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STATE OF TENNESSEE Appellee
vs.
DERRICK L. KELLY Appellant.
 
Case:
C.C.A. No. 02C01-9211-CR-00253
 
Location:
COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
 
Attorneys:
For APPELLANT: (On Appeal) Walker Gwinn Asst. Public Defender 201 Poplar Suite 2-01 Memphis TN 38103. (At Trial) Sherry Brown Asst. Public Defender 201 Poplar - Second Floor Memphis TN 38103.
For APPELLEE: Charles W. Burson Counsel General & Reporter. Rose Mary Drake Counsel for the State 450 James Robertson Parkway Nashville TN 37243-0485. Lorraine Craig Asst. Dist. Counsel General 201 Poplar - Third Floor Memphis TN 38103.
 
Court:
BEASLEY DWYER WHITE
 
Author:
The Hon. Justice James C. Beasley
 

The defendant pled guilty to selling cocaine. After an evidentiary hearing on May 4 1992 he was sentenced to confinement for 7.2 years with all but 180 days suspended. In this appeal as of right the defendant contends that he should receive immediate probation or in the alternative that the period of incarceration should be reduced.

When a defendant challenges the length range or manner of service of a sentence this Court must conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. This duty extends to sentencing issues concerning probation. T.C.A. SEC. 40-35-401(d).

In conducting a de novo review of the sentence Court must consider (1) any evidence received at the trial and sentencing hearing (2) the presentence report (3) the principles of sentencing and the arguments of Counsel relative to sentencing alternatives (4) the nature and characteristics of the offense (5) any mitigating or enhancing factors (6) any statement made by the defendant in his own behalf and (7) the defendant's potential for rehabilitation or treatment. T.C.A. SEC. (s) 40-35-102 -103 -210. See also State v. Kear 809 S.W.2d 197 198 (Tenn. Crim. App. 1991).

When considering the issue of probation the trial court as well as this Court considers the nature and circumstances of the offense the defendant's criminal record the defendant's social history the defendant's present mental and physical condition the determent effect upon other criminal activity and the likelihood that probation will serve both the public and defendant's best interests. Stiller v. State 516 S.W.2d 617 621 (Tenn. 1974): State v. Bell 832 S.W.2d 583 593 (Tenn. Crim. App. 1991).

The defendant twenty-six years old at the time of his sentence graduated from Whitehaven High School in 1983. He later completed a course at a truck driving school. Since his conviction for reckless driving in 1990 for which he received a thirty-day suspended sentence the defendant has been unable to work as a truck driver. During early 1992 he did construction work and later obtained employment as a warehouseman. He is single but is the father of three children each by a different woman. The Juvenile Court of Shelby County has ordered the defendant to pay $200.00 a month toward support of his two Memphis children. It appears from the presentence report that he was $2000.00 behind in these payments at the time of the hearing.

The defendant testified that he had been a "sometimes user" of drugs but now could pass any drug test because he had recently joined the church and committed himself back to the Lord. The defendant's father testified that his son had stopped hanging around with his old friends had started going to church had changed his life around and was unlikely to sell or use cocaine again.

At the conclusion of the hearing the trial Court sentenced the defendant to the minimum of 7.2 years as a mitigated offender with all but 180 days suspended. His stated reason for requiring this jail time was the untruthfulness of the defendant.

The defendant was jointly indicted with James Jackson for selling cocaine. At the trial of that cause the defendant entered a plea of guilty and was subsequently called as a witness for the co-defendant. The trial Court who had also presided at the trial of the co-defendant found the defendant's testimony to be totally unbelievable. He also questioned the truthfulness of the defendants version of what was said to or in the presence of the female prosecutor on the morning of the sentencing hearing.

In explaining to the defendant why he was imposing some jail time the trial Court stated:

In my judgment this is a situation where as Ms. Craig pointed out you were caught red-handed. You had no real defense if you went to trial. The officers had their hands on you with the cocaine that you had handed to the officer. There was no defense. But there was an opportunity to testify on behalf of your friend and see if he could be exonerated and in fact he was found not guilty. Whether it was because of your testimony or because of some problems in the State's proof that cropped up during the course of the trial or because of an excellent job done by Mr. Edwards who represented your co-defendant or because of some other unknown reason the jury found your co-defendant not guilty.

That does not diminish in my mind at all the totally unbelievable version that you gave of what transpired that night. It simply makes no sense. It defies logic and reason and common sense for one to believe that what you say happened actually happened that night. I might add -- and I don't -- I'm not for the record taking into account or holding against Mr. Kelly the substance of what was said in the elevators. But I am just as an aside I think that's indicative of how Mr. Kelly still has a hard time recognizing and dealing with the truth. I don't think that Ms. Craig would have had any reason to have made up what was apparently said today on the elevator. It's apparent to me that she felt sufficiently concerned and/or intimidated and/or frightened by what was said on that elevator to have called it the attention of Ms. Brown and of this Court. And I'm satisfied that a lot more was said than simply is that the prosecutor? Oh why yes that's the prosecutor. End of conversation.

And so that's simply indicative of how I think you still have difficulty dealing with the truth when asked about a situation. I think you had difficulty telling the truth in the trial and today with regard to your version of what happened. And I think that is a valid sentencing consideration. One's willingness to admit the truth one's -- how that reflects on remorse on rehabilitation on the likelihood of committing an offense of this sort again. So I'm going to require that you go to the penal farm and serve a period of a hundred and eighty days. At the completion of that you'll be on probation for seven years. You'll have random drug screens administered during that period of probation.

The truthfulness of a defendant or lack thereof is a permissible factor for a trial Court to consider when determining the issue of probation. See State v. Neeley 678 S.W.2d 48 49 (Tenn. 1984); State v. Smith 735 S.W.2d 859 863-64 (Tenn. Crim App. 1987). Probation may be denied on this ground. State v. Dykes 803 S.W.2d 250 259-60 (Tenn. Crim. App. 1990).

In this case the trial Court elected not to deny probation in toto but rather to suspend all but 180 days of the 7.2 year sentence. From our review of this entire record we find no basis on which to disturb that decision. The defendant has failed to meet the burden of showing that he is entitled to the privilege of a completely suspended sentence or that the period of incarceration should be reduced.

The judgment of the trial court is affirmed.

JAMES C. BEASLEY SPECIAL Court

CONCUR: ROBERT K. DWYER Court PENNY J. WHITE Court (concurring in result only)