IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED JULY SESSION, 1998 August 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710-CC-00469 ) Appellee, ) ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS, JR. MIKE RAMSEY, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF BLOUNT COUNTY

FOR THE APPELLANT: FOR THE APPELLEE: JULIE A. MAR TIN JOHN KNOX WALKUP P.O. Box 426 Attorney General and Reporter Knoxville, TN 37901-0426 GEORGIA BLYTHE FELNER MACK GARNER Assistant Attorney General District Public Defender 425 5th Avenu e North High Street Nashville, TN 37243 Maryville, TN 37804 MIKE FLYNN District Attorney General PHILIP MORTON Assistant District Attorney General Court Street Maryville, TN 37804

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defen dant, Mike Ramsey, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted, upon his pleas of guilty, of two counts of delivery of marijuana, Class E felonies, and one count of possession of cocaine for the purpose of resale, a Class B felony. 1 The agreed sentences for the two Class E felonies were two years as a Range I standard offender. The agreed sentence for the Class B felony was eight years as a Range I standard offende r. It was furthe r agreed that the tw o-year sentences were to be served concurrent with each other but consecutive to the eight-year sentence, for an agreed effective sentence of ten years. The manner of service of the sentences was left to the discretion of the trial judge. After conducting a sentencing hearing, the trial judge ordered that the Defendant serve seven months in the county jail for the Class E felon ies, followed by a co nsecutive term of five months in the county jail for the Class B felony, for a total of twelve months in the co unty jail. The balance of the effective ten-year sentence was ordered to be served in the community corrections progra m. Th e Def enda nt app eals from the trial judge’s o rder that tw elve mo nths of th e senten ces b e serve d in confinem ent. W e affirm the judgm ent of the tria l court.

The marijuana charges resulted from the Defen dant’s sa le of mar ijuana to a confid ential in forma nt. W hile the marijuana charges were pending, the Defendant was arrested on a charge of possessing more than .5 grams of cocaine. The indictments state that the marijuana s ales occurred on Janua ry 9

Tenn. Code Ann. § 39-17-417.

-2- and January 16, 1996, and that the cocaine possession took place on August 26, 1996. On appeal, the Defendant argues that the trial judge abused his discretion by requirin g the Defendant to serve an additional five months for the cocaine conviction.

When an accused challenges the length, range, or manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial co urt are co rrect. Tenn. Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 19 91).

In conducting a de novo review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the princip les of sen tencing a nd argu ments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103, -210; State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

The presentence report reflects that the Defendant was twenty-eight years old, single, and had no children. H is forma l educatio n ende d with the e leventh grade but the Defendant stated that he earne d his GED . His employm ent history is fair. He lost his most recent job as an electrician’s assistant due to his arrest -3- and legal problems. He had been terminated from his prior employment because he was suspected of smoking marijuana while on his brea k and subs eque ntly refused to take a d rug test.

The Defendant’s criminal history is quite extensive. He has been arrested appro ximate ly eighteen times. Among his convictions are several traffic offenses (including two convictions for driving on a suspe nded license ), one pub lic intoxication, one casual exchange of marijuana, one sale of marijuana, two thefts, and several other unspecified misdemeanors. On the dates of the marijuana sales, the Defendant was on probation from prior convictions. At the time the Defendant was charged with possessing the cocaine, his probation had expired but he was on bond pending resolution of the marijuana charges.

The Defendant testified concerning his long history of drug and alcohol abuse. He started experimenting with marijuana when he was about thirteen years old. In add ition to alcoh ol, he “we nt to pills like valium s, and then event ually . . . started cocaine use.” He reached the point that he was experiencing memory loss and blackouts. He said that he sold m arijuana to support his own drug habit. The Defendant admitted that he started using cocaine fairly heavily following his arrest on the charges of selling marijuana.

The Defendant testified at the sentencing hearing that he had been in jail for about five months, and ?after being in jail this long and they’ve been overcrowding us, and for fear of going to prison, I intend to walk a straight line and sh ow the c ourt I can d o right.”

-4- Concerning the amo unt of tim e the D efend ant wa s to se rve in confinem ent, the judge stated, He is being given an alternative sentence, but still the — giv ing him the longer time in custody, I think, a re all the sam e thing s that w ould have justified sen ding him to the pen itentiary. That is, it’s necessa ry to protect society by restraining a person who has a long history of criminal cond uct, ne cess ary to a void de precia ting the seriousness of the offe nse, a nd thin gs less restrictiv e than confinem ent have been used recently without success. All of those things apply to this set of facts that we have here.

W e believe that the Defendant’s lengthy criminal record, the failure of past attemp ts to rehabilitate him, and his continued disregard for the law s of this State justify the length of confinem ent ordered b y the trial judge. Trial judges are tradition ally vested with broad discretion in sentencing matters . From this record, we are unable to conclude that the trial judge erred or abused his discretion.

The judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE

-5-