        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs September 23, 2003

            STATE OF TENNESSEE v. CHRISTOPHER C. RIGSBY

                      Appeal from the Circuit Court for Bledsoe County
                         No. 56-2001    Thomas W. Graham, Judge



                                No. E2003-01329-CCA-R3-CD
                                     December 29, 2003

The defendant, Christopher C. Rigsby, appeals from the Bledsoe County Circuit Court’s denial of
alternative sentencing following his conviction of aggravated assault. Because the record supports
the trial court’s ordering the defendant to serve the six-year sentence in the Department of
Correction, we affirm.

               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

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

Edward L. Boring, Pikeville, Tennessee, for the Appellant, Christopher C. Rigsby.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General; J.
Michael Taylor, District Attorney General; and Steven Strain, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                           OPINION

                The record reflects that on July 23, 2001, two Bledsoe County officers answered a
disturbance call at the Hideway Lounge, where the bartender reported that the defendant had created
the disturbance and had been asked to leave the bar. The officers found the defendant lying on the
ground outside the bar, but when they approached, he ran into the nearby foliage. Initially, he
declined to come out when the officers ordered him to do so. When one of the officers, however,
turned his back to the defendant’s location, the defendant charged the officer with a knife in his
hand. The officer suppressed the attack by hitting the defendant with a flashlight, and after a
struggle, the two officers subdued and arrested the defendant.

              The defendant pleaded guilty to aggravated assault, a Class C offense. See Tenn.
Code Ann. § 39-13-102(a)(1)(B), (d)(1) (2003) (aggravated assault, a Class C felony, is committed
by one who knowingly commits an assault and uses or displays a deadly weapon). He submitted the
sentencing issues to the determination of the trial court.

                At the sentencing hearing, the defendant, 36 years of age, testified that he had been
married for six years. He had a four-year-old child; a thirteen-year-old child had recently been killed
when a car fell from a jack onto the child. The defendant worked and supported his wife, his child,
his stepson, and his mother-in-law, who suffered from cancer. The defendant testified that he had
battled alcoholism since he was a young man, and that he had completed a treatment program in
prison, as well as other residential treatment programs. He had completed a program between July
23, 2001, and the sentencing hearing, and he had not consumed alcohol in about a year. He admitted
in his statement appearing in the presentence report that, on July 23, 2001, he had been taking
medication for depression, and against medical instructions, he had consumed alcohol, which in
combination with the medication caused him to be “psychotic.” He stated that he did not remember
the events of that evening and deferred to the officers’ account of those events.

               The defendant’s wife testified at the sentencing hearing that the defendant was an
episodic drinker who never drank at home. She knew that he was depressed and that he would go
out and drink. She affirmed his positive contributions as a husband and father and testified that she
and the family relied upon him for support.

               Significantly, the presentence report revealed that prior to July 23, 2001, the
defendant had garnered eight prior misdemeanor and four felony convictions. The felonies consisted
of a 1987 robbery conviction and three convictions for escape. He had escaped twice from jail and
once from prison. Because of the escapes, his robbery conviction parole was revoked three times.
His misdemeanor convictions included an assault, and the defendant was on probation for DUI and
possession of marijuana when he committed the aggravated assault that is the subject of the
conviction now under review.

                At the conclusion of the sentencing hearing, the trial court imposed a six-year
sentence, which the defendant does not challenge on appeal. In addressing the manner of service of
the sentence, the trial judge expressed concern about the defendant’s family’s plight, but the judge
explained that his course of action was essentially determined by the nature and number of the
defendant’s prior convictions, including one which placed him on probation at the time he
committed the instant offense.

                 On appeal, the defendant claims that the state failed to overcome the presumption that
he was a favorable candidate for alternative sentencing. He claims entitlement to full probation or
in the alternative, to a sentence of split confinement. We are unpersuaded and affirm the trial court’s
imposition of an incarcerative sentence.

               When there is a challenge to the length, range, 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 trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This


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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). “The burden of showing that the sentence is improper is upon the
appellant.” Id. In the event the record fails to demonstrate the required consideration by the trial
court, review of the sentence is purely de novo. Id. If appellate review reflects the trial court
properly considered all relevant factors and its findings of fact are adequately supported by the
record, this court must affirm the sentence, “even if we would have preferred a different result.”
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                 In making its sentencing determination, the trial court, at the “conclusion of the
sentencing hearing” and after determining the range of sentence and the specific sentence, then
determines the propriety of sentencing alternatives by considering (1) the evidence, if any, received
at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing
and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal
conduct involved; (5) evidence and information offered by the parties on the enhancement and
mitigating factors; (6) any statements the defendant wishes to make in the defendant’s behalf about
sentencing; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a),
(b), -103(5) (2003); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

                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 of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (2003). Our sentencing law
also provides that “convicted felons committing the most severe offenses, possessing criminal
histories evincing a clear disregard for the laws and morals of society, and evincing failure of past
efforts at rehabilitation, shall be given first priority regarding sentences involving incarceration.”
Id. § 40-35-102(5) (2003). Thus, a defendant who meets the above criteria is presumed eligible for
alternative sentencing unless sufficient evidence rebuts the presumption. However, the Act does not
provide that all offenders who meet the criteria are entitled to such relief; rather, it requires that
sentencing issues be determined by the facts and circumstances presented in each case. See State v.
Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

              In that regard, the defendant, a Range I offender, enjoyed the presumption of
favorable candidacy for alternative sentencing for his Class C felony. See Tenn. Code Ann. §
40-35-102(6) (2003). A sentence involving confinement is appropriate when

                      (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 especially suited to
               provide an effective deterrence to others likely to commit similar
               offenses; or



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                        (C) Measures less restrictive than confinement have frequently
                or recently been applied unsuccessfully to the defendant.

Id. § 40-35-103(1)(A)-(C) (2003).

                Moreover, the defendant was eligible for probation, see id. § 40-35-306(2) (2003);
however, the defendant has the burden of establishing that he is entitled to full probation. Id. §
40-35-303(b) (2003); State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999). In evaluating
a defendant”s bid for probation, the sentencing court appropriately examines such factors as (1) “the
nature and [circumstances] of the criminal conduct involved,” Tenn. Code Ann. § 40-35-210(b)(4)
(2003); (2) the potential or lack of potential for rehabilitation, id. § 40-35-103(5) (2003); (3) whether
a fully probated sentence would depreciate the seriousness of the offense, id. § 40-35-103(1)(B)
(2003); and (4) whether a sentence other than full probation would effectively deter others likely to
commit similar crimes, id.

                We conclude that the defendant failed to demonstrate an entitlement to full probation.
In particular, we discern that the potential for rehabilitation was not established. The defendant’s
history of escaping from lawful custody and his commission of the current offense while on
probation belie his potential for rehabilitation.

                Further, the record in this case amply demonstrates that the presumption of favorable
candidacy for alternative sentencing in general was soundly rebutted by the defendant’s extensive
history of lawless behavior. See Tenn. Code Ann. § 40-35-103(1)(A) (2003) (confinement may be
based on necessity to “protect society by restraining a defendant who has a long history of criminal
conduct”). Also, the presumption was overcome by the defendant’s being on probation when he
committed the present offense. See id. § 40-35-103(1)(C) (2003) (confinement may be based upon
the fact that “measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant”).

               We hold that the trial court’s determination that the defendant should serve his
sentence in the Department of Correction is supported by the record. As such, that determination
is affirmed.



                                                        ____________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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