         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs November 2, 2004

                   STATE OF TENNESSEE v. JON GLEN AKINS

                    Direct Appeal from the Circuit Court for Obion County
                            No. 4-15  William B. Acree, Jr., Judge



                   No. W2004-01140-CCA-R3-CD - Filed December 8, 2004



The Defendant, Jon Glen Akins, pled guilty to one count of theft of property valued between
$10,000.00 and $60,000.00, a class C felony. The trial court sentenced the Defendant to three years,
ordering that the Defendant serve 90 days in jail, followed by probation. The Defendant appeals,
contending that the trial court erred by not granting him full probation. Finding no error, we affirm
the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C.
MCLIN , JJ., joined.

Joseph P. Atnip, Dresden, Tennessee, for the appellant, Jon Glen Akins.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin McAlpin and James T. Cannon, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION
                                               I. Facts

        This case arises out of the Defendant’s conviction for theft of property valued between
$10,000.00 and $60,000.00, a class C felony. In February of 2004, an Obion County Grand Jury
indicted the Defendant for this offense, and the Defendant pled guilty on March 12, 2004. At the
guilty plea hearing, the State told the trial court that, had the case gone to trial, the evidence would
have shown that, between January 28, 2002 and September 23, 2003, the Defendant was employed
by Williams Sausage Company, as a delivery man. Further, the State said that, comparing the
reports that the Defendant turned in to the Williams Sausage Company with the merchandise that
he turned into the company, there was a discrepancy of $17,867.55.

       At the Defendant’s sentencing hearing, the following occurred. Roger Williams testified that
he was currently the president of Williams Sausage Company and that his company employed the
Defendant for approximately six and a half years. He said that between, January 28, 2002 and
September 23, 2003, the Defendant was a “route salesman.” Williams testified that Williams
Sausage Company would ship product to the Defendant and the Defendant would take responsibility
for this product and then would sell it, and then the Defendant would deliver it to grocery stores and
restaurants. Williams said that his sales manager began noticing “inordinate amount of credits
written” on the Defendant’s invoices and began investigating. He said that the manager discovered
that the Defendant was altering the invoices after giving them to his customers. The invoices would
say that the Defendant was giving the customer a monetary credit for returned product or for some
other reason, but the Defendant would not actually give that monetary credit to the store, but would
instead keep the money for himself.

        Williams said that he and his company attempted to determine how much money the
Defendant had taken by requesting that the Defendant’s customers send the company their copies
of the invoices and then comparing those invoices with the ones that the Defendant submitted.
Based upon this discrepancy, Williams said that the company terminated the Defendant and
inventoried his truck. He testified that the Defendant’s truck “came up quite a bit short, too. In
other words, he had probably sold product [and] . . . kept the money.” Williams testified that he
calculated the amount that the Defendant had stolen “a little over $17,000.00.”

         Jay Horton testified that he has known the Defendant for approximately one year, and he was
currently employed with the Defendant. He said that the Defendant is the “best neighbor I’ve ever
been around” and that he is also a good co-worker. He said that the Defendant has children and he
is a loving father that cares about his kids and spends a lot of time with them. He testified that the
Defendant’s children do not have a mother so the Defendant is a father and mother to his children.
Horton said that the Defendant is “a good person.”

        Barbara Tappen testified that she has known the Defendant for eight to ten years. She said
that the Defendant’s wife “left” over a year ago and that the Defendant has been taking care of his
kids and his house all by himself. She testified that the Defendant is good with his children and he
is patient and his children are respectful. Tappen testified that the Defendant works every day and
never misses a day.

        David Russell testified that the Defendant is his wife’s uncle. Russell testified that he lived
beside the Defendant for approximately three years, and the Defendant helped him and his wife buy
a home. Russell testified that the Defendant’s daughter babysits for his daughter, and the Defendant
is a devoted father.

       Melba Goins testified that she is the Defendant’s mother and that he is good with his
children. She said that the Defendant’s wife “went on the wild side” and left. She said that the
Defendant gave her and her other children a place to live when they did not have one.

       The Defendant testified that he was currently employed by a timber company in Mississippi.
He said that he has a sixteen-year-old daughter, a thirteen-year-old son, a ten-year-old daughter and
a four-year-old daughter. The Defendant said that his wife left him on February 14, 2003, to go
“live with her drug dealer.” He said that, before she moved out, she “successfully siphoned off . .

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. pretty much everything we owned.” He said that she took his bank accounts, credit cards, and any
money he had in the house. The Defendant testified that, two weeks after his wife left, he started
getting late notices that the phone and cable were going to be turned off. The Defendant said that,
many days, he considered “cashing it in and calling it a day, but [his] children kept [him] going and
gave [him] a reason to keep on.” He said that what he did was completely wrong, but the children
had to eat and had to have clothes and shelter. He said they had to have things to make up for their
mother being gone. The Defendant said that he is trying to pay the company back by refinancing
his house, but he has not yet been able to do so.

        The Defendant told the court that his children were his main concern, one of whom had
debilitating arthritis in her knees and ankles. The Defendant reiterated that he made a terrible
mistake and that he “let an emotional situation overcome [his] better judgment.” The Defendant said
that he would earn, on average, approximately $400 a week working for Williams Sausage
Company. On cross-examination, the Defendant admitted that he began stealing from the company
prior to his wife leaving, but explained that he did so to cover up for her drug problem.

       The trial court then stated:

       In imposing a sentence upon the [D]efendant, the Court considers many things. The
       Court considers the evidence in this record, including the evidence at the guilty plea,
       the evidence presented today, the Pre-Sentence Report, testimony of the witnesses,
       the testimony in particular of [the Defendant], the Victim Impact Statement, the
       argument of counsel, the attorneys, and also the principles of sentencing.

               The court finds that [the Defendant] is a Range I standard offender. There is
       one mitigating factor which applies. No. 1, the defendant’s criminal conduct neither
       caused nor threatened serious bodily injury. But there is one enhancing factor which
       also applies, the [D]efendant abused a position of private trust. In this regard, [the
       Defendant] was charged in his job of delivering product to customers and collecting
       the money. There was a great deal of faith put in him. He abused that trust over a
       period of many months. Thus, there is one mitigating factor and one enhancing
       factor, which makes [the Defendant] a Range I standard offender.

               The Court looks to T.C.A. 40-35-102, and finds these principles apply. Every
       defendant shall be punished by a sentence justly deserved in relation to the
       seriousness of the offense. Secondly, this chapter is to assure fair and consistent
       treatment of all defendants by eliminating unjustified disparity in sentencing and
       providing a fair sense of predictability to the criminal law and its sanctions. And 3(a),
       punishment shall be imposed to prevent crime and promote respect for the law by
       providing an effective general deterrence for those likely to violate the criminal laws
       of the State.

               The Court finds there is a need for deterrence in this case because theft is a
       very serious offense in this jurisdiction in that there are a great many crimes of theft
       and related-type offenses which are committed. Also, the [D]efendant’s crime was

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the result of intentional conduct motivated by a desire to profit or gain from criminal
behavior.

        The Court will note that [the Defendant] attempts to place a considerable part
of the blame upon his wife. His testimony was that she left on February 23rd of last
year, but that the crimes that he committed occurred for more than one year before
she left.

        [The Defendant] is presumed to be a . . . favorable candidate for alternative
sentencing. He has been convicted of a [c]lass C felony. He is a Range I offender.
The Court looks at the sentencing considerations in 40-35-103 to determine whether
or not any evidence has been presented by the State to rebut that presumption. The
Court finds that some evidence has been, in that confinement or some confinement
is necessary to provide an effective deterrent to others likely to commit similar
offenses.

        There are several factors. The [D]efendant asks for alternative sentencing,
and there are several factors that the Court looks at. The nature and circumstances of
the criminal conduct involved, this is a strike against [the Defendant]. He committed
many acts of crime. This covered a long period of time. And I think there’s some
difference. If you were to walk into Wal-Mart and pick up one item and steal that and
carry that out and then never do that again; on the other hand, I don’t know how many
different criminal acts you did, but you had criminal intent for a period of many
months, well over one year, and on numerous occasions, you stole from your
employer.

        The second fact that the Court looks at is the [D]efendant’s potential or lack
of potential for rehabilitation, including the risk that during the period of probation,
the [D]efendant will commit another crime. This is a factor in your favor. The Court
finds there is a potential for rehabilitation. And from the testimony of you and your
witnesses, I don’t think that it is particularly likely that you will commit this crime
again.

        Next, we look at whether a sentence of full probation would unduly depreciate
the seriousness of the offense. The Court is concerned that it is. Again, you stole
money on many occasions over a long period of time.

        And finally, whether a sentence other than full probation would provide an
effective deterrent to others likely to commit similar crimes. The Court finds there
is need for deterrence in this case.

       The presumptive sentence in this case is three years. There’s one enhancing
factor which would increase that, but there’s one mitigating factor which would
reduce that. So the sentence shall be three years.


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               Taking into account all the criteria I’ve just announced, also taking into
       account the attitude of your employer, Mr. Williams, the Court is going to grant some
       alternative sentencing. I’m going to sentence you to three years, to be served in the
       Tennessee Department of Correction. That time shall be suspended except for 90
       days, which you shall serve. You shall receive credit for one day previously served.

The Defendant appeals the judgment of the trial court, asserting that the trial court erred by not
granting him full probation.

                                            II. Analysis

         When a defendant challenges the length or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review of the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2003). This presumption 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. Ross,
49 S.W.3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal
conclusions reached by the trial court in sentencing a defendant or to the determinations made by the
trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn.
Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891
S.W.2d 922, 929 (Tenn. Crim. App. 1994). In conducting a de novo review of a sentence, we 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 statutory enhancement factors; (g)
any statements made by the defendant on his or her own behalf; and (h) the defendant’s potential or
lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210 (2003); State v.
Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party challenging a sentence imposed by
the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-
35-401(d), Sentencing Comm’n Cmts. Moreover, the record must reflect that the court has weighed
all of the factors in reaching its determination. State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim.
App. 1993) (citing State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989)). The court must explain on
the record why the defendant does not qualify under its analysis, and, if the court has based its
determination on only some of the factors, it must explain why these factors outweigh the others. Id.

         In the case under submission, we conclude that there is ample evidence that the trial court
considered the sentencing principles and all relevant facts and circumstances. Therefore, we review
its decision de novo with a presumption of correctness. Accordingly, so long as the trial court
complied with the purposes and procedures of the 1989 Sentencing Act and its findings are supported
by the factual record, this Court may not disturb this sentence even if we would have preferred a
different result. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts; State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). We note that the defendant bears the burden of showing
that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; Ashby, 823
S.W.2d at 169.


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         We now turn to decide whether the Defendant in the case under submission has proven that
his sentence, which included 90 days of incarceration, was improper. A defendant is eligible for
alternative sentencing if the sentence actually imposed is eight years or less. Tenn. Code Ann. § 40-
35-303(a) (2003). A defendant who is an especially mitigated or standard offender convicted of a
class C 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(b)(6) (2003). In determining
whether to grant or deny probation, the trial court may consider the following: the circumstances of
the offense; the defendant’s criminal record; background and social history; the defendant’s physical
and mental health; the deterrent effect on other criminal activity; and the likelihood that probation
is in the best interests of both the public and the defendant. State v. Parker, 932 S.W.2d 945, 958
(Tenn. Crim. App. 1996). A defendant bears the burden of establishing suitability for probation.
Tenn. Code Ann. § 40-35-303(b); Ashby, 823 S.W.2d at 169.

       Tennessee Code Annotated section 40-35-103(1) (2003) states that:

       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 . . . .

Additionally, “[t]he 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. . . .”
Tenn. Code Ann. § 40-35-103(5). The trial court may consider enhancing and mitigating factors
when determining a defendant’s sentence. Tenn. Code Ann. §§ 40-35-114, -113 (2003).

        In sentencing a defendant, the presumptive sentence for a defendant convicted of a Class C,
felony shall be the minimum sentence in the range if no enhancing or mitigating factors are present.
Tenn. Code Ann. § 40-35-210(c). When such factors are present, “the court must start at the
minimum sentence in the range, enhance the sentence within the range as appropriate for the
enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating
factors.” Tenn. Code Ann. § 40-35-210(e).

         In the case under submission, the Defendant contends that the trial court erred when it denied
him full probation because: the trial court improperly applied one enhancement factor; confinement
is not necessary to protect society; confinement is not necessary to avoid depreciating the seriousness
of these offenses; and the record does not indicate that measures less restrictive than confinement
have been frequently or recently applied unsuccessfully to him. The Defendant asserts that, pursuant
to Blakely v. Washintgon, 542 U.S. ___, 124 S. Ct. 2531 (2004), the one enhancement factor that the
trial court found applicable was improperly applied. The Defendant is correct in this regard,
however, the trial court sentenced the Defendant to the presumptive minimum sentence. Further, the
trial court did not base its decision to deny the Defendant full probation on the enhancement factor


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that it found applicable, but, rather, it cited multiple other reasons in the record. Therefore, any
Blakely error is clearly harmless beyond a reasonable doubt.

        When sentencing the Defendant, the trial court noted the presumption in favor of alternative
sentencing for the Defendant, and then the trial court determined that the State rebutted this
presumption pursuant to Tennessee Code Annotated section 40-35-103. The trial court found that
“some evidence” was presented that “some confinement is necessary to provide an effective deterrent
to others likely to commit similar offenses.” Further, the trial court found that the nature and
circumstances of the Defendant’s offense were such that some incarceration was necessary. The trial
court noted that the Defendant had a criminal intent to steal over a period of over a year and that, on
numerous occasions, he stole from his employer. The trial court also found that the Defendant’s
potential for rehabilitation was a factor in his favor, but then found that a sentence of full probation
would depreciate the seriousness of his offense. Additionally, the trial court found that there was a
need for deterrence in this case. We conclude that the evidence in the record does not preponderate
against these findings of the trial court, and we, therefore, affirm the trial court’s judgment.

                                           III. Conclusion

       In accordance with the foregoing, we conclude the trial court committed no reversible error
when it denied the Defendant’s request for full probation. Therefore, the judgment of the trial court
is AFFIRMED.


                                                        ____________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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