            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                       Assigned on Briefs June 21, 2000

                STATE OF TENNESSEE v. ANDREW D. BLEDSOE

                 Direct Appeal from the Criminal Court for Davidson County
                     No. 98-C-1908    J. Randall Wyatt, Jr., Trial Judge



                  No. M1999-00788-CCA-R3-CD - Filed November 17, 2000


The defendant, after being convicted of reckless homicide, appeals his sentence of three and one-
half years incarceration. He argues that the trial court incorrectly imposed an excessive sentence and
that the trial court erred by not imposing any form of alternative sentence. We hold that a death,
although unfortunate and tragic, standing alone, is insufficient to deny an alternative sentence given
our legislative mandate that Range I standard offenders convicted of any Class D felony are
presumed to be favorable candidates for alternative sentencing. Therefore, after careful review, we
affirm the length of the sentence; however, we modify its manner of service to an alternative
sentence of split confinement of one year and the remaining two and one-half years on probation.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH, JJ., joined.

Jeffrey A. DeVasher and Wendy S. Tucker, Assistant Public Defenders (on appeal); Karl F. Dean,
District Public Defender (at trial), for the appellant, Andrew D. Bledsoe.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Bret Thomas Gunn, Assistant District
Attorney, for the appellee, State of Tennessee.

                                              OPINION

        The defendant, Andrew D. Bledsoe, appeals his three and one-half year sentence after being
convicted in the Davidson County Criminal Court for violation of Tennessee Code Annotated
section 39-13-215, reckless homicide, a Class D felony. On appeal, the defendant asks this Court
to find that his three and one-half year sentence was excessive, as the trial court failed to properly
find and apply certain mitigating factors. Further, the defendant asserts that the trial court incorrectly
failed to impose any form of alternative sentence. After careful review, we affirm the length of the
sentence. However, we modify its manner of service to an alternative sentence of split confinement
of one year and the remaining two and one-half years on probation.

                                                Facts

        The defendant was tried for first degree murder and found guilty of reckless homicide. At
trial and in its brief, the State submits facts that contradict the defendant’s version and that are
presented in a more sinister light. It appears, by their verdict, that the jury more closely accredited
the defendant’s version of the facts than the State’s. Therefore, for background purposes, we set
forth the relevant portion of the statement of evidence as contained in the defendant’s brief:

       Charged with premeditated first degree murder, the defendant was convicted of the
       lesser-included offense of reckless homicide. The charge resulted from a shooting
       incident that occurred during the early morning hours of April 29, 1998, at a
       residence the defendant shared with a friend in Nashville. The defendant
       acknowledged shooting the victim, but maintained that the shooting was an accident.

       The defendant and the victim, Manuelito “Dino” Silva, were friends who had
       attended high school together, and had known each other for approximately ten years.
       At the time of the incident, both the defendant and the victim were frequent cocaine
       users. The victim had owed money to the defendant for cocaine purchased more than
       a year prior to the incident, but the defendant had not attempted to collect the debt
       for some time.

       The defendant was known by his friends to be extremely careless with guns. He
       accidentally shot himself in the leg on one occasion, and accidentally discharged his
       gun on another occasion in his bedroom when he lived with his parents. The
       defendant’s gun, a .44 caliber revolver, had a malfunctioning chamber, which would
       not rotate. The defendant habitually kept his malfunctioning chamber empty, and
       kept his gun set on this chamber, so that he could pull the trigger without the gun
       firing. He also would frighten his friends by pointing the gun at them and pulling the
       trigger when the gun was set on the empty, malfunctioning chamber. At trial, expert
       witnesses for both the prosecution and defense verified that the cylinder of the
       defendant’s gun would not rotate when the gun was set with the malfunctioning
       chamber under the hammer.

        On the evening in question, the victim and one of the defendant’s roommates, Jimmy
        Joe Sanders, were drinking and using cocaine in Sanders’ den in the residence. The
        defendant, along with his friend Chris Nightingale, was also drinking and using
        cocaine in the defendant’s room in the same residence. The only bathroom in the
        residence was adjacent to Sanders’ den, and the defendant would casually converse
        with Sanders and the victim when he periodically needed to use the bathroom that
        evening.

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       The defendant testified at trial that when he went to the bathroom for the final time
       that evening, he noticed that Sanders and the victim were watching an action movie,
       and that Sanders was showing the victim his (Sanders’) gun, a .357 caliber revolver.
       The defendant then went into his room to get his gun and brought it to show Sanders
       and the victim. He testified that he thought he had set the gun on the empty chamber,
       as was his custom. He pointed the gun at the victim and pulled the trigger, intending
       to play a joke and scare the victim. Unbeknownst to the defendant, however, the gun
       was fully loaded. The victim was shot in the upper left arm, with the bullet re-
       entering his chest.

       Sanders immediately called 911, but left the residence shortly thereafter. The
       defendant ran to his bedroom and told Nightingale to leave, then returned to Sanders’
       den and attended to the victim. The 911 operator called back twice, and the
       defendant answered the phone. He told the operator that he had accidentally shot the
       victim. Medical personnel arrived at the residence shortly thereafter, and transported
       the victim to the hospital, where he died.

       The defendant remained on the scene. When police arrived, he immediately stated
       that he had accidentally shot the victim. The defendant subsequently gave a tape
       recorded statement at police headquarters, during which he also acknowledged
       accidentally shooting the victim.

        The defendant was indicted by the Grand Jury of Davidson County, Tennessee on August
21, 1998 for first degree murder. The defendant pled not guilty and was found guilty by a jury for
the lesser-included offense of reckless homicide. A sentencing hearing was held on August 27,
1999. At the conclusion of the sentencing hearing, the trial court sentenced the defendant as a Range
I standard offender, to three (3) years, six (6) months continuous incarceration. The defendant’s
appeal is timely before this Court and the defendant asserts two issues: (1) The trial court’s sentence
was excessive, as the trial court failed to properly apply certain mitigating factors and (2) the trial
court incorrectly denied the defendant some form of alternative sentence.

                                              Analysis

                                        Length of Sentence

         The defendant first challenges his length of sentence by asserting that the trial court failed
to consider certain mitigating factors and incorrectly weighed the enhancing and mitigating factors.
This Court’s review of the sentence imposed by the trial court is de novo with a presumption of
correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative
showing in the record that the trial judge considered the sentencing principles and all relevant facts
and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However, if the trial court
fails to comply with the statutory directives, there is no presumption of correctness. State v. Poole,
945 S.W.2d 93, 96 (Tenn. 1997).

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        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:
        (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
        presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
        alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
        [e]vidence and information offered by the parties on the enhancement and mitigating
        factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
        to make in the defendant’s own behalf about sentencing.

         If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses shall be
the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn.
1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors
do exist, a trial court should start at the minimum sentence, enhance the minimum sentence within
the range for enhancement factors, and then reduce the sentence within the range for the mitigating
factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the
statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial
court complies with the purposes and principles of the sentencing act and its findings are supported
by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,
848 (Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210 Sentencing Commission
Comments.

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and 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.
Fletcher, 805 S.W.2d at 789.

        First, we find that this sentence is entitled to the presumption of correctness. At the
sentencing hearing, the trial court, applying Tennessee Code Annotated section 40-35-114(9), found
one applicable enhancement factor: the defendant possessed or employed a firearm during the
commission of the offense. Although the defendant concedes the application of the enhancing factor
found by the trial court, the State asserts that the trial court should have applied two other enhancing
factors under Tennessee Code Annotated section 40-35-114(1) & (10): that the defendant has a
previous history of criminal convictions or behavior in addition to those necessary to establish the
appropriate range; and that the defendant had no hesitation about committing a crime when the risk
to human life was high. The trial court considered the State’s assertions and concluded that these
factors did not apply. We find no error in the trial court’s conclusion.

        Next, the trial court found that three mitigating factors, Tennessee Code Annotated section


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40-35-113(6), (10), and (11), applied: (1) the defendant lacked substantial judgment because of his
age; (2) the defendant assisted the authorities in locating or recovering any property or person
involved in the crime; and (3) the defendant, although guilty of the crime, committed the offense
under such unusual circumstances that it is unlikely that a substantial intent to violate the law
motivated the criminal conduct. The defendant asserts that the trial court erred by not applying two
additional mitigating factors under Tennessee Code Annotated section 40-35-113(3) and (4): that
substantial grounds exist tending to excuse or justify the defendant’s criminal conduct, though failing
to establish a defense; and that the defendant has no prior criminal record and has undergone
substance abuse treatment. The trial court adequately considered the defendant’s assertion before
determining the factors inapplicable. We find no error in this determination.

        After determining which enhancing and mitigating factors applied, the trial court, pursuant
to Tennessee Code Annotated section 40-35-210(e), weighed the appropriate factors to determine
the sentence. Most notably, the trial court gave great weight to the one enhancing factor stating: “I
do think the way this firearm was used and the way that it had been used before, and the fact that it
was used in the commission of this offense is an enhancement factor. And the court intends to give
it substantial weight.” After discussing the appropriate mitigating factors, the court concluded:

       [T]his court is of the opinion [that the defendant] should be sentenced to a sentence
       of three and one-half years on this case. That’s a penalty just a little less than the
       maximum. And I think the circumstances call for that. In other words, it’s three
       years and six months is the sentence that the court is giving, considering the
       aggravating factors and the mitigating factors. It’s not the maximum, but it’s more
       near that than it is the minimum.

        In this case, the trial court followed the statutory sentencing procedure, imposed a lawful
sentence after considering and weighing the proper factors and principles set out under sentencing
law, and the trial court’s findings of fact are supported by the record. Therefore, we find no error
in the defendant’s three and one-half year sentence.

                                        Alternative Sentence

         Second, the defendant challenges the trial court’s denial of alternative sentencing.
Specifically, the defendant argues that the trial court erred in sentencing him to incarceration and
denying him any form of alternative sentence. As noted above, this Court’s review of the sentence
imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d). This presumption is conditioned upon an affirmative showing in the record that the trial
judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives,
there is no presumption of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93,
96 (Tenn. 1997). The burden is upon the appealing party to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments.


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        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. 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).

       A court may also consider the mitigating and enhancing factors set forth in Tennessee Code
Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations.
Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
Additionally, a court should consider the defendant’s potential or lack of potential for rehabilitation
when determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5);
Boston, 938 S.W.2d at 438.

        There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Boggs, 932 S.W.2d 467, 476-77 (Tenn. Crim. App. 1996). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case
basis, tailoring each sentence to that particular defendant based upon the facts of that case and the
circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

         A defendant is eligible for probation if the sentence received by the defendant is eight years
or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). The defendant in this
case was sentenced as a Range I standard offender to three and one-half years. A trial court must
presume that a defendant sentenced to eight years or less and for whom incarceration is not a priority
is subject to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App.
1993). Therefore, this defendant is not only eligible for probation, but also is presumed to be a
favorable candidate for alternative sentencing.

        It is further presumed that a sentence other than incarceration would result in successful
rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380. A defendant presumed
to be a favorable candidate for alternative sentencing has the burden of establishing suitability for
total probation. Tenn. Code Ann. § 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn.
Crim. App. 1996). Although probation must be considered, “the defendant is not automatically
entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b), Sentencing Commission
Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant seeking
full probation bears the burden on appeal of showing the sentence imposed is improper, and that full
probation will be in the best interest of the defendant and the public. State v. Baker, 966 S.W.2d
429, 434 (Tenn. Crim. App. 1997).

        In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant's criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of the defendant and the public.
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim.

                                                 -6-
App. 1995). The defendant's lack of credibility is also an appropriate consideration and reflects on
a defendant's potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.
1994).

        Probation may be denied based solely upon the circumstances surrounding the offense. State
v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995); Hartley, 818 S.W.2d at 374. However,
the circumstances of the offense as committed must be especially violent, horrifying, shocking,
reprehensible, offensive or otherwise of an excessive or exaggerated degree; and the nature of the
offense must outweigh all factors favoring probation. Hartley, 818 S.W.2d at 374-75.

        In determining if incarceration is appropriate, a trial court considers (1) the need to protect
society by restraining a defendant having a long history of criminal conduct; (2) the need to avoid
depreciating the seriousness of the offense; (3) whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses; and (4) whether less restrictive measures
have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-
103(1); see also Ashby, 823 S.W.2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim.
App. 1997); State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).

        In this case, the trial court found that only one of the factors existed for determining
incarceration appropriate. In reaching this conclusion, the court stated: “[T]he Court is of the
opinion that it would demean and depreciate the seriousness of the loss of a human life for me to put
you on probation today.” While this is an important factor to consider, it is not the sole factor to
consider in determining whether incarceration is appropriate. In fact, death of another resulting from
the defendant’s conduct does not alone justify a denial of probation. State v. Bingham, 910 S.W.2d
448, 456 (Tenn. Crim. App. 1995). The trial court relied upon this fact in imposing incarceration
and, therefore, never considered an alternative sentence.

         Reliance upon the fact that someone died as a result of the defendant’s conduct was the only
reason the trial court concluded that the defendant should receive incarceration and not alternative
sentencing. We note the obvious fact that death is an essential element in all homicide cases and our
Legislature has classified some of these homicides as Class C, D and E felonies, including the crime
involved here, reckless homicide. See Tenn. Code Ann. §§ 39-13-212, -213, & -215. The legislature
further mandated that 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. Tenn. Code Ann. § 40-35-
102(6). The trial court’s reliance upon the mere fact of loss of human life, an element in the crime,
to satisfy the need to avoid depreciating the seriousness of the offense circumvents the Legislature’s
intent that standard offenders convicted of Class D felonies be presumed favorable candidates for
alternative sentencing. The trial court made no other findings in support of incarceration and denial
of alternative sentencing. Therefore, we hold that the trial court’s findings in support of its denial
of alternative sentencing were insufficient.

       It is our opinion that the defendant, pursuant to Tennessee Code Annotated section 40-35-
306, should receive an alternative sentence of split confinement of one year and the remaining two


                                                 -7-
and one-half years on probation.

                                           Conclusion

        For the reasons set forth above, we affirm the length of the sentence, but modify its manner
of service and remand to the trial court for further proceedings consistent with this opinion.




                                                      ____________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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