        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 8, 2011

            STATE OF TENNESSEE v. ANTHONY M. RELIFORD

            Direct Appeal from the Circuit Court for Montgomery County
                     No. 41000446      Michael R. Jones, Judge


              No. M2010-01693-CCA-R3-CD - Filed September 26, 2011


The defendant, Anthony M. Reliford, pled guilty to domestic assault and aggravated assault,
receiving concurrent sentences of four years and eleven months and twenty-nine days to be
served in confinement. The court further ordered that the defendant pay restitution to the
victim in the amount of $830.19. On appeal, the defendant contends that the trial court erred
by: (1) imposing a fully incarcerative sentence and (2) improperly ordering restitution.
Following review of the record, we affirm the sentences of incarceration but remand for
reconsideration of restitution in light of the defendant’s ability to pay.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
                                  Part; Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Roger E. Nell, District Public Defender, and Crystal Myers, Assistant Public Defender, for
the appellant, Anthony M. Reliford.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and Robert J. Nash,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                   Procedural History

      The relevant facts underlying the defendant’s convictions, as recited at the guilty plea
hearing, are as follows:
              On February third[,] 2010 the Defendant and a Ms. Burgenworth
       (phonetic spelling) were in a relationship; they were at 711 Spees Drive; an
       argument ensued; [the Defendant] and Ms. Brugenworth got into a physical
       confrontation whereby the Defendant slammed her to the ground. Her
       statement is he began - - proceeded to hit her, causing some damage to her
       thumb or hand, I believe it turns out to be broken; and that’s the domestic
       assault part; February third count two.

               On February fourth, the next day, 2010[,] another argument ensued at
       the same residence whereby the Defendant picked up a plate and threw it and
       hit Ms. Brugenworth in the face; again threw her to the ground, began hitting
       her, stomping on her head causing a severe laceration on the top of her skull
       resulting in quite a lot of blood loss, which there are pictures of that damage.
       Same time while she was on the ground he lifted her sweatshirt that she was
       wearing up over her face, and her words are, began to suffocate her with that.

              And those [are] the facts that underlie the domestic assault in count two
       and the aggravated assault in count three. She was taken to the emergency
       room; medical records indicate that she did in deed [sic] suffer laceration,
       severe blood loss, other damage to her head and broken bones in her right
       hand.

        Based upon these facts, a Montgomery County grand jury returned an indictment
against the defendant. He subsequently entered open guilty pleas to one count of domestic
assault and one count of aggravated assault. A sentencing hearing was then held in the
circuit court of Montgomery County.

        At the hearing, no witnesses were called to testify. The State, however, introduced
a copy of the presentence report as an exhibit. The defendant objected to the report’s
admission on hearsay grounds, and the trial court overruled the objection. The defendant did
not contest the information contained in the report. After reviewing the required
considerations, the trial court applied one enhancement factor based upon the defendant’s
history of criminal convictions and found one mitigating factor based on the defendant’s
employment at the time of the offense. The presentence report reflected that the defendant
had nine prior convictions, six of which resulted in sentences of incarceration. Based upon
its findings, the court imposed concurrent sentences of four years and eleven months and
twenty-nine days.

       Next, the court addressed the issue of the manner of service of the imposed sentences.
In determining that the sentences should be served in confinement, the court relied upon the

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need for deterrence, the seriousness of the offenses, and that measures less restrictive than
confinement had previously failed. The trial court also ordered the defendant to pay
restitution in the amount of $830.19. This amount was determined from attachments to the
presentence report noting the amount of the victim’s medical bills not covered by insurance.
The defendant has now timely appealed the sentencing determinations made by the trial
court.

                                          Analysis

I. Sentencing

       The defendant contends that the trial court erred in ordering a sentence of
incarceration as opposed to an alternative sentence. When reviewing sentencing issues, the
appellate court shall conduct a de novo review. This review shall be conducted with a
presumption that the determinations made by the court from which the appeal is taken are
correct. T.C.A. § 40-35-401(d) (2010). “[T]he presumption of correctness ‘is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-
45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial
court applies inappropriate mitigating and/or enhancement factors or otherwise fails to follow
the Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton,
854 S.W.2d 116, 123 (Tenn. Crim. App. 1992)). The defendant bears “the burden of
showing that the sentence is improper.” Ashby, 823 S.W.2d at 169.

        In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing; (b) the presentence report; (c) the
principles of sentencing; (d) the arguments of counsel relative to sentencing alternatives; (e)
the nature and characteristics of the offense; (f) any mitigating or enhancement factors; (g)
any statistical information provided by the Administrative Office of the Courts as to
Tennessee sentencing practices for similar offenses; (h) any statements made by the accused
in his own behalf; and (I) the accused’s potential or lack of potential for rehabilitation or
treatment. T.C.A. §§ 40-35-103, -210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001).

      With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) (2010) provides as follows:

       In recognition that state prison capacities and the funds to build and maintain
       them are limited, convicted felons committing the most severe offenses,
       possessing criminal histories evincing a clear disregard for the laws and morals

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       of society and evincing failure of past efforts at rehabilitation shall be given
       first priority regarding sentencing involving incarceration . . .

Under the revised Tennessee sentencing scheme, a defendant is no longer presumed to be a
favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347 (citing T.C.A. §
40-35-102(6)). Instead, a defendant not within “the parameters of subdivision (5) [of
Tennessee Code Annotated section 40-35-102], and who is an especially mitigated or
standard offender convicted of a Class C, D or E felony, should be considered as a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary.” Id.
Additionally, we note that a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider” them. T.C.A. § 40-35-102(6).

       A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a) (2010). A
defendant is not, however, automatically entitled to probation as a matter of law. The burden
is upon the defendant to show that he is a suitable candidate for probation. Id. at 303(b); see
also State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the defendant “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. 1995)
(quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a
case-by-case analysis. Id. Factors to be considered include the circumstances surrounding
the offense, the defendant’s criminal record, the defendant’s social history and present
condition, the need for deterrence, and the best interest of the defendant and the public.
Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation would unduly
depreciate the seriousness of the offense. State v. Davis, 940 S.W.2d 558, 560 (Tenn. 1997);
Bingham, 910 S.W.2d at 456.

      A trial court may deny alternative sentencing and sentence a defendant to confinement
based on any one of the following considerations:

       (A)    Confinement is necessary to protect society by restraining a defendant
              who has a long history of criminal conduct;

       (B)    Confinement is necessary to avoid depreciating the seriousness of the
              offense or confinement is particularly suited to provide an effective
              deterrence to others likely to commit similar offenses; or

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       (C)    Measures less restrictive than confinement have frequently or recently
              been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1). In choosing among possible sentencing alternatives, the trial court
should also consider “[t]he potential or lack of potential for the rehabilitation or treatment.”
T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). The
trial court may consider a defendant’s lack of truthfulness and lack of candor as they relate
to the potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999); see also Dowdy, 894 S.W.2d at 305-06.

       In imposing a sentence of confinement, the trial court made the following remarks on
the record:

              Now, under 40-35-103, to implement the purpose of this chapter, the
       Court should consider - - not consider, the Court is bound by the law that the
       sentencing involving confinement should be based on the following
       consideration:

             (1) confinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct. In looking at his
       misdemeanor convictions, it is a long history, however, the Court [does not]
       normally use misdemeanors as a long history. This Court does not, though the
       Supreme Court certainly authorizes Trial Courts to do so.

              (2) confinement is necessary to avoid depreciating the seriousness of
       the offense. This was a very, very serious offense, and confinement is
       particularly suited to provide an effective deterrence to others. I [do not] know
       how many domestic assault we have on today’s docket, but we have them on
       every day’s docket. This is certainly one of the most severe, less some of the -
       - a death, in this matter.

              (3) measures less restrictive than confinement have frequently or
       recently been applied unsuccessfully. They are not recent, but they are - - there
       has been a violation. Let me look at that again. But I believe that was on the
       same event date in terms of what the original offenses were, that’s drug
       paraphernalia and marijuana possession when probation was revoked in ‘03.
       And none of the others show that probation has been revoked except in the
       driving under the influence in ’07, which brings that up to much more current.
       So that it has been frequently and fairly recently revoked.



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               I do believe that this is a case that is so severe, so serious that it needs -
       - this has to be a TDOC sentence. . . .

       The defendant contends on appeal that the trial court erred by imposing a fully
incarcerative sentence. He finds fault with the trial court’s reliance upon each of the three
statutory considerations, those being deterrence, the seriousness of the offense, and that
measures less restrictive than confinement had failed. We disagree and conclude that the
court properly considered the required factors and sufficiently articulated on the record its
basis for ordering a sentence of incarceration.

       Initially, we note that a finding of any of the three enumerated factors set forth in
Tennessee Code Annotated 40-35-103 is sufficient to justify imposing a sentence of
incarceration. From our reading of the trial court’s findings, it is clear that the court
considered and found each of the three factors applicable. Although not relying upon the
defendant’s criminal record to support an incarcerative sentence, the court noted that the
defendant’s history of criminal convictions was long. We agree with the court’s statements
and note that the extensive history of serious misdemeanor convictions, i.e., D.U.I., driving
on revoked license, criminal trespass, assault, possession of controlled substance, and
possession of drug paraphernalia, would have justified the sentence.

        Nonetheless, the court specifically relied upon factors (2) and (3) as set forth in the
statute. The court clearly stated that it considered the offense to be very serious and that it
felt that incarceration in this case would serve as a deterrent to others. The defendant
contends that the deterrence issue is “an age-old debate without resolution” and, further, that
the record does not support the court’s determination with regard to the seriousness of the
offense. With regard to deterrence, we agree that there is no proof regarding the issue
presented. Moreover, we note that our supreme court has repeatedly held that “the record
must contain proof of the need for deterrence before a defendant, who is otherwise eligible
for probation or other alternative sentence, may be incarcerated.” State v. Hooper, 29 S.W.3d
1, 9 (Tenn. 2000). Although this statute “does not require proof that incarceration ‘will’ or
‘should’ deter others from committing similar crimes,” the record must demonstrate that
“confinement [is] ‘particularly suited’ to provide a deterrent effect.” Id. After concluding
that the “trial court should be given considerable latitude in determining whether a need for
deterrence exists and whether incarceration appropriately addresses that need,” our supreme
court ruled that a reviewing court

       will presume that a trial court’s decision to incarcerate a defendant based on
       a need for deterrence is correct so long as any reasonable person looking at the
       entire record could conclude that (1) a need to deter similar crimes is present
       in the particular community, jurisdiction, or in the state as a whole, and (2)

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       incarceration of the defendant may rationally serve as a deterrent to others
       similarly situated and likely to commit similar crimes.

Id. While we do not dispute that the State failed to introduce evidence regarding deterrence
in this case, we note that Hooper addresses the issue of whether deterrence alone may
support a denial of alternative sentencing and articulates the criteria for such circumstances.
See State v. Trotter, 201 S.W.3d 651 (Tenn. 2006). In this case, the trial court also based its
denial on other grounds, including the seriousness of the offense and the need to avoid
depreciating the seriousness of the offense.

        We are likewise unable to agree with the defendant’s contention that the seriousness
of the offense did not justify a fully incarcerative sentence. The defendant brutally attacked
the victim over the course of two days. On each occasion, the defendant engaged in a
physical attack upon the victim and forced her to the ground where he continued to attack
her. As a result of these attacks, the victim suffered from a broken hand, severe blood loss,
and a severe laceration which required staples. The trial court noted it was one of the most
serious cases he had seen, short of murder, and we agree with those findings.

        Finally, the defendant also challenges the court’s finding that measures less restrictive
than confinement had failed previously. His argument centers around his contention that the
“information in the presentence report is hardly conclusive, and is not reliable enough to
support the trial court’s conclusion.” This argument is misplaced. This court has
consistently held that courts may rely upon the presentence report in making sentencing
determinations. State v. Adams, 45 S.W.3d 46, 59 (Tenn. Crim. App. 2000). The report in
this case established the defendant’s nine prior convictions, six of which resulted in
incarceration. It further indicated that he was released to unsupervised probation. Based
upon its review of the record, the trial court correctly determined that measures less
restrictive than confinement had been bestowed upon the defendant and that the defendant
had failed to comply with the conditions. The defendant is not entitled to relief.

II. Restitution

        The defendant next contends that the trial court improperly ordered restitution. He
first argues that the trial court failed to properly ascertain the amount of the loss to the victim
because the decision was based upon bills which the court did not verify. The defendant also
contends that the court failed to consider his ability to pay when determining the amount of
restitution.

       When the defendant challenges the restitution amount ordered by the trial court, this
court will utilize a de novo standard of review with a presumption that the trial court’s ruling

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was correct. T.C.A. § 40-35-401(d) (2010); State v. Johnson, 968 S.W.2d 883, 884 (Tenn.
Crim. App. 1997). The purpose of ordering restitution is to compensate the victim and to
punish and rehabilitate the defendant. Johnson, 968 S.W.2d at 885. “In determining the
amount and method of payment or other restitution, the court shall consider the financial
resources and future ability of the defendant to pay or perform.” T.C.A. § 40-35-304(d), (g)
(2006) (emphasis added); State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001).
After all, “[a]n order of restitution which obviously cannot be fulfilled serves no purpose for
the appellant or the victim.” Johnson, 968 S.W.2d at 886. There is “no formula or method
for determining restitution,” but the amount must be “reasonable.” Id. The amount “must be
based upon the victim’s pecuniary loss and the financial condition and obligations of the
defendant; and the amount ordered to be paid does not have to equal or mirror the victim’s
precise pecuniary loss.” State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994).
Pecuniary loss is defined as “(1) All special damages, but not general damages, as
substantiated by evidence in the record or as agreed to by the defendant; and (2) Reasonable
out-of-pocket expenses incurred by the victim resulting from the filing of charges or
cooperating in the investigation and prosecution of the offense.” T.C.A. § 40-35-304(e).

       The trial court, in imposing restitution in this case, stated:

       There is restitution. I don’t have a calculator. I am looking at the presentence
       report, [it is] two hundred and twenty-eight dollars and twenty-two cents, one
       sixty six seventy one, one fifty seven ninety eight, thirty five eighty four, seven
       sixty five, one twenty seven ninety four, one zero five eighty-five. Those are
       the amounts after whatever insurance or TennCare, this lady had. The bills are
       there and they will have the name and address on them of those [whom]
       restitution is ordered.

        As stated, the defendant first contends that the trial court failed to properly ascertain
the amount of loss to the victim by relying only upon attachments to the presentence report.
There is no dispute in the case that the trial court determined the amount of restitution solely
from the victim’s medical bills which had been attached to the presentence report. According
to the defendant, the attachments were not sufficient to establish the amount because there
was no way to ascertain “whether those bills reflect charges for services related to this
assault, whether those bills are accurate, and whether those bills fully reflect amounts paid
by insurance.” While we do agree that perhaps it would have been better to have more
information, such as the testimony of the victim, we cannot conclude that it was error for the
trial court to rely upon the attachments to the presentence report to establish the amount of
loss suffered by the victim as a result of the defendant’s actions.

       However, in reaching its determination that this was the proper amount of restitution,

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we cannot conclude that the trial court in any way considered the defendant’s ability to pay.
The brief comments made by the trial court in no way reflect any consideration of the
defendant’s financial situation. The State counters that the trial court considered the
defendant’s financial resources and his ability to pay, arguing that: (1) the court considered
the presentence report, which included information about the defendant’s education; and (2)
the court considered the argument of the defendant’s counsel that the defendant is able to
“work and get a job and pay restitution.” The State’s contentions are misplaced. As pointed
out by the defendant, his past job history and education are relevant to his future ability to
pay only if he is permitted to obtain employment. By ordering that the sentence be served
in confinement, his ability to obtain employment became irrelevant. We see nothing in the
record to support a finding that the trial court properly weighed and considered the
defendant’s ability to pay the ordered restitution. As such, remand is necessary. On remand,
the trial court must consider the defendant’s financial ability to pay before determining the
proper amount and method of payment of restitution.

        As an aside, we note that a discrepancy exists between the total of the amounts listed
by the trial court on the record and that reflected on the judgment. The sum of the
enumerated figures is $830.19, while the judgment reflects $840.19. In cases such as this,
when a discrepancy exists between a transcript of court proceedings and a judgment order,
the transcript controls. State v. Tamela T. Scott, No. M2006-02067-CCA-R3-CD (Tenn.
Crim. App. at Nashville, Sept. 17, 2008). If, following the remand hearing, the trial court
determines that the original amount is, in fact, the proper amount and method of payment of
restitution, a corrected judgment form reflecting the accurate total should be entered.

                                      CONCLUSION

       Based upon the foregoing, the decision of the trial court imposing sentences of
confinement is affirmed. The case is remanded, however, for a hearing to determine the
proper amount and method of payment of restitution in light of the defendant’s ability to pay.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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