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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs January 7, 2003 STATE OF TENNESSEE v. JESSE WAYNE BAKER
Direct Appeal from the Circuit Court for Carroll County No. 01CR-1668 C. Creed McGinley, Judge

No. W2002-00692-CCA-R3-CD - Filed February 26, 2003

The defendant, Jesse Wayne Baker, pled guilty to introduction of a controlled substance into a penal institution, a Class C felony. The trial court sentenced the defendant to four years to be served consecutively with a previous sentence. On appeal, the defendant argues that his sentence is excessive and the trial court erred in denying alternative sentencing and in imposing consecutive sentencing. Based upon our review, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT WILLIAMS, JJ., joined. Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Jesse Wayne Baker. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS Previously, the defendant had pled guilty on January 8, 2001, to possession of cocaine, possession of marijuana, possession of drug paraphernalia, and possession of explosive components. For each offense, he was sentenced to concurrent terms of eleven months and twenty-nine days, suspended after the service of sixty days, with the balance to be served on probation. The offense which is the basis for the present appeal occurred when the defendant reported to the Carroll County Jail on January 12, 2001, for service of his earlier sentence. During a strip search of the defendant, a plastic bag containing 3.4 grams of plant material identified as marijuana, a Schedule VI controlled substance, was found in his rectal area. The defendant pled guilty to introduction of a controlled substance into a penal institution and was sentenced, as a Range I, standard offender, to four years

to be served consecutively with the previous sentence. The trial court denied alternative sentencing as to this later offense: The presumptive minimum would be three years, and then the Court considers appropriate enhancing factors, which the first one, obviously, would be criminal behavior, convictions in addition to those necessary to establish the range. Several charges that arose out of this Court. In case 1582 that I just finished revoking his bail on as a result of this new conviction. All those matters were felony charges that were subsequently reduced to misdemeanor charges, to his ultimate benefit. In addition to that, the enhancing factor of, essentially, that he violated his probation by new criminal behavior would be appropriate due to the conviction in this case, as well. This is a matter that mitigating would be appropriate as far as not threatening serious bodily harm. However, consider[ing] the enhancing, giving them appropriate weight, considering the mitigating, it appears that an appropriate sentence would be two [sic] years. Presumptively, he would be eligible for alternative sentencing unless the evidence is to the contrary, which is in this case. He earlier was placed on probation, was unable to conform his conduct to the requirements of the law, got several convictions. Considering the record as a whole, the Court finds that he is not an appropriate candidate for alternative sentencing. ANALYSIS I. Sentencing The defendant argues that his four-year sentence is excessive and that the trial court erred in sentencing him by enhancing the sentence, by not applying mitigating factors, in denying alternative sentencing, and in imposing consecutive sentencing. We will review these claims. A. Standard of Review When an accused challenges the length and manner of service of a sentence, it is the duty of this court to conduct a de novo review on the record with a presumption that "the determinations -2-

made by the court from which the appeal is taken are correct." Tenn. Code Ann.

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