          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                           JANUARY 1998 SESSION
                                                     FILED
                                                      March 10, 1998

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )                Appellate C ourt Clerk
                                    )    NO. 02C01-9704-CC-00136
      Appellee,                     )
                                    )    McNAIRY COUNTY
VS.                                 )
                                    )    HON. JON KERRY
PATRICIA A. LISHMAN,                )    BLACKWOOD, JUDGE
                                    )
      Appellant.                    )    (Denial of Alternative Sentencing)



FOR THE APPELLANT:                       FOR THE APPELLEE:

GARY F. ANTRICAN                         JOHN KNOX WALKUP
District Public Defender                 Attorney General and Reporter

JEANNIE A. KAESS                         DEBORAH A. TULLIS
(At Hearing)                             Assistant Attorney General
Assistant Public Defender                Cordell Hull Building, 2nd Floor
17805 Highway 64                         425 Fifth Avenue North
P.O. Box 700                             Nashville, TN 37243-0493
Somerville, TN 38068-0700
                                         ELIZABETH T. RICE
CLIFFORD K. McGOWN, JR.                  District Attorney General
(On Appeal)
113 North Court Square                   ED NEAL McDANIEL
P.O. Box 26                              Assistant District Attorney General
Waverly, TN 37185                        300 Industrial Park Drive
                                         P.O. Box 473
                                         Selmer, TN 38375-0473




OPINION FILED:



AFFIRMED AS MODIFIED



JOE G. RILEY,
JUDGE
                                        OPINION



       The defendant, Patricia A. Lishman, pled guilty in the McNairy County Circuit

Court to two (2) counts of burglary, Class D felonies; one (1) count of theft over

$500, a Class E felony; and one (1) count of theft under $500, a Class A

misdemeanor.       The trial court denied alternative sentencing and imposed

concurrent sentences of two (2) years for each count of burglary, one (1) year for

the felony theft count and six (6) months in the county jail for the misdemeanor theft

count. On appeal, defendant challenges the trial court’s denial of alternative

sentencing. We remand for entry of modified judgments. In all other respects, the

judgment of the trial court is affirmed.



                                              I



       Defendant claims that because she was convicted of one (1) Class E felony

and two (2) Class D felonies, she is entitled to the statutory presumption of

alternative sentencing. She contends that the state did not rebut that presumption;

therefore, the trial court erred in denying alternative sentencing. 1

       At the time of the sentencing hearing, defendant was serving a sentence on

community corrections for a prior aggravated burglary conviction. She stated that

her performance on the program had been excellent. She regularly reported to her

community corrections supervisor and attended Alcoholics Anonymous meetings.

Defendant testified that incarceration would be a hardship because she was taking

care of her ill mother. Although she admitted prior crack cocaine use, defendant

claimed that she no longer used any kind of drugs. She testified that she had been

rehabilitated and would comply with the conditions of an alternative sentence.

       On cross-examination, defendant acknowledged that she had prior

convictions for aggravated burglary, theft under $500, and possession of drug


       1
         She also argues that the trial court imposed excessive sentences. We find this claim
to be without merit in that she received the presumptive minimum sentence within the range
for each felony count.

                                             2
paraphernalia.2 She also admitted that one month prior to the hearing, she tested

positive for cocaine while on community corrections for the aggravated burglary

conviction.3 Furthermore, she contested her involvement in the crimes, claiming

that someone else was actually responsible for stealing the items.

       The trial court sentenced defendant as a Range I, Standard Offender, to

concurrent sentences of two (2) years for each count of burglary, one (1) year for

theft over $500 and six (6) months in the county jail for theft under $500.

       In a subsequent written sentencing order, the trial court noted that defendant

was statutorily presumed to be a favorable candidate for alternative sentencing.

However, the trial court found that defendant had a prior history of criminal

convictions, measures less restrictive than confinement had recently been applied

unsuccessfully to the defendant, defendant tested positive for a controlled

substance while serving a sentence in the community corrections program, and she

was unwilling to accept responsibility for her criminal behavior. As a result, the trial

court determined that these factors outweighed the statutory presumption and

denied alternative sentencing.



                                             II



       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review



       2
          The pre-sentence report also indicates that defendant pled guilty in 1977 to
attempted burglary. At the sentencing hearing, defendant contested this conviction, claiming
that the charge was dismissed. Our disposition of this appeal would be the same regardless
of whether there was such a conviction.
       3
        She claimed that she tested positive for cocaine because she was taking a drug called
“benzocaine, which is for severe itching, and it has a cocaine derivative, but, you know, my
probation officer and I have worked that out.”

                                             3
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

      The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

      (1) [t]he evidence, if any, received at the trial and the sentencing
      hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
      and arguments as to sentencing alternatives; (4) [t]he nature and
      characteristics of the criminal conduct involved; (5) [e]vidence and
      information offered by the parties on the enhancement and mitigating
      factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
      defendant wishes to make in the defendant’s own behalf about
      sentencing.

       Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. An especially mitigated or standard

offender convicted of a Class C, D or E felony is presumed to be a favorable

candidate for alternative sentencing options in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6).

       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169.

      A court may also consider the mitigating and enhancing factors set forth in

Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103

considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d

435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the

defendant’s potential or lack of potential for rehabilitation when determining if an

alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State

v. Boston, 938 S.W.2d at 438.

      There is no mathematical equation to be utilized in determining sentencing

alternatives. Not only should the sentence fit the offense, but it should fit the

                                         4
offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467

(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of

alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994). In summary, sentencing must be determined on a case-by-case basis,

tailoring each sentence to that particular defendant based upon the facts of that

case and the circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235

(Tenn. 1986).

        The record supports the trial court’s denial of alternative sentencing in this

case.    Defendant has a history of criminal convictions, including aggravated

burglary, theft under $500, possession of drug paraphernalia and leaving the scene

of an accident. Furthermore, measures less restrictive than incarceration have

recently been unsuccessfully applied to the defendant, in that she tested positive

for a controlled substance while on the community corrections program. Moreover,

defendant’s version of the crimes indicate that she may have been less than candid

with the trial court about her involvement. This reflects upon her potential for

rehabilitation. State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996).

Accordingly, we find that the trial court properly denied alternative sentencing.

        This issue is without merit.



                                          III



        This Court notes that the written judgment of conviction on Count Three

incorrectly states that defendant was sentenced to three (3) years for burglary.

However, the transcript of the sentencing hearing and the trial court’s written

sentencing order both specify that defendant received sentences of two (2) years

for each count of burglary. When there is a conflict between the court minutes or

judgment and the transcript, the transcript controls. State v. Moore, 814 S.W.2d

381, 383 (Tenn. Crim. App. 1991); State v. Davis, 706 S.W.2d 96, 97 (Tenn. Crim.

App. 1985). The judgment on Count Three must, therefore, be modified to reflect

that the sentence is two (2) years. Furthermore, the judgment on Count Two



                                          5
incorrectly identifies the offense as misdemeanor theft. This judgment must be

modified to reflect the convicted offense as theft over $500, a Class E felony.



      The judgment of the trial court is affirmed in all respects, except the case is

remanded for entry of modified judgments in accordance with this opinion.




                                                 JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




PAUL G. SUMMERS, JUDGE




                                         6
