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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs December 16, 2003 STATE OF TENNESSEE v. THOMAS MARION HARDIN
Direct Appeal from the Circuit Court for Marshall County Nos. 15334 & 15336 Charles Lee, Judge

No. M2003-01126-CCA-R3-CD - Filed February 27, 2004

Defendant, Thomas Marion Hardin, entered "open" pleas of guilty to two counts of sale of cocaine in an amount of 0.5 grams or more, and one count of conspiracy to sell cocaine in an amount of 0.5 grams or more. Following a sentencing hearing, the trial court sentenced Defendant to serve ten years as a Range I standard offender for each Class B felony conviction for sale of cocaine, and to four years to serve as a Range I standard offender to the Class C felony conviction for conspiracy. The sentences for the sale of cocaine convictions were ordered to be served concurrently with each other, and the conspiracy charge was ordered to be served consecutively to the convictions for sale of cocaine. Therefore, the effective sentence was fourteen years of confinement. In his sole issue on appeal, Defendant argues that the trial court erred by not ordering his sentence to be served in the Community Corrections Program, rather than by incarceration. After a review of the briefs of the parties and the entire record, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court Affirmed THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE OGLE, JJ., joined. Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Thomas Marion Hardin. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee. OPINION At the plea submission hearing, it was presented to the trial court that on August 18, 2002, Defendant was approached by a confidential informant of the 17th Judicial District Drug Task Force in Lewisburg, and Defendant sold 0.7 grams of a substance containing crack cocaine to the confidential informant. Again, on September 6, 2002, Defendant sold 0.6 grams of a substance

containing cocaine to a confidential informant of the Drug Task Force. At the time of the sentencing hearing, Defendant was forty-seven years old and had been married to his wife for almost five years. They did not have any children together, but Defendant had one daughter who was twenty-nine years old. Defendant admitted that he had been "delivering" cocaine for another individual during a time period that Defendant was addicted to crack cocaine. He had been addicted approximately two years. He obtained the crack cocaine that he personally used by delivering cocaine for Ronnie Thomison, a/k/a Ron Ron. If he had been purchasing the cocaine for himself on the street, it would have cost between $100.00 and $300.00. The amount of crack cocaine he obtained depended upon how many deliveries he made. His one prior felony conviction occurred when he was nineteen years old. However, he had numerous misdemeanor bad check convictions in 1999 and 2000. Defendant admitted that he wrote the bad checks in order to have money to obtain cocaine. Defendant finished the tenth grade in high school and dropped out. He had not yet obtained his GED, but was taking classes while incarcerated and awaiting sentencing. Defendant was admitted to a drug rehabilitation facility, Buffalo Valley, from June 1, 2000, to July 1, 2000. Shortly after his discharge from the facility, he began using cocaine again. At the time of his arrest on these charges, Defendant was employed as a painter, making approximately $8.00 per hour and working from thirty-five to forty hours per week. He had also worked for Krystal and at Ledford Employee Exchange. Defendant asserted that he was able to hold down a job and also use cocaine because he "had to." He gave the money he earned to his wife to help pay for rent and other necessities. Defendant acknowledged that what he had done was wrong and testified that he was sorry for his conduct. He stated that if he could be placed in Community Corrections, he would gladly submit to random drug screens and other restrictions. He was also willing to participate in more inpatient treatment. On cross-examination, Defendant admitted that he had sold or delivered crack cocaine approximately twenty-five times to ten different people. He clarified the statement that this was approximately twenty-five different days that he sold and delivered cocaine and testified that he had delivered seven or eight times in one day. The presentence report was admitted into evidence at the sentencing hearing. It shows that Defendant has six prior misdemeanor convictions for violations of the bad check law, one misdemeanor conviction for possession of marijuana, and two violations of probation, one from Lewisburg City Court and one from Marshall County General Sessions Court. These dispositions occurred from 1999 through 2003. The presentence report reflects that he was convicted of first degree burglary, a felony, in Indiana, in 1975 and was incarcerated for that offense. In his brief, Defendant asserts that the trial court erred by not placing him on Community Corrections. He requests this Court, in the alternative to placing him on Community Corrections, to decrease the sentences imposed. However, he does not challenge the applicability of any of the enhancement factors and does not otherwise argue as to why the sentences should be reduced. -2-

Therefore, we will address only the issue of whether the trial court erred by not placing Defendant in the Community Corrections Program rather than ordering him to serve his sentences by incarceration. The trial court, in determining that Defendant should serve his sentences by incarceration, found that Defendant has an addiction which Defendant claims cannot be overcome, that Defendant has been in the criminal justice system "on numerous occasions," and has frequently and recently been subjected to measures less restrictive than confinement, which have been unsuccessfully applied to him. The trial court also found that Defendant had not furthered his education after dropping out of high school. Despite the fact that a Lewisburg detective, with thirteen years experience in law enforcement (with several of those years being in narcotics investigation), testified about the increasing number of unlawful acts pertaining to crack cocaine in Marshall County, the trial court did not find that deterrence was a basis for denying Community Corrections. The trial court found the following enhancement factors under Tennessee Code Annotated section 40-35-114: (2) the defendant has a history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range, (9) the defendant has a history of unwillingness to abide by conditions of release into the community, (11) the defendant had no hesitation about committing a crime when the risk to human life was high, and (17) the crime was committed under circumstances under which the potential for bodily injury to a victim was great. See Tenn. Code Ann.

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