         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 24, 2006

                STATE OF TENNESSEE v. ARTHUR R. BROOKS

                       Appeal from the Criminal Court for Knox County
                        No. 81905    Richard R. Baumgartner, Judge



                   No. E2006-00013-CCA-R3-CD - Filed November 29, 2006


The defendant, Arthur R. Brooks, pled guilty pursuant to a plea agreement in the Knox County
Criminal Court to three counts of robbery, a Class C felony. The defendant was sentenced as a
Range I, standard offender to six years for each conviction, to be served concurrently, with the trial
court to determine the manner of service of the sentences. After a sentencing hearing, the trial court
ordered that the defendant serve his sentences in confinement. The defendant appeals, claiming that
the trial court erred in denying him alternative sentencing. We affirm the judgments of the trial
court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and JOHN EVERETT WILLIAMS, JJ., joined.

Mark E. Stephens, District Public Defender, and John R. Halstead, Assistant Public Defender, for
the appellant, Arthur R. Brooks.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Steven C. Garrett and Marsha Mitchell, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant committed three robberies of Walgreens stores over the course of six days.
In the offenses, the defendant posed as a customer who was about to buy something. When the clerk
opened the cash drawer, the defendant announced that he was committing a robbery and took the
cash from the drawer. On two of the three occasions, the defendant feigned having a weapon in his
pocket.

       At the sentencing hearing, neither the state nor the defense offered any testimonial proof.
The state relied on the presentence report and a letter from the manager of the enhanced probation
program. The presentence report reflected that the defendant attributed his crimes to a drug problem.
The defendant reported to the preparer of the presentence report that he was sorry for what he had
done and hoped that he would be given the opportunity for rehabilitation. The defendant reported
that he had enrolled in a drug rehabilitation program, although a letter from Knox Area Rescue
Ministries which the defense introduced reflected that the defendant was enrolled in that program
for less than a month. The defendant reported to the presentence officer that he was terminated from
the drug rehabilitation program for a rule violation but that the violation was not related to drug use.
The defendant’s criminal history as reflected in the presentence report includes a prior history of six
counts of robbery with a prison sentence in Kentucky. The letter from the manager of the enhanced
probation program contains information which is duplicative of that in the presentence report and
expresses a belief that based upon the defendant’s history, he is not a suitable candidate for enhanced
probation. The letter does not reflect that its author interviewed the defendant.

        Based upon this evidence, the trial court found that the defendant was not an appropriate
candidate for placement in the community “based on his record, based on the nature of these
offenses, based on the fact that there are three of them.” The court ordered that the defendant serve
his effective six-year sentence in the Department of Correction. The defendant filed this direct
appeal, in which he contends that the trial court erred by denying probation or other alternative
sentencing.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d). However, the 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. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). The burden is on the appealing party to show that the sentence is improper. T.C.A. §
40-35-401(d), Sentencing Comm’n Cmts. This means that if the trial court followed the statutory
sentencing procedure, made findings of fact that are adequately supported in the record, and gave
due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        When determining if confinement is appropriate, a trial court should consider whether (1)
confinement is necessary to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is necessary to avoid depreciating the seriousness of the offense
or confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) measures less restrictive than confinement have frequently or recently been
applied unsuccessfully to the defendant. T.C.A. § 40-35-103(1)(A)-(C). The trial court may also
consider a defendant’s potential or lack of potential for rehabilitation and the mitigating and
enhancing factors set forth in Tennessee Code Annotated sections 40-35-113 and -114. T.C.A. §§
40-35-103(5), -210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). The
sentence imposed should be the least severe measure necessary to achieve the purpose for which the
sentence is imposed. T.C.A. § 40-35-103(4). Because the defendant was convicted of Class C


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felonies, he was entitled to the presumption that he was a favorable candidate for alternative
sentencing in the absence of evidence to the contrary. T.C.A. § 40-35-102(6).

         The forty-three-year-old defendant had recently been incarcerated in Kentucky for six robbery
offenses, yet he committed three more robberies over the course of six days. Measures less
restrictive than confinement have recently been applied unsuccessfully to the defendant. T.C.A. §
40-35-103(1)(A). Likewise, the defendant’s prospects for rehabilitation are poor. Although he
professed remorse for the offenses and his desire to change, he was not able to abide by the terms
of the drug rehabilitation program in which he was briefly enrolled after committing these offenses
but prior to his arrest and incarceration for the offenses. He has a history of illegal drug use dating
back to age eighteen, and at times, he has used drugs on a daily basis. These facts support the trial
court’s determination that the defendant’s favorable candidacy for alternative sentencing had been
rebutted and that a sentence of confinement was appropriate.

        Regarding the trial court’s denial of probation, we note that the determination of whether a
defendant is entitled to alternative sentencing requires a different inquiry than when probation is
considered. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). When a defendant is
entitled to the statutory presumption in favor of alternative sentencing, the state has the burden of
overcoming the presumption, as it did in this case. See T.C.A. § 40-35-102(6); Ashby, 823 S.W.2d
at 169. On the other hand, a defendant has the burden of establishing suitability for total probation.
See T.C.A. § 40-35-303(b); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995). The
defendant failed to demonstrate such suitability.

        We have not overlooked the defendant’s argument that the manager of the enhanced
probation program did not interview the defendant and gathered no information beyond that which
was summarized in the presentence report. Although the record on appeal indicates the defendant’s
assertion is accurate, he had the burden of demonstrating his suitability for probation. He chose not
to testify or offer evidence, other than the letter from Knox Area Rescue Ministries, which
demonstrated that he was a suitable candidate for probation, and the record otherwise indicates the
contrary.

        In consideration of the foregoing and the record as a whole, the judgments of the trial court
are affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




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