           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                     Assigned on Briefs April 9, 2002

            STATE OF TENNESSEE v. SHANTA LAVETT MCKINNEY

                             Appeal from the Circuit Court for Tipton County
                                 No. 4122     Joseph H. Walker, Judge



                           No. W2001-01832-CCA-R3-CD - Filed May 8, 2002


The Defendant, Shanta Lavett McKinney, pled guilty to one count of automobile burglary; one count
of theft over $1000; one count of misdemeanor assault; and one count of theft under $500. He was
sentenced as a Range I standard offender to one year, six months for the auto burglary; three years
for the theft over $1000; eleven months, twenty-nine days for the assault; and eleven months,
twenty-nine days for the theft under $500, all sentences running concurrently. Under separate
indictment, the Defendant pled guilty to four counts of aggravated burglary; one count of theft
between $500 and $1000; and three counts of theft under $500. He was sentenced as a Range I
standard offender to five years for each of the burglaries; one year six months for the theft over $500;
and eleven months, twenty-nine days for each of the thefts under $500. These sentences were
ordered to run concurrently with each other, but consecutively to the previously mentioned
sentences, for an effective sentence of eight years in the Department of Correction. In this direct
appeal the Defendant challenges both the length of his felony sentences1 and the trial court’s denial
of an alternative sentence. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT, JR., JJ., joined.

Gary F. Antrican, Somerville, Tennessee, for the appellant, Shanta Lavett McKinney.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
and Elizabeth Rice, District Attorney General, for the appellee, State of Tennessee.




       1
           The Defen dant do es not contest the trial court’s imposition o f consec utive senten ces.
                                              OPINION

        The Defendant’s four aggravated burglary convictions are Class C felonies, with a sentencing
range of three to six years. See Tenn. Code Ann. §§ 39-14-403(b); 40-35-112(a)(3). His theft over
$1000 is a Class D felony, with a sentencing range of two to four years; and the thefts between $500
and $1000 are Class E felonies, with a sentencing range of one to two years. See id. §§ 39-14-
105(3), (2); 40-35-112(a)(4), (5). The auto burglary is also a Class E felony. See id. § 39-14-402(d).
The Defendant’s remaining convictions are misdemeanors, and the Defendant does not challenge
his sentences on those offenses.

       The record does not contain a transcript of the guilty plea proceedings of these various
convictions. It is apparent from the transcript of the sentencing hearing and the documents contained
in the technical record that a large amount of property was taken during the course of the
Defendant’s crime spree.

        In sentencing the Defendant, the trial court applied as enhancement factors that the Defendant
has a previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range; that he has a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community; and that he was adjudicated to have
committed delinquent acts as a juvenile that would constitute felonies if committed by an adult. See
Tenn. Code Ann. § 40-35-114(1), (8), (20). As a mitigating factor, the trial court found that the
Defendant’s conduct neither caused nor threatened serious bodily injury. See id. § 40-35-113(1).
Finding that the enhancement factors outweighed the mitigating factor, the trial court sentenced the
Defendant to five years for each of the aggravated burglaries; two years more than the minimum but
one year less than the maximum. For the theft over $1000, the trial court sentenced the Defendant
to three years, a midrange sentence. For the thefts over $500 but less than $1000, the Defendant also
received a midrange sentence.

        The Defendant now argues that the trial court weighed the enhancement factors too heavily
and failed to consider in mitigation that the Defendant is only twenty years old, that he is remorseful,
and that his crimes were committed in an effort to provide necessities for his three children.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. See 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 relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement

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made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        The presumptive sentence for Class C, D and E felonies is the minimum sentence in the
range, increased as appropriate for enhancement factors, and decreased as appropriate for mitigating
factors. See Tenn. Code Ann. § 40-35-210(c), (e). So long as the trial court complies with the
purposes of sentencing and makes findings supported by the record, the weight given to applicable
enhancement and mitigating factors is left to the sound discretion of the trial court. See State v.
Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997), overruled on other grounds, State v. Hooper,
29 S.W.3d 1, 8 (Tenn. 2000).

        We find that the record supports the trial court’s imposition of mid-range sentences. The
Defendant’s prior criminal record includes two misdemeanors committed while an adult and
numerous juvenile convictions, including at least two which would have been felonies if committed
as an adult. The Defendant’s record therefore supports application of enhancement factors (1) and
(20). See Tenn. Code Ann. § 40-35-114(1), (20); State v. Jackson, 60 S.W.3d 738, 742 (Tenn.
2001). Furthermore, the Defendant was serving a suspended sentence when he committed the
aggravated burglaries and the theft over $500 but less than $1000, supporting the application of
enhancement factor (8) on these offenses. See Tenn. Code Ann. § 40-35-114(8). The proof in
support of mitigation is marginal. Given that the trial court’s findings of fact are supported by the
record, and that the trial court did not abuse its discretion in the weight it assigned to mitigating and
enhancement factors, we decline to adjust the length of the Defendant’s sentences.

        The Defendant also contends that the trial court should have ordered him to serve his
sentence on Community Corrections, rather than incarcerated in the Department of Correction. In
rejecting an alternative sentence for the Defendant, the trial court found that the Defendant had been
placed on release status several times as a juvenile, without success; was on release status at the time
he committed several of the instant offenses; and that he “is unemployed, [and has] no stable home
life.” Finding that an alternative sentence “would not be appropriate due to the nature of the offenses
[and] the extensiveness of the criminal activity of [the Defendant] going back over a number of
years,” the trial court denied alternative sentencing.

        A defendant who “is 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

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of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); State v. Lane, 3 S.W.3d 456, 462
(Tenn. 1999). Guidance regarding what constitutes “evidence to the contrary” which would rebut
the presumption of alternative sentencing can be found in Tennessee Code Annotated § 40-35-
103(1), which sets forth 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[.]

See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 170 (Tenn.
1991).

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. § 40-35-103(5).

         The Community Corrections Act was meant to provide an alternative means of punishment
for “selected, nonviolent felony offenders . . . , thereby reserving secure confinement facilities for
violent felony offenders.” Tenn. Code Ann. § 40-36-103(1); see also State v. Ball, 973 S.W.2d 288,
294 (Tenn. Crim. App. 1998). Pursuant to statute, persons who satisfy all of the following minimum
criteria are eligible for participation in a community corrections program:
         (1) Persons who, without this option, would be incarcerated in a correctional
         institution;
         (2) Persons who are convicted of property-related, or drug/alcohol-related felony
         offenses or other felony offenses not involving crimes against the person as provided
         in title 39, chapter 13, parts 1-5;
         (3) Persons who are convicted of nonviolent felony offenses;
         (4) Persons who are convicted of felony offenses in which the use or possession of
         a weapon was not involved;
         (5) Persons who do not demonstrate a present or past pattern of behavior indicating
         violence; [and]
         (6) Persons who do not demonstrate a pattern of committing violent offenses[.]
Tenn. Code Ann. § 40-36-106(a). Additionally, persons who do not otherwise satisfy the minimum
criteria and who would usually be considered unfit for probation due to histories of chronic alcohol
abuse, drug abuse, or mental health problems, but whose special needs are treatable and could be
served best in the community may be considered eligible for participation in a community
corrections program. Id. § 40-36-106(c).



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         However, even though an offender meets the requirements for eligibility, he or she is not
automatically entitled to such relief. See Ball, 973 S.W.2d at 294; State v. Taylor, 744 S.W.2d 919,
922 (Tenn. Crim. App. 1987). Rather, the statute provides that the criteria shall be interpreted as
minimum standards to guide a trial court’s determination of whether that offender is eligible for
community corrections. See Tenn. Code Ann. § 40-36-106(d). This Court has previously noted that
a defendant’s rehabilitative potential is central to the process of selecting those offenders to place
in Community Corrections. See State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997).
Furthermore, “given their ability to review the offender’s demeanor and characteristics first hand,
trial courts are in the best position to ascertain an offender’s amenability to a community corrections
program.” Id. Accordingly, this Court will not disturb a trial court’s decision to grant or deny a
Community Corrections sentence absent a clear abuse of discretion. See id. It remains a defendant’s
burden to demonstrate that the sentence of total confinement imposed by the trial court is improper.
See id. at 544. See also Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401.

        We agree that the Defendant meets the minimum eligibility criteria for Community
Corrections and acknowledge that the Community Corrections Supervision Report prepared by
Corrections Management Corporation found the Defendant to be a “suitable candidate” for
Community Corrections. Nevertheless, the record supports the trial court’s determination that the
Defendant is not entitled to an alternative sentence. Past efforts to rehabilitate the Defendant have
failed. He committed several of the instant crimes while on release status. Although the Defendant
is young, he has already compiled a significant criminal history. Incarceration is appropriate, and
this issue is therefore without merit.

       The judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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