 1985), in that it was not “especially
violent, horrifying, shocking, reprehensible, offensive, or otherwise of an
excessive or exaggerated degree,” Cleavor, 691 S.W.2d at 543. The defendant
is presumed “a favorable candidate for alternative sentencing in the absence of
evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); see also Tenn.
Code Ann. § 40-35-303(a). However, even if the defendant is entitled to a
presumption of alternative sentencing, he has the burden of establishing
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suitability for full probation. See State v. Bingham, 910 S.W.2d 448, 456-57
(Tenn. Crim. App. 1995). This burden entails a demonstration that full probation
will “subserve the ends of justice and the best interest of both the public and the
defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990).
The record shows that the defendant participated in local narcotics trade,
with access, exclusive among the codefendants, to a local source of significant
quantities of drugs. Significantly, the defendant’s admitted abuse of controlled
substances included that period of time on which he was on released from
custody. In fact, when the capias for the instant offenses were served, the
defendant possessed drug paraphernalia and was found guilty of that offense.
We conclude that the defendant’s drug involvement and criminal activities while
on bond constitute a valid reason for denying full probation in best interest of
both the public and the defendant. For the same reasons, we agree with the trial
court’s determination that judicial diversion was inappropriate. See State v.
Bingham.
________________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
_________________________________
ALAN E. GLENN, Judge
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