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State v. Hackert1/15/2003
Factual Background
On March 23th and April 11th of 2000, the Appellant and a female accomplice sold approximately one-fourth of a pound of marijuana to a confidential informant, who was working for the city of Franklin Police Department. Based upon these drug transactions, the Appellant was indicted for two counts of sale or delivery of marijuana, class E felonies. A capias was issued following the Appellant's indictment and, upon service of the capias at his residence, drug paraphernalia and a small amount of marijuana were discovered. This seizure led to the additional charges of possession of drug paraphernalia and simple possession.
Pursuant to a negotiated plea agreement, the Appellant pled guilty to all four drug charges. The plea agreement provided that the Appellant was to receive concurrent two-year sentences for the two felony sale or delivery of marijuana charges and concurrent eleven-month, twenty-nine day sentences for the two misdemeanor charges of possession of drug paraphernalia and simple possession. The two misdemeanor and two felony charges would be served consecutively. The manner and service of the sentences were to be determined by the trial court. Following a sentencing hearing, the trial court denied the Appellant's request for total probation, instead ordering that he serve fifty days confinement for the felony convictions and fifty days confinement for the misdemeanor convictions. Thus, the Appellant received an effective sentence of two years, eleven months and twenty-nine days, of which one hundred days were to be served in confinement.
Analysis
When an appellant complains of his sentence on appeal, this court conducts a de novo review coupled with a presumption that the trial court's sentencing determinations are correct. Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However, this presumption is conditioned upon an affirmative showing that the trial court considered the relevant sentencing principles and all pertinent facts and circumstances. Ashby, 823 S.W.2d at 169. After review, we afford the trial court's sentencing determination the presumption of correctness. Regardless of whether the presumption of correctness is applied, the burden of showing the impropriety of the sentence is on the appealing party. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. In determining whether an appellant has carried the burden, this court should consider the evidence received at the trial and at the sentencing hearing, the presentence report, the principles of sentencing, the arguments of counsel, the nature and characteristics of the offenses, existing mitigating and enhancing factors, statements made by the offender, and the potential for rehabilitation. Tenn. Code Ann. § 40-35-210 (Supp. 2002); Ashby, 823 S.W.2d at 169.
Because the Appellant was convicted as a Range I offender for class E felonies, he was considered a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (1997). In consideration of this fact, the trial court sentenced the Appellant to a form of alternative sentencing; split confinement followed by a period of probation. Tenn. Code Ann. § 40-35-104(c)(5). However, the Appellant argues that this was an inappropriate sentence. Specifically, he asserts that he should have been granted full probation.
To meet the burden of establishing suitability for total probation, an appellant must demonstrate that probation will "subserve the ends of justice and the best interest of both the public and the defendant." State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995), overruled in part by
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