         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

                         Assigned on Briefs September 27, 2000

                STATE OF TENNESSEE v. JOSHUA L. WEBSTER

                       Appeal from the Circuit Court for Blount County
                           No. C-11836    D. Kelly Thomas, Judge



                                 No. E1999-02203-CCA-R3-CD
                                       December 4, 2000

The defendant appeals the trial court’s denial of probation or split confinement as the manner of
serving his eight-year rape sentence. Because the record supports the trial court’s imposition of an
incarcerative sentence, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JERRY L. SMITH, JJ., joined.

Shawn G. Graham, Assistant District Public Defender, Maryville, Tennessee, for the Appellant,
Joshua L. Webster.

Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General,
Michael L. Flynn, District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                The defendant, Joshua Webster, appeals the incarcerative sentence imposed by the
Blount County Circuit Court. After pleading guilty to rape and agreeing to an eight-year sentence,
the defendant submitted the question of the manner of service of the sentence to the trial court. See
Tenn. Code Ann. § 39-13-503(a)(1), (b) (1997) (proscribing rape through force or coercion as a
Class B felony). The trial court ordered that the sentence be served by confinement in the
Department of Correction. On appeal, the defendant claims that he should have received probation
or split confinement. After reviewing the record, the parties’ briefs, and the applicable law, we
affirm the trial court’s judgment.

              The record includes the transcript of the sentencing hearing, to which is exhibited the
presentence report. At the hearing, the defendant, the defendant’s father, and the victim’s father
testified. From these sources we glean the following information about the offense of rape to which
the defendant pleaded guilty.

                The female victim, who was twelve years of age on December 14 and 15, 1998,
complained that the defendant, who was seventeen years of age, came to her home on both days and
raped her. She stayed home from school, alone, on both days. She acknowledged that she
voluntarily admitted the defendant into her home on December 14 and that she did not physically
resist or fend off the defendant’s forced sexual advances. She did, however, object verbally to his
advances and did not consent to being penetrated by the defendant. She admitted the defendant to
her home again on December 15, when the defendant engaged in sexual intercourse with her on two
occasions against her will and despite her protests.

               The defendant maintained that the victim called him, told him she was fifteen years
of age, and offered him $35 to come to her house. When he arrived, the victim was attired in only
her underwear and “one thing led to another.” He admitted to sexually penetrating the victim but
claimed it was consensual.

               After a juvenile court petition was taken against the defendant, he agreed to a transfer
of the proceedings to circuit court and waived a grand jury indictment. After an information
charging him with rape was filed, he pleaded guilty to rape, a Class B felony, and agreed to accept
an eight-year sentence, with the manner of service to be determined by the trial court.

                The defendant was eighteen years old at the time of sentencing. He quit school during
the twelfth grade in lieu of being expelled after he engaged in a fight with another student and was
found carrying a knife in his boot. He regularly used marijuana, at least from the time he was
fourteen until a few weeks before the sentencing hearing. During the presentence investigation, he
tested “positive” for the use of marijuana. At the time of sentencing, he had been diagnosed as
suffering from bipolar disorder, a condition for which he was being medicated. He resided with his
father in Loudon County. He had been adjudicated delinquent for shoplifting in juvenile court in
June 1998 and for unlawful consumption of alcohol and driving under the influence in April 1998.
He was placed on probation in these cases. While the present rape charges were pending, the
defendant committed other offenses. In addition to the admitted use of marijuana, he was convicted
as an adult on July 29, 1999 of possessing drug paraphernalia, and he received a sentence of eleven
months and 29 days, suspended upon payment of a fine and costs. Additionally, the defendant
admitted to being arrested for shoplifting that occurred after the rape charges were filed, although
this charge did not appear in the presentence report. After the present rape charge was filed, the
defendant dated a thirteen-year-old girl, but no charges were filed as a result of his contact with her.

              In denying any form of alternative sentencing, the trial court relied primarily upon the
defendant’s poor prospects for rehabilitation, based upon the defendant’s actions after the current
rape charges were filed, including his pursuit of a thirteen-year-old girl, shoplifting, possession of
drug paraphernalia, and the use of marijuana. On appeal, the defendant claims that the trial court
should have probated all or part of his sentence.


                                                  -2-
               In this case, we review the trial court’s sentencing determination de novo with a
presumption that those determinations are correct. See Tenn. Code Ann. § 40-35-401(d) (1997);
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is
improper is upon the [defendant].” Ashby, 823 S.W.2d at 169.

                As a recipient of a Class B felony sentence, the defendant was not presumed to be a
favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997). As
such, the state had no burden of justifying confinement through demonstrating the presence of any
of the considerations upon which confinement may be based. See Tenn. Code Ann. § 40-35-103(1)
(1997); State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996) (when presumption of
favorable candidacy for alternative sentencing options applies, state must justify confinement by
showing “evidence to the contrary” of the presumption).

                 Apart from sentences which utilize fines or restitution as alternatives to confinement,
the only sentencing options which serve as alternatives to confinement in some form are community
corrections placement and probation. See Tenn. Code Ann. § 40-35-104(c) (1997). Because he
committed a violent offense, the defendant is ineligible for community corrections placement. See
Tenn. Code Ann. § 40-36-106(a)(2), (3) (1997) (persons convicted of crimes against the person or
violent felony offenses ineligible for community corrections consideration); State v. Jesse James
Gilbert, Jr., No. 03C01-9707-CC-00269, slip op. at 3 (Tenn. Crim. App., Knoxville, Apr. 30, 1998)
(person convicted of rape ineligible for community corrections pursuant to Code section 40-36-
106(a)(2), (3)). Although the defendant regularly used marijuana and was being medicated for
bipolar disorder, we find no clear basis in the record for concluding that the defendant should be
considered for community corrections placement based upon the “special needs” exception to
eligibility that is set forth in Code section 40-36-106(c), and in his appellate brief, the defendant
makes no claim for community corrections placement via the “special needs” provision.
Accordingly, the defendant is relegated to arguing on appeal that the trial court erred in not awarding
a sentence that involved some measure of probation.

                The defendant is eligible for probation. See Tenn. Code Ann. § 40-35-303(a) (1997).
Although the court must automatically consider probation as a sentencing option for eligible
defendants, the burden rests with the defendant to establish suitability for probation as a part of the
trial court’s sentencing determination. See Tenn. Code Ann. § 40-35-303(b) (1997). When
considering probation, the trial court should evaluate the nature and circumstances of the offense,
whether a sentence of probation would depreciate the seriousness of the offense, whether the need
for deterrence militates against an award of probation, and the “defendant’s potential or lack of
potential for rehabilitation, including the risk that during the period of probation the defendant will
commit another crime.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995),
overruled on other grounds, State v. Hooper, — S.W.3d — (Tenn. 2000).1


         1
                   W e realize that in Bingham this court said tha t the defenda nt “has the burd en of establishin g suitability
for full probation.” Bingham, 910 S.W.2d at 455 (emphasis added). However, the Bingham court referre d to full
                                                                                                                  (continued ...)

                                                              -3-
                The trial court primarily premised its denial of any probation upon this last factor, the
lack of the defendant’s potential for rehabilitation, based upon the defendant’s re-offending behavior
and upon his relationship with a thirteen-year-old female, all of which occurred during the pendency
of the present case. The defendant has failed on appeal to show that the trial court erred. The record
supports its findings, and we are not free to disturb the trial court’s imposition of an incarcerative
sentence. In fact, we are inclined to agree that the record demonstrates that the defendant has little
potential for rehabilitation. Not only did he commit offenses and indiscretions during the pendency
of the present case, but previously courts had probated the defendant’s sentences for offenses
including shoplifting, DUI and possession of drug paraphernalia. Yet, the defendant frowardly
wasted these earlier opportunities to rectify his errant ways without suffering the rigors of
confinement. A sentence of confinement is now warranted by the record before us.

                   Accordingly, the judgment of the trial court is affirmed.

                                                         __________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




         1
           (...continued)
probation in contrast with a defendant who “is entitled to the statutory presumption of alternative sentencing, [a
circumstance in which] the State has the burden of overcoming the presumption with evidence to the contrary.” Id. In
Bingham, the court held that the state presented “insufficient eviden ce to overcome the statutory presumption that the
appellant is a favorable candidate for alternative sentencing.” Id. The result was that an alternative sentence of some
type “must be imposed.” Id. On the other hand, when the presumption of favorable candidacy for alternative sentencing
is not applicable, either because the defendant is not eligible because he has been convicted of a Class A or B felony or
the state has successfully overcome the presumption by “evidence to the contrary,” the logical conclusion is that the
defendant bears the burden of showing that he is entitled to any probatio n. To hold otherwise would be to afford the
defendant the benefit of the presumption, which is contrary to Code section 40-35-102(6). Unless the burden of
justifying any probatio n is placed upon a defendant who is not a favorable candidate for alternative sente ncing, the state
would have the consequent burden of justifying any confinement, which is exactly the burden put upon th e state when
the presum ption app lies.



                                                            -4-
