            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1998           FILED
                                                         October 12, 1998

                                                      Cecil Crowson, Jr.
STATE OF TENNESSEE,              )                       Appellate C ourt Clerk
                                 )   No. 03C01-9708-CC-00348
      Appellee                   )
                                 )   BLOUNT COUNTY
vs.                              )
                                 )   Hon. D. Kelly Thomas, Jr., Judge
MELISSA ANN SWEAT,               )
                                 )   (Sentencing)
      Appellant                  )




For the Appellant:                   For the Appellee:

Shawn G. Graham                      John Knox Walkup
Asst. District Public Defender       Attorney General and Reporter
419 High Street
Maryville, TN 37804                  Todd R. Kelley
                                     Assistant Attorney General
                                     Criminal Justice Division
Raymond Mack Garner                  425 Fifth Avenue North
District Public Defender             2d Floor, Cordell Hull Building
                                     Nashville, TN 37243-0493


                                     Michael L. Flynn
                                     District Attorney General

                                     Philip Morton
                                     Asst. District Attorney General
                                     363 Court Street
                                     Maryville, TN 37804




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                 OPINION



        The appellant, Melissa Ann Sweat, appeals the sentencing decision of the

Blount County Circuit Court following her April 1997 guilty plea to one count of

felony failure to appear. Specifically, she contends that the trial court erred by

ordering her to serve her eighteen month sentence in the Department of Correction

rather than granting her an alternative sentence.



         After a review of the record, we affirm the judgment of the trial court.



                                               Background



         In 1995, the appellant was convicted of facilitation of aggravated burglary and

facilitation of theft, in case C-8870.1 Pursuant to a plea agreement, the trial court

imposed an effective sentence of two years. 2 The appellant was ordered to serve

twenty-eight days of periodic weekend confinement followed by placement in the

Community Corrections program for the remainder of her sentence.



         On the specified report date of November 26, 1996, the appellant failed to

appear at the Blount County Jail for the purpose of serving her sentence in case C-

8870. As of this date, the appellant had completed seventeen days of her ordered

twenty-eight day period of confinement. As a result of this conduct, the appellant

was indicted for the offense of felony failure to appear. On April 29, 1997, the

appellant entered a guilty plea to the indicted charge. In May 1997, the trial court

revoked the appellant’s Community Corrections sentence in case C-8870 for failing


          1
            The appellant testified that these convictions arose from an event in 1994. She stated
that h er two co-d efen dan ts, Do nnie P arton and T imo thy Inm an, S r., bro ke in to he r neig hbo r’s
house . The ap pellant den ied any kn owledg e of her c o-defe ndants intent to burg larize the hou se.
However, she did admit that she assisted the two men after the crime occurred.

         2
        The p resente nce rep ort reflects an effec tive senten ce of two years for th ese off enses .
However, at the sentencing hearing, the appe llant testified that the court imposed an effective
sentence of two years, eleven months, and four days for these offenses.

                                                     2
to report to the jail and ordered confinement in the Department of Correction.3                                    As

part of her plea agreement in the instant case, the appellant agreed to an eighteen

month sentence as a range I offender with the sentence to run consecutive to the

sentence in case C-8870.4 Pursuant to the plea agreement, the manner of service

of this sentence, for “failure to appear,” was submitted to the trial court for its

determination.



         The sentencing hearing was held on August 5, 1997. The presentence report

reveals that the appellant was, at the time of the sentencing hearing, twenty-six

years old and the mother of an eight year old child. The appellant has a prior

criminal history consisting of facilitation of aggravated burglary, facilitation of theft of

property, and simple possession of marijuana. The appellant voluntarily admitted to

her Community Corrections officer that she had used illegal drugs while under this

sentencing option.



         The appellant presents a deteriorating medical history with a dismal

prognosis for recovery. She complains of cirrhosis of the liver, hepatitis C, asthma,

ITP bleeding disorder,5 and kidney diseases. She testified that she is not a

candidate for a liver transplant. She also indicated that she had made several

suicide attempts in the past. Additionally, the appellant admitted that she first began

drinking alcohol when she was twelve years old. She first used marijuana at the age

of fifteen and cocaine at the age of nineteen. In June 1995, the appellant began

receiving Social Security disability income which provides her only source of income.



         3
          The trial court’s revocation of the appellant’s Community Corrections sentence and
denial of a lternative se ntencing was rec ently affirm ed by a pa nel of this co urt. See State v.
Sweat, No. 03C01-9710-C C-00459 (Te nn. Crim. App. at Knoxville, Aug. 20, 1998).

         4
           It wou ld app ear th at the appe llant re ceive d little o r no b ene fit from her p lea ba rgain in this
case. Indeed, she agreed to be sentenced to consecutive sentences, Tenn. Code Ann. § 39-16-
602(f), and agreed to an eighteen month sentence when the maximum within the applicable range
is two years.

         5
           The appellant defined “ITP” as a condition where her platelet count drops from 258,000
to 7,000, causing her to bleed internally. She explained that the condition is due to her liver
“tricking” h er spleen into “thinking [she] nee d[s] m ore blood .”

                                                         3
Although the record indicates that the appellant had unsuccessfully participated in

two substance abuse programs, she maintains that she has been “clean” since

August 7, 1996.



         In explanation of her failure to appear at the Blount County Jail in November

1996, the appellant testified, “[I]t was a bad judgment call on my part. I should have

called other parties instead of taking it upon myself to not come into jail.”



         After considering the evidence presented, the trial court denied any form of

alternative sentencing. 6 Specifically, the trial court found that:

         the likelihood of [the appellant] being rehabilitated was [not] very high
         back in May or I wouldn’t have revoked her probation. She has been
         clean for a year, which is admirable and very important. She has
         made some payments or some payments have been made on her
         behalf on restitution, and that is good. I think to serve a sentence like
         this just on probation would depreciate the seriousness of the offense.
         She does have a significant criminal history, not just the underlying
         burglary and theft related offense, but others than that -- besides that,
         and a long history of criminal behavior; that being drug abuse.



                                                   Analysis



         The appellant challenges the trial court’s denial of any form of alternative

sentencing. Specifically, the appellant argues that she is a likely candidate for

rehabilitation, she does not have a lengthy criminal history, she is not a dangerous

or violent offender, and she was performing well on her Community Corrections

sentence.




         6
          Although the trial judge denied any form of alternative sentencing, the court remarked
that, when her sentence in case 8870 expires, “I will have her evaluated at that time for
Comm unity Corrections. . . . So, what she does between now and that date . . . will determine
whether or not she serves this sentence in confinement or if she’s allowed to serve it in the
com mu nity.” T his co nclu sion is inco rrec t. The trial co urt m ay not modify a sentence to the
Depa rtmen t of Corre ction onc e the judg men t becom es final. See Tenn. Code Ann. § 40-35-
212 (c); A dviso ry Com mis sion Com me nts, T enn . R. C rim . P. 35 . The cour t doe s, ho weve r, reta in
jurisdiction to modify any sentence which is to be served in the jail or workhouse and to m odify
any Department of Correction sentence during the time the defendant is being housed in a local
jail or work house awaiting tran sfer to the Depa rtmen t. See Tenn . Code A nn. § 40- 35-212 (c), -
212(d); Advisory Commission Comments, Tenn. R. Crim. P. 35.

                                                      4
       When a challenge is made to the manner of service of a sentence, this court

conducts a de novo review with the presumption that the determination made by the

trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1997). This presumption only

applies, however, if the record demonstrates that the trial court properly considered

relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In the present case, because the trial court properly considered such principles, the

presumption of correctness applies. Moreover, the appellant bears the burden of

showing that the sentence imposed by the trial court is improper. See Tenn. Code

Ann. § 40-35-210(b)(3)(1997).



       In determining the appellant's suitability for an alternative sentence, we first

determine whether the appellant is entitled to the statutory presumption that she is a

favorable candidate for alternative sentencing. State v. Bingham, 910 S.W.2d 448,

453 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995) (citing State v.

Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993)). To be eligible for the

statutory presumption, three requirements must be met. The appellant must be

convicted of a class C, D, or E felony. Tenn. Code Ann. § 40-35-102(6) (1997). She

must be sentenced as a mitigated or standard offender. Id. And, she must not have

a criminal history evincing either a "clear disregard for the laws and morals of

society" or "failure of past efforts at rehabilitation." Tenn. Code Ann. § 40-35-

102(5). Although the appellant is a range I standard offender of a class E felony,

she does not fall within the parameters of Tenn. Code Ann. § 40-35-102(5).

Therefore, she is not afforded the presumption favoring alternative sentencing.



       Moreover, we conclude that, even if the appellant was entitled to the

presumption, the presumption is rebutted by "evidence to the contrary." Such

evidence may be found in the presentence report, the evidence presented by the

State, the testimony of the accused, or any other source provided that it is part of

the record. Bonestel, 871 S.W.2d at 167; see also Tenn. Code Ann. § 40-35-


                                          5
102(6). Guidance as to what constitutes "evidence to the contrary" may be found in

the sentencing considerations codified in Tenn. Code Ann. § 40-35-103 (1997).

Bingham, 910 S.W.2d at 454 (citing Ashby, 823 S.W.2d at 169).



       Although the appellant's prior criminal history only includes one conviction

that is unrelated to the present charge, the presentence report reflects that the

appellant has an extensive history of illegal substance abuse. Such abuse

constitutes a past history of criminal behavior. Tenn. Code Ann. § 40-35-103(1)(A).

Moreover, the appellant has previously been afforded the opportunity to participate

in alternative sentencing and, obviously, this attempt at rehabilitation failed. Tenn.

Code Ann. § 40-35-103(1)(C). Not only did the appellant fail to appear at the jail for

service of her sentence, but she also was delinquent in her court ordered restitution

payments, which were often paid by her mother, and she voluntarily admitted to

drug use while in the Community Corrections program. Finally, to not confine the

appellant for failing to appear for service of a sentence would only serve to

depreciate the seriousness of the offense by rendering her conviction thereon a

nullity. Tenn. Code Ann. § 40-35-103(1)(B).



        Upon de novo review, we conclude that, because she does not fall within

the parameters of Tenn. Code Ann. § 40-35-102(5), the appellant is not entitled to

the presumption favoring alternative sentencing. Moreover, even if the presumption

applied, we conclude that confinement is justified based upon the appellant's history

of criminal conduct, her failure at past efforts of rehabilitation, and the seriousness

of the offense. Tenn. Code Ann. §§ 40-35-103(1)(A), -103(1)(B), -103(1)(C). The

appellant has failed to establish that the sentencing decision of the trial court is

improper. The record supports the trial court’s determination denying the appellant

a non-incarcerative sentence.



       Accordingly, the judgment of the trial court is affirmed.


                                          6
                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:



____________________________________
JOHN H. PEAY, Judge



____________________________________
JOSEPH M. TIPTON, Judge




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