         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      May 2000 Session

                STATE OF TENNESSEE v. CLARENCE WEAVER

                    Direct Appeal from the Criminal Court for Knox County
                         No. 66689    Richard R. Baumgartner, Judge



                                 No. E1999-02005-CCA-R3-CD
                                       August 21, 2000

This appeal arises from the sentence that the defendant received after pleading guilty to aggravated
burglary. He challenges the trial court’s application of one of the four enhancement factors found,
refusal to apply three mitigating factors, and refusal to place him in the Community Alternatives to
Prison Program (CAPP). Based upon our review of the record, we affirm the judgment of the trial
court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Clarence Weaver.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Marsha Selecman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

       On August 12, 1999, the defendant, Clarence Weaver, pled guilty to aggravated burglary, a
Class C felony. The burglary occurred on August 19, 1996. The defendant was subsequently
sentenced to fourteen years as a persistent Range III offender, and his application for placement in
the Community Alternatives to Prison Program was denied by the trial court. The defendant
appealed and raised the following issues for our consideration:

               I.      Did the trial court err in applying the sentence enhancement
                       factor that the defendant was the leader in the commission of
                       this offense?
               II.     Did the trial court err in refusing to apply the statutory
                       mitigating factor that the defendant's conduct neither caused
                       nor threatened serious bodily injury?

               III.    Did the trial court err in refusing to apply the statutory
                       mitigating factor that the defendant played a minor role in the
                       commission of the offense?

               IV.     Did the trial court err in refusing to apply the statutory
                       mitigating factor that the defendant assisted the authorities in
                       uncovering offenses committed by other persons or in
                       detecting or apprehending other persons who had committed
                       the offenses?

               V.     Did the trial court err in refusing to place the defendant in the
                       Community Alternatives to Prison Program (CAPP)?

Based upon our review of the record, we affirm the judgment of the trial court.

                                               FACTS

        For the purposes of sentencing, the trial court classified the defendant as a Range III
persistent offender, making the appropriate range of punishment ten to fifteen years at forty-five
percent for the Class C felony of aggravated burglary. At the sentencing hearing on August 12,
1999, the trial court heard testimony from one of the victims, the investigating officer, and the
defendant. The court reviewed the presentence report, the defendant’s statements to police, the
victim impact statement, and the report from the CAPP office in making its sentencing
determination. The trial judge noted that this was a non-probatable offense, and the defendant’s only
option was incarceration or CAPP. In imposing a sentence of fourteen years in the Tennessee
Department of Correction, the court found that the following four enhancement factors applied:
factor (1), the defendant has a previous record of additional criminal conduct; factor (2), the
defendant was the leader in the commission of the crime involving two or more actors; factor (3),
there was more than one victim; and factor (8), the defendant had a previous history of unwillingness
to comply with the conditions of a sentence involving release into the community. The court
rejected mitigating factors (1), the criminal conduct did not cause or threaten serious bodily injury,
and (4), the defendant played a minor role in the offense. The trial court agreed with the CAPP
review findings that the defendant was not an appropriate candidate for the program, and his
application for alternative sentencing was denied.

                                           ANALYSIS

         In reviewing a sentence, we conduct a de novo review with a presumption of correctness of
the trial court’s findings. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon
the affirmative showing in the record that the trial court considered the sentencing principles and all

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relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). We find that
the trial court properly considered the appropriate factors, and the presumption of correctness
applies.

        In conducting our de novo review of the sentences, we must consider: (1) the evidence
received at trial and at the sentencing hearing; (2) the presentence report; (3) sentencing principles;
(4) arguments for sentencing alternatives; (5) the nature and characteristics of the criminal conduct
involved; (6) any mitigating and enhancement factors; (7) the defendant’s statements regarding
sentencing; and (8) the defendant’s potential, or lack thereof, for rehabilitation or treatment. Tenn.
Code Ann. §§ 40-35-102, -103, -210 (1997); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App.
1987). The defendant has the burden of showing that he received an improper sentence. Ashby, 823
S.W.2d at 169.

                                                  I.

                                      Enhancement Factor (2)

        The defendant challenges only the trial court’s application of enhancement factor (2), that
he was the leader in the offense. He argues that the evidence presented shows that he did not direct
his sons to burglarize the house but merely drove them to and from the scene. The defendant points
to the fact that he never exited the car, never entered the residence, and did not assist his sons in
entering the residence. The trial court explained the application of this factor by pointing to the fact
that the defendant is the father of his two young co-defendants, and the evidence showed that he was
an active and directing participant in the offense. After hearing all of testimony at the sentencing
hearing, the trial judge told the defendant:

        THE COURT: Mr. Weaver, I will look you in the eye and tell you
                   I don’t believe you when you say that you did this
                   for the purpose of putting food on your family’s
                   table. I think you did it for the purpose of having
                   money to buy alcohol and possibly other substances.
                   I don’t think it was done for the purpose of
                   improving your family situation. I think it was done
                   for a personal motive of obtaining things that you
                   could not otherwise obtain, including the use of
                   alcohol and other illegal substances. So I just don’t
                   believe you, Mr. Weaver, and I don’t say that very
                   often, but that is the way I feel about this particular
                   case.

       After a reading of the presentencing report and the defendant’s statements to police, along
with the rest of the record, we agree with the trial court that this factor applied. The only evidence
offered to show that the defendant was not the leader was the testimony of the defendant himself,


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and the trial judge simply did not find him to be a credible witness. We will not disturb the trial
court’s assessment of credibility on appeal. In addition, there was evidence presented that the
defendant was the one who sold the stolen items, and the presentencing report shows that he has a
long history of criminal behavior beginning in the 1970's with a conviction for aiding and abetting
embezzling mail and grand larceny. We find that the record adequately supports the application of
enhancement factor (2).

                                                  II.

                               Mitigating Factors (1), (4), and (10)

        The defendant’s argument that mitigating factors were erroneously refused by the trial court
is likewise without merit. He argues that mitigating factor (1), that his criminal conduct did not
threaten serious bodily injury, should have been applied to lessen his sentence, because the victims
were not at home during the burglary. The trial court was not specific in attaching facts to its refusal
to apply this factor, other than to say that a non-violent classification of an offense does not mean
that this factor should automatically apply.

       Considering a similar argument in State v. Timothy Alan Hopper, No. 02C01-9709-CC-
00371, 1999 WL 167611, at *4 (Tenn. Crim. App., Jackson, Mar. 29, 1999), perm. app. denied,
(Tenn. Sept. 20, 1999), Judge (now Justice) Barker wrote:
               We are not prepared to hold that mitigating factor (1) applies merely
               because the appellant’s actions fit the elements of the convicted
               burglary offense. To do so would effectively require trial courts to
               mitigating a defendant’s sentence any time there is a conviction of
               burglary.

        We conclude this mitigating factor was properly refused by the trial court. The defendant
and his sons took several guns in the burglary, and their possession of these deadly weapons
threatened serious bodily injury to anyone who would have interrupted the burglary. The burglary
appears to have taken place during the day, and the probability of interruption by the victims or third
parties was high. In fact, a neighbor was the person who called the police.

         Even if the trial court should have applied mitigating factor (1), it would not have made a
difference in the defendant’s sentence. Just because a mitigating factor exists, a reduction in
sentence is not required. We have previously held that a maximum sentence can be imposed by a
trial court, even when a mitigating factor applies. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim.
App. 1995), perm. app. denied, (Tenn. 1996) (mitigating effect of factor (1) completely outweighed
by enhancement factor); State v. Franklin, 919 S.W.2d 362, 365 (Tenn. Crim. App. 1995), perm.
app. denied, (Tenn. 1996) (defendant received maximum sentence where four enhancement factors
completely outweighed mitigating factor (1)). In addition, the weight to be given each factor is left
to the discretion of the trial court. Id. Considering the fact that the court found four enhancement



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factors, the presence of this mitigating factor does not mean that the sentence would have been
reduced.

        Mitigating factor (4), that the defendant played a minor role, was found not to be applicable,
because the trial court determined that the defendant was the leader in the burglary. The fact that he
did not go into the residence with his sons but merely drove the getaway car did not convince the
trial court that he was a minor player in the offense, and that decision is adequately supported by the
record.

        The trial court was also correct in refusing to apply mitigating factor (10), the defendant
assisted authorities in locating or recovering the stolen goods. However, the defendant did not give
his statements to police until a year and a half after the crime and only after being implicated by one
of his sons. Since the stolen property was not recovered, we will never know if the name of the
buyer given by the defendant was correct information. The person named as the buyer apparently
denied any knowledge of the property. This factor was not applicable.

        The result of the trial court’s application of four enhancement factors and no mitigating
factors is adequately supported by the record, and the defendant’s fourteen-year sentence was proper.
The defendant has failed to carry his burden of showing that the sentence was improper.

                                                 III.

                                               CAPP

        The defendant argues that he should have been placed in the Community Alternatives to
Prison Program (CAPP). He contends, among other reasons, that his criminal record merely consists
of non-violent driving or property crimes, and his military service shows that he is capable of
functioning well in a structured environment. The defendant argues that his current substance abuse
habit would be better dealt with in the program, rather than in prison.

        We must first determine if the defendant is a suitable candidate for alternative sentencing
under the Community Corrections Act of 1985. A suitable candidate is an especially mitigated or
standard offender who does not possess a criminal history that shows a clear disregard for the laws
and morals of society and has not failed past efforts at rehabilitation. Tenn. Code Ann. § 40-35-
102(5), (6) (1990 & Supp. 1996); State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App.), perm.
app. denied (Tenn. 1997). Since the defendant was sentenced as a Range III persistent offender and
has a long history of disregard for the laws and morals of society, we do not find him to be a suitable
candidate for alternative sentencing.

       Even if the defendant were to meet the minimum eligibility requirements of the Community
Corrections Act, he is not necessarily entitled to an alternative sentence. State v. Kendrick, 10
S.W.3d 650, 656 (Tenn. Crim. App. 1999). In this case, the record supports the trial court’s
determination that the defendant was not eligible for CAPP. The court found four enhancement


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factors and no mitigating factors. Additionally, the assessment of the CAPP representative stated
that the defendant was not an appropriate candidate for their program. The CAPP report noted that
the defendant’s criminal history dates back to the early 1970's and included a federal charge in which
his probation was later revoked. Of particular concern to CAPP was the fact that the defendant
committed the aggravated burglary with his sons, has a severe substance abuse disorder, and tested
at a 48.1% recidivism rate without treatment. The trial court also made it clear that it did not find
the defendant to be credible. We see no reason to disturb the trial court’s decision and affirm the
denial of placement in the CAPP.

                                          CONCLUSION

        From our review of the record, we hold that the trial court properly applied enhancing factor
(4) and properly refused to apply mitigating factors (1), (4), and (10). In addition, we hold that the
trial court’s denial of placement in the CAPP was properly supported in the record. Therefore, the
defendant has failed to carry his burden of showing that the sentence was improper, and the judgment
of the trial court is affirmed.




                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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