         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            MAY 1998 SESSION
                                                   FILED
                                                      July 21, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   ) C.C.A. No. 02C01-9708-CC-00333
      Appellee,                    )
                                   ) Hardin County
V.                                 )
                                   ) Honorable C. Creed McGinley, Judge
MICHAEL BENSON,                    )
                                   ) (Probation Denial)
      Appellant.                   )
                                   )




FOR THE APPELLANT:                 FOR THE APPELLEE:

Guy T. Wilkinson                   John Knox Walkup
Public Defender                    Attorney General & Reporter

Richard DeBerry                    Douglas D. Himes
Assistant Public Defender          Assistant Attorney General
605 Court Street, Suite 3          425 Fifth Avenue North
Savannah, TN 38372                 Nashville, TN 37243-0493

                                   Robert “Gus” Radford
                                   District Attorney General

                                   John Overton
                                   Assistant District Attorney General
                                   P.O. Box 484
                                   Savannah, TN 38372




OPINION FILED: _______________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                               OPINION
          The appellant, Michael Benson, appeals his sentence of six years for the

killing of his brother-in-law, Donnie Ray Qualls.1 On June 4, 1997, the appellant

pled guilty to voluntary manslaughter pursuant to a negotiated plea agreement

and received a six-year sentence as a Range I, standard offender. A sentencing

hearing was held on August 4, 1997, and the trial court denied the appellant’s

request for an alternative sentence. He was ordered to serve his sentence in

confinement.



          The appellant’s sole issue on appeal is whether the trial court erred by

denying him probation. We affirm the appellant’s sentence.



          On November 6, 1996, Donnie Ray Qualls, the victim and brother-in-law

of the appellant, went to the appellant’s house. He had gone there to pick up his

child. An altercation apparently ensued, and the appellant shot his brother-in-law

with a shotgun. According to the appellant, Qualls had threatened him earlier

during a telephone conversation, and while at the appellant’s house, Qualls

approached the appellant. The appellant told Qualls to stop, and when he did

not, the appellant shot him.



          The victim’s wife and the appellant’s sister, Kimberly Qualls, testified at

the sentencing hearing. She stated that the appellant had shown no remorse for

the killing and that he laughs about it. She also testified that the appellant will

not leave her alone, stating that he has been near her house and has called her

on the telephone.

          At the sentencing hearing, the appellant testified that he had not laughed

about the killing. Furthermore, he stated that he had called his sister’s house to


     1
       T h e ind ictm en t s p ells th e victim’s na me D onny, but the tra ns cript s pells the na me D onnie. We
will use the sp elling in the tra nscript.

                                                           -2-
contact their younger sister about employment, not to harass his sister as she

had testified.



       In denying the appellant’s request for probation, the trial court found that

confinement was necessary to avoid depreciating the seriousness of the offense

and to provide an effective deterrence to others.



       The appellant argues that the trial court erred in not granting his request

for an alternative sentence. He asserts that the trial court relied primarily “on the

fact of a death and deterrence in not granting probation.” He contends that

although a death occurred, that alone does not justify a denial of probation.

Furthermore, the appellant notes that the trial court found that he was a standard

offender of a Class C felony, and the appellant asserts that based on that

determination, he was entitled to the statutory presumption that he is a favorable

candidate for alternative sentencing.



       With respect to deterrence, the appellant contends “that before the Trial

Court can deny alternative sentencing on the ground of deterrence, there must

be some evidence contained in the record that the sentence imposed will have a

deterrent effect within the jurisdiction.” He insists that there is nothing in the

record to indicate that denying him probation would have a deterrent effect.



       The state insists that the trial court properly ordered the appellant to serve

his sentence in confinement. The state argues that it successfully rebutted the

presumption for alternative sentencing. Although the state acknowledges that a

death alone does not overcome the presumption in favor of alternative

sentencing, it maintains that a death is a factor that can be considered.




                                          -3-
       When an appellant challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d) (1997). However, this presumption is conditioned on an affirmative

indication in the record that the trial court considered the sentencing principles

and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).



       The appellant bears the burden of showing that the sentence was

improper. Id. In determining whether the appellant has met this burden, this

Court must consider (a) the evidence adduced at trial and the sentencing

hearing; (b) the presentence report; (c) the principles of sentencing; (d) the

arguments of counsel; (e) the nature and characteristics of the offense; and (f)

the appellant’s potential or lack of potential for rehabilitation or treatment. Tenn.

Code Ann. §§ 40-35-103(5), -210(b) (1997).



       As the trial court observed during the sentencing hearing, the first step is

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

he is a favorable candidate for alternative sentencing. For a defendant to be

entitled to this presumption, three criteria must be met under Tennessee Code

Annotated §§ 40-35-102(5) and -102(6) (1997): the defendant must be an

especially mitigated or standard offender; he or she must be convicted of a Class

C, D, or E felony; and he or she must not fall within the parameters of

Tennessee Code Annotated § 40-35-102(5), which states that a defendant

cannot have a criminal history that shows a “clear disregard for the laws and

morals of society” or “failure of past efforts at rehabilitation.” The trial court found

the appellant to be a standard offender of a Class C felony and found that he




                                          -4-
does not have a significant criminal history. 2



        By providing evidence to the contrary, the state may rebut the

presumption that the defendant is a favorable candidate for alternative

sentencing. Tenn. Code Ann. § 40-35-102(6) (1997). Insight regarding what

constitutes “evidence to the contrary” is provided at Tennessee Code Annotated

§ 40-35-103:

        (1) Sentences involving confinement should be based on 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
               (C) Measures less restrictive than confinement have frequently
        or recently been applied unsuccessfully to the defendant.

State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995) (citing State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). The trial court found that the

appellant did not have a significant prior record. Thus, subsections (A) and (C)

were not applicable. However, the court did find that confinement was

necessary to avoid depreciating the seriousness of the offense and to provide an

effective deterrence to others likely to commit similar offenses. Tenn. Code Ann.

§ 40-35-103(1)(B) (1997).



        For a trial court to deny an alternative sentence based on the seriousness

of the offense, the circumstances of the offense “‘must be especially violent,

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or

exaggerated degree,’ and the nature of the offense must outweigh all factors

favoring a sentence other than confinement.” Bingham, 910 S.W.2d at 454

(quoting State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)).


    2
      In 1988, the appellant was convicted of driving under the influence in California. He served 48
hours in jail and was fined $1,000. Also, the appellant received a general discharge from the United
States Nav y for un authorize d absen ces.

                                                   -5-
The occurrence of a death cannot alone constitute sufficient evidence to the

contrary under Tennessee Code Annotated § 40-35-102(6). Id. at 455. The trial

court’s denial of an alternative sentence based on the seriousness of the offense

under Tennessee Code Annotated § 40-35-103(1)(B) (1997) can only be upheld

if the Hartley conditions are in the record.



       The trial court also denied alternative sentencing based on deterrence.

However, the record must contain some evidence that the sentence imposed will

have a deterrent effect within the jurisdiction before a trial court can deny

alternative sentencing based on this ground. State v. Bonestel, 871 S.W.2d 163,

169 (Tenn. Crim. App. 1993). Furthermore, conclusory statements are

insufficient, and only when there is proof of the deterrent effect within the

jurisdiction will denial be upheld. Ashby, 823 S.W.2d at 170.



       The appellant insists that he should have received full probation.

However, we note that although the appellant is entitled to the presumption of

alternative sentencing, he, not the state, has the burden of establishing suitability

for full probation. Tenn. Code Ann. § 40-35-303(b) (1997). To meet this

burden, the appellant must illustrate how probation will “subserve the ends of

justice and the best interest of both the public and the defendant.” Bingham, 910

S.W.2d at 456 (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.

1990)).



       In determining the appropriate sentence, the trial court may not consider

any factor that is an element of the offense. Id. Thus, the occurrence of a

death, which the trial court emphasized in denying probation, is not relevant in

the determination of whether the appellant is entitled to full probation.




                                         -6-
       Tennessee Code Annotated § 40-35-103(5) (1997) provides the “potential

or lack of potential for the rehabilitation or treatment of the defendant should be

considered in determining the sentence alternative or length of a term to be

imposed.”    Furthermore, a defendant’s failure to accept responsibility for his

crimes is relevant to his rehabilitation potential. State v. Zeolia, 928 S.W.2d 457

(Tenn. Crim. App. 1996).



       The victim’s wife and the appellant’s sister, Kimberly Qualls, in her impact

statement and in her testimony at the sentencing hearing stated that the

appellant had not shown any remorse for what he had done. At his sentencing

hearing, the appellant’s response to this statement by his sister was “I hate it for

everyone concerned with this. I’m very sorry for everyone that’s dealing with this.

But I had no other choice.” Also, when asked about his difficulty in finding

steady employment, the appellant responded: “My nerves and stuff, you know, is

bothering me. Other than that, it’s just waiting on this situation to ease on away

so I can get re-established.” (emphasis added).



       We recognize that the appellant was in his own home at the time of the

shooting and that he contends he had no other choice but to shoot Donnie Ray

Qualls. However, we must agree with the victim’s wife that the appellant has

offered little proof of genuine remorse for his actions.   At his sentencing

hearing, the appellant appeared more concerned with getting “this situation to

ease on away” and with re-establishing himself than he was in accepting

responsibility and showing genuine remorse for his actions. When given an

opportunity to make a statement to be included in his presentencing report, he

declined. As we noted earlier, the appellant has the burden to establish his

suitability for probation. In this case, we find that he has failed to meet this

burden.



                                          -7-
      On appellate review, we always appreciate detailed findings by the trial

court. When they exist, the presumption of correctness on sentencing issues

takes effect. On the issue of overcoming the presumption of some alternative

sentencing, we exercise our de novo sentencing authority in this case. We find,

based upon the totality of the circumstances, that the appellant’s crime is

reprehensible and offensive. We are also concerned that he expresses no

genuine remorse. If he is to benefit from probation and the state’s largesse, he

needs to act like he is a proper and suitable candidate.



      We affirm the sentence in its entirety.




                                                ________________________
                                                PAUL G. SUMMERS, Judge



CONCUR:



____________________________
JOHN H. PEAY, Judge




                                        -8-
____________________________
THOMAS T. W OODALL, Judge




                               -9-
