         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 12, 2003

                STATE OF TENNESSEE v. CHRISTINA B. JONES

                Direct Appeal from the Criminal Court for Williamson County
                         No. I-1101-357-A Donald P. Harris, Judge



                      No. M2002-02428-CCA-R3-CD - Filed June 23, 2003



JOSEPH M. TIPTON, J., dissenting.

       I respectfully disagree with some of the reasoning and the result reached in the majority
opinion. I do not believe that the state overcame the presumption that the defendant is a favorable
candidate for alternative sentencing. I would hold that she is entitled to a sentence that does not
involve time confined in jail. In this respect, I disagree with the view in the majority opinion as to
what constitutes an alternative sentence.

        The majority opinion states that a sentence involving split confinement constitutes an
“alternative sentence.” Other panels of this court have stated the same regarding split or periodic
confinement. Some opinions state that alternative sentencing includes split and periodic
confinement without providing any explanation of this conclusion. See, e.g., Ernest Lee Lands, Jr.
v. State, No. 03C01-9404-CR-00145, Blount County (Tenn. Crim. App. May 19, 1995); State v.
Alvin Lee Lewis, No. 01C01-9404-CC-00125, Williamson County (Tenn. Crim. App. Mar. 14,
1995). Several opinions have referred to Tenn. Code Ann. § 40-35-104 to reach a similar
conclusion. See, e.g., State v. Marjorie Jeanette Sneed, No. 03C01-9410-CR-00369, Blount County
(Tenn. Crim. App. Oct. 17, 1995); State v. Danny Allison, No. 03C01-9403-CR-00106, Jefferson
County (Tenn. Crim. App. Mar. 23, 1995). Section 104 is entitled “Sentencing Alternatives” and
subsection (c) provides the alternatives available to the courts in sentencing defendants. I cannot
equate alternative sentencing to sentencing alternatives.

        Recently, a panel of this court stated that an alternative sentence is one that does not include
total confinement. State v. Sherry L. Williams, No. E2002-01288-CCA-R3-CD, Sullivan County
(Tenn. Crim. App. Feb. 13, 2003). The opinion cites State v. Adrianne Elizabeth Noles, No. W2002-
01558-CCA-R3-CD, Haywood County (Tenn. Crim. App. Dec. 12, 2002), and “generally” State v.
Fields, 40 S.W.3d 435 (Tenn. 2001). Noles states, “An alternate sentence is any sentence that does
not involve total confinement. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001).” Noles,
slip op. at 3. However, in reading Fields, I find nothing in the way of analysis, holding, or dictum
to support such a statement. The closest is when the supreme court notes that this court affirmed the
trial court’s decision “to forego alternative sentencing in favor of a sentence of total confinement .
. . .” Fields , 40 S.W.3d at 438. And near the end of the opinion, the court states, “Without specific
proof to justify a sentence of incarceration, we find that the defendant Fields remains a favorable
candidate for alternative sentencing.” Id. at 442.

       The question to be resolved is what is meant by an alternative sentence, i.e., to what is the
sentence an alternative. One possible interpretation is that the alternative is a sentence to
confinement in the Department of Correction (DOC) prison system. Support stems from the
following provisions of Tenn. Code Ann. § 40-35-102:

                       (5) In recognition that state prison capacities and the funds to
               build and maintain them are limited, 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
               sentencing involving incarceration; and

                      (6) A defendant who does not fall within the parameters of
               subdivision (5) and 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.

The reference to subdivision (5) in (6) might indicate that (6) is meant to provide a presumption that
the defendant should not be sent to prison, as opposed to the local jail or workhouse.

       However, Tenn. Code Ann. § 40-35-103 provides, in part, the following:

                      (1) Sentences involving confinement should be based on 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.




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With the subsection referring to sentences involving confinement, not to confinement, I believe that
the considerations must exist to some degree before any confinement may be required. Also, in State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991), our supreme court viewed the existence of one of the
considerations in § -103(1) to be necessary before the presumption in § -102(6) may be overcome.1
From Ashby, I conclude that the presumption in § -102(6) relates to an alternative sentence that is
an alternative to any confinement, be it prison or jail. A similar approach was used by this court in
State v. Fletcher in which the court stated that “a defendant who does not meet the parameters of
T.C.A. § 40-35-102(5) is vested with a rebuttable presumption that a sentence other than
incarceration would result in successful rehabilitation.” 805 S.W.2d 785, 787 (Tenn. Crim. App.
1991); accord State v. Hartley, 818 S.W.2d 370, 373-74 (Tenn. Crim. App. 1991). Needless to say,
I do not believe that the proposition that the alternative is total confinement is supported by the
Sentencing Act or published opinions.

        Given my conclusion regarding the presumption for alternative sentencing, I would hold that
the defendant in the present case should receive a sentence that does not include confinement. I do
not believe that the presumption has been overcome.

         First, I note that the trial court stated that the enhancing and mitigating factors were not at
issue. To the contrary, Tenn. Code Ann. § 40-35-210(b) provides that such factors are to be
considered in determining sentencing alternatives, which obviously include probation and a
community corrections sentence. In this respect, the record reflects that the offense did not cause
or threaten bodily injury. Also, although she was arrested after her arrest in this case for another
theft occurring shortly before the present offense, she successfully completed a probationary term
in that case before her present sentencing. The state belittles her successful completion by noting
that she was motivated because of her concern for sentencing in the instant case. I see the opposite,
though. She has proven she is motivated to comply with the requirements of probation. On the other
hand, the record reflects that the codefendant got into further trouble while on probation and on bond
in this case.

        The majority opinion states that the defendant denied responsibility at the sentencing hearing,
but I see no such denial. In their testimony, the defendant and her codefendant differed in their view
of the extent of the defendant’s culpability, but she was not denying her guilt. Most importantly, the
trial court stated that it was unable to conclude who was telling the truth about the various

         1
          Ashby dealt with the original version of Tenn. Co de A nn. § 40-35-102(6 ) (1989 Sup p.) which provided the
following:

                            Defendants who do not fall within the parameters of subdivision (5) and
                  receive a sentence of eight (8) years or less are presumed in the absence of evidence
                  to the contrary to po ssess capab ilities for rehabilitative alternative sentencing
                  options in the discretion of the court and these are specifically encouraged.

Thus, the pre sent law lim its the presump tion by felony class and offender status. However, this court has viewed the
presumption for a no n-incarc erative sentenc e to be stronger. See State v. Fletcher, 805 S.W .2d 785, 788 n.2 (Tenn.
Crim. App . 199 1).

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differences. In other words, the trial court did not find her to be untruthful and I fail to see how this
court can do otherwise. In any event, I do not see how these circumstances overcome the
presumption for alternative sentencing.

         The record does support the trial court’s concern regarding the defendant’s lack of education,
lack of stable employment, and birth of a child out of wedlock while the case was pending.
However, I view these concerns to relate more to the nature of supervision and rehabilitation of the
defendant than to her confinement. In consideration of the foregoing, I would remand the case to
the trial court for imposition of a sentence that is geared to rehabilitate the defendant in order to
make her a more productive member of society but that does not include incarceration.



                                                        ____________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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