          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NOVEMBER
                      JACKSON SESSION, 1996




STATE OF TENNESSEE,              )
                                 )   No. 02C01-9507-CR-00184
      Appellee                   )
                                 )   SHELBY COUNTY
vs.                              )
                                 )   Hon. JOHN P. COLTON, JR., Judge
CHARLES P. GRIGSBY,              )

      Appellant
                                 )
                                 )
                                     (Aggravated Burglary)
                                                                  FILED
                                                                   March 26, 2008

                                                                  Cecil Crowson, Jr.
For the Appellant:                   For the Appellee:                 Appellate Court Clerk

ON APPEAL:                           Charles W. Burson
Craig V. Morton, II                  Attorney General and Reporter
Attorney at Law
212 Adams Avenue                     Sarah M. Branch
Memphis, TN 38103                    Assistant Attorney General
                                     Criminal Justice Division
AT TRIAL:                            450 James Robertson Parkway
Robert J. Ross, II                   Nashville, TN 37243-0493
Attorney at Law
100 North Main St., Suite 3310
Memphis, TN 38103                    John W. Pierotti
                                     District Attorney General

                                     James A. Lammey
                                     Asst. District Attorney General
                                     Third Floor
                                     Criminal Justice Complex
                                     201 Poplar Avenue
                                     Memphis, TN 38103


OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                      OPINION



       The appellant, Charles P. Grigsby, entered an Alford plea to one count of

aggravated burglary in the Shelby County Criminal Court and received, pursuant

to a plea agreement, a sentence of eight years as a range II offender. The

manner of service of the appellant’s sentence was submitted to the trial court for

its determination. Following the sentencing hearing, the trial court denied the

appellant’s request for an alternative sentence and ordered that his sentence be

served in the Department of Correction. The appellant appeals this sentencing

decision, specifically contending that the trial court erred by failing to impose a

sentence under the Community Corrections Act.



       After a review of the record, we affirm the judgment of the trial court.




                                 I. BACKGROUND



       On November 19, 1994, the appellant entered the home of Kay Owen by

breaking a latch on a side door of Ms. Owen’s home. At the time of the "break

in," Ms. Owen was raking leaves in her backyard. Hearing a noise from within

her home, she went inside the house to investigate. Upon entering her living

room, she saw the appellant descending the staircase. The appellant stated

"Where's my mom?" Surprised by the intruder, Ms. Owen began screaming for

help. The appellant fled the home.



       At the sentencing hearing, the appellant asserted that he had no intention

of burglarizing Ms. Owen's home. Rather, he insisted that the entire episode




                                          2
was a misunderstanding.1 He explained that he entered the residence, believing

the house to be the residence of Mr. Horner, in search of his roommate, Ted

Turner. The appellant testified that he drove his car to the scene and parked the

vehicle in front of Ms. Owen's house. However, he admitted that, when he fled,

he did not return to his car, but went straight to his home. The appellant

conceded that he was intoxicated when he entered the Owen residence. To

contradict the appellant's testimony, the victim, Ms. Owen, testified that Mr.

Horner, the man referenced by the appellant, does not know the appellant.

Moreover, she explained that, at the appellant's preliminary hearing, Mr. Horner

testified that he witnessed the appellant "casing her house." However, she

stated that the appellant did not remove anything from her home.



        The proof also established that, on the date that the appellant entered an

Alford plea to aggravated burglary in the instant case, he was on probation for

seven previous convictions of aggravated burglary in Shelby County.2 In

addition, the appellant was previously convicted for aggravated burglary in

Davidson County.



        Additionally, the presentence report revealed that the appellant is thirty-

three years old, divorced, and the father of two daughters.3 He "dropped out" of

high school in the ninth grade, but, at the time of the sentencing hearing, had

taken the test for his GED and was currently awaiting the test results. At the

time of the hearing, the appellant was employed as a painter by U.E. Jones Paint

Company, and had been so employed since April 20, 1993. Prior to this


        1
          He stated "I wasn't there to do nothing. I was there to find som eone and m istakenly went
into the wrong house and I apologize."

        2
         Following the sentencing hearing in this case, a violation of probation hearing was held
concerning the appellant's seven suspended sentences for aggravated burglary. At the
conclusion of this hearing, the trial court revoked the suspended sentences and reinstated the
appellant’s original five year sentences for each conviction. Additionally, the court ordered the
reinstated sentences to run concurrently with the eight year sentence in the instant case.

        3
            The report indicates that the appellant's daughters live in Arkansas.

                                                    3
employment, the appellant held positions as a furniture refinisher with T & T

Enterprize and as a handler with Federal Express.



        The trial court denied any form of alternative sentence, stating that he had

considered all the relevant information and testimony.4 In particular, the court

commented that the appellant was on probation when he committed the instant

offense, that the appellant had committed the same type of crime previously, and

that the victim in this case also has rights.




                                            II. Analysis



        The appellant contends that the trial court erred by denying his request for

sentencing under the Community Corrections Act. Specifically, he avers that the

court failed to consider applicable mitigating factors and that the court failed to

determine that the appellant was an eligible offender. A sentence under the

Community Corrections Act is an alternative sentence. See State v. Taylor, 744

S.W.2d 919, 920 (Tenn. Crim. App. 1987). Thus, this court must review an issue

regarding the Community Corrections Act de novo pursuant to Tenn. Code Ann.

§ 40-35-401(d) (1990). Additionally, if the record demonstrates that the trial

court properly considered relevant sentencing principles, a presumption of

correctness attaches to the trial court's determination. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). In the instant case, it is unclear from the record

whether the trial court properly considered sentencing principles. Accordingly,

we are unable to attach the presumption to the trial court's decision. Despite the

inapplicability of this presumption, the appellant maintains the burden of showing

that the sentence to total confinement imposed by the trial court is improper.



        4
         Specifically, the trial court referred to "various letters by friends, records sent by doctors
and letters by doctors." This proof was not included in the record for our review.

                                                   4
Sentencing Commission Comments, Tenn. Code Ann. § 40-35-210(b)(3) (1990).



       In making our review, this court must consider the evidence presented at

the sentencing hearing, the presentence report, the principles of sentencing, the

arguments of counsel, the nature and characteristics of the offense, any

applicable enhancement or mitigating factors, any statements made by the

defendant, and the appellant's potential rehabilitation. Tenn. Code Ann. § 40-35-

102, -103, -210 (1990) and (1994 Supp.). See State v. Moss, 727 S.W.2d 229

(Tenn. 1986). Additionally, since the appellant contends that he should have

been sentenced pursuant to the Community Corrections Act, this court must also

consider the eligibility standards set forth in Tenn. Code Ann. § 40-36-106 (1994

Supp.) and the report of the agency which administers the community

corrections program. Taylor, 744 S.W.2d at 920.



       The appellant first contends that the trial court failed to consider

applicable mitigating factors. Specifically, he argues that the following factors

should apply:

       (1) The defendant's criminal conduct neither caused nor
       threatened serious bodily injury;

       (3) Substantial grounds exist tending to excuse or justify the
       defendant's criminal conduct;

       (8) The defendant was suffering from a mental or physical
       condition that significantly reduced his culpability for the
       offense. . . ;

       (10) The defendant assisted the authorities in locating or
       recovering any property or person involved in the crime;

       (11) The defendant, although guilty of the crime, committed the
       offense under such unusual circumstances that it is unlikely that a
       sustained intent to violate the law motivated his conduct; and

       (13) Any other factor consistent with the purposes of this chapter.


Tenn. Code Ann. § 40-35-113 (1990). The appellant's failure to present any

argument regarding these mitigating factors leaves this court to speculate as to


                                          5
the factual basis to support each factor. After an examination of the record, we

conclude that the appellant's contentions concerning applicable mitigating factors

are without merit. Specifically, as to mitigating factor (3), assuming that the

"excuse" is the appellant's mistake as to where he was, this contention was

contradicted by the victim's testimony. Tenn. Code Ann. § 40-35-113(3). In the

appellant's presentence report, the appellant admits to being in good mental

health. Tenn. Code Ann. § 40-35-113(8). Moreover, there was no stolen

property which the appellant could assist in locating and there is no evidence

before us to support unusual circumstances indicating a lack of intent to violate

the law other than the testimony of the appellant. Tenn. Code Ann. § 40-35-113

(10), (11). Although mitigating factor (1) is applicable, we note the presence of

three enhancement factors, Tenn. Code Ann. § 40-35-114 (1), (8), and (13)

(1994 Supp.).5 We conclude that, with regard to the imposition of an alternative

sentence in the present case, the applicability of mitigating factor (1) is afforded

minimal weight.



       Since a sentence under the Community Corrections Act is an alternative

sentence, supra, we must first determine whether the appellant is a suitable

candidate for alternative sentencing. Especially mitigated or standard offenders

convicted of a class C, D, or E felony and who do not possess a criminal history

evincing a clear disregard for the laws and morals of society and a failure of past

efforts at rehabilitation are presumed to be favorable candidates for alternative

sentencing options, absent evidence to the contrary. Tenn. Code Ann. § 40-35-

102 (5), (6). The appellant was sentenced as a range II, multiple offender. See

Tenn. Code Ann. § 40-35-106 (1990). Moreover, the appellant has a criminal


       5
        Tenn. Code Ann. §40-35-114:
       (1) The defendant has a previous history of crim inal convictions or crim inal
       behavior in addition to those necessary to establish the appropriate range;

       (8) The defendant has a previous history of unwillingness to com ply with the
       conditions of a sentence involving release in the com m unity; and

       (13) The felony was com m itted while on . . . probation.

                                                6
history evincing a clear disregard for the laws of society, and, because the

present offense was committed while on probation, a failure of past efforts at

rehabilitation. Hence, the appellant is not presumed to be a favorable candidate

for alternative sentencing.



        Additionally, Tenn. Code Ann. § 40-35-103(1) (A-C) provides that

confinement of an offender is necessary under the following conditions:

        (A) . . . to protect society by restraining a defendant who has a
        long history of criminal conduct;

        (B) . . . 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.6


In the present case, the trial court found that confinement of the appellant is

necessary based upon the appellant's history of criminal conduct and the failure

of less restrictive measures of punishment. Notwithstanding this determination,

we acknowledge the appellant's contention that the trial court failed to consider

eligibility requirements in denying a sentence to community corrections.

Accordingly, we review the appellant's eligibility under the Community

Corrections Act.




        Our legislature enacted the sentencing alternative of community

corrections to combat the problem of overcrowding in our state penal institutions.

See State v. Huff, 760 S.W.2d 633, 638 (Tenn. Crim. App. 1988) (citation

omitted). The Community Corrections Act permits trial courts to be creative in

sentencing certain nonviolent felony offenders, who are either not eligible for



        6
        "If a defendant has a long history of crim inal conduct, than personal deterrence by
confinem ent m ay be necessary to protect society from that defendant." Ashby, 823 S.W .2d at
170.

                                               7
probation or not good candidates for probation, to participate in community-

based alternatives to incarceration. See Tenn. Code Ann. § 40-36-103, -104

(1990); State v. Meeks, 779 S.W.2d 394, 397-98 (Tenn. Crim. App. 1988); Huff,

760 S.W.2d at 638. Thus, a sentence to a community corrections program

provides a desired degree of flexibility that may be both beneficial to the offender

yet serve legitimate societal purposes.7 State v. Griffith, 787 S.W.2d 340, 342

(Tenn. 1990).



        The appellant contends that he qualifies for community corrections

sentencing under the provisions of subsections (a) and (c) of Tenn. Code Ann. §

40-36-106. An offender is eligible for participation in a community corrections

program if he satisfies the minimum eligibility criteria set forth at Tenn. Code

Ann. § 40-36-106(a)(1-7) (1994 Supp).8 Thus, an offender desiring a community

corrections sentence must demonstrate that he:

        (1) . . .without this option, would be incarcerated in a correctional
        institution;

        (2) . . .[was] convicted of property-related or drug/alcohol related
        felony offenses or other felony offenses not involving crimes
        against the person . . .;

        (3) . . .[was] convicted of nonviolent felony offenses;

        (4) ...[was] convicted of felony offenses in which the use or
        possession of a weapon was not involved;

        (5) . . .[does] not demonstrate a present or past pattern of behavior
        indicating violence;

        (6) . . .[does] not demonstrate a pattern of committing violent
        offenses; and

        (7) . . .[was not] sentenced to incarceration or on escape at the
        time of consideration. . . .

        7
          Such societal goals include alleviating prison crowding by perm itting local supervision of
som e offenders who otherwise would be warehoused in a penal institution and by perm itting
offenders to receive som e form of vocational training to enhance skills and increase opportunity
for em ploym ent. See Tenn. Code Ann. § 40-36-104(5); Taylor, 744 S.W .2d at 922; see also
State v. Bram lett, No. 01C01-9309-CC-00305 (Tenn. Crim . App. at Nashville, May 19, 1994).
Thus, the offender can transform into a contributing m em ber of society.

        8
        "The eligibility criteria established in this section shall be interpreted as m inim um state
standards, guiding the determ ination of eligibility of offenders under this chapter." Tenn. Code
Ann. § 40-36-106(d).

                                                   8
However, an offender who does not meet the minimum criteria under Tenn.

Code Ann. §40-36-106(a) and is considered unfit for probation due to substance

abuse or mental problems may still be eligible for community corrections under

Tenn. Code Ann. § 40-36-106(c).9 Before an offender may be sentenced

pursuant to subsection (c), the offender must be found eligible for probation.10

State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989). Second, the

court must determine that (1) the offender has a history of chronic alcohol, drug

abuse, or mental health problems; (2) these factors were reasonably related to

and contributed to the offender's criminal conduct; (3) the identifiable special

need(s) are treatable, and (4) the treatment of the special need could be best

served in the community rather than in a correctional institution.11 State v.

Boston, No. 03C01-9505-CR-00154 (Tenn. Crim. App. at Knoxville, May 14,

1996) (citation omitted).




        First, although the appellant is eligible for probation, there is no proof

before us which establishes a special need requiring treatment in the community.

Tenn. Code Ann. § 40-36-106(c). Although the appellant testified that he was

drinking when he entered the victim’s residence, he further explained that this

was the first time he had “touched” alcohol in two years. No other substance

abuse or mental health need was offered in proof. Additionally, the record is



        9
         Tenn. Code Ann. §40-36-106(c) provides:
        Felony offenders not otherwise eligible under subsection (a), and who would be
        usually considered unfit for probation due to histories of chronic alcohol, drug
        abuse, or m ental health problem s, but whose special needs are treatable and
        could be served best in the com m unity rather than in a correctional institution,
        m ay be considered eligible for punishm ent in the com m unity under the provisions
        of this chapter.

        10
        An offender is eligible for probation if he is sentenced to eight years or less and has not
been convicted of a few excluded offenses. Tenn. Code Ann. § 40-35-303(a) (1994 Supp.).

        11
          The appellant bears the burden of affirm atively showing a "special need" which could be
better addressed in the com m unity. See State v. Robinson, No. 02C01-9505-CC-00126 (Tenn.
Crim . App. at Jackson, Feb. 29, 1996).

                                                 9
absent a recommendation for community corrections by the entity administering

the program in his jurisdiction. Taylor, 744 S.W.2d at 920. However, the

appellant does meet the minimum eligibility requirements under subsection (a)(1

- 7). Even though an offender might meet the minimum eligibility requirements of

the Act, an offender is not automatically entitled to such relief. State v.

Grandberry, 803 S.W.2d 706, 707 (Tenn. Crim. App. 1990); see also Taylor,

744 S.W.2d at 919. Again, these criteria have been interpreted as minimum

standards to guide a trial court's determination of whether an offender is eligible

for community corrections. Tenn. Code Ann. § 40-36-106(d).



       Once determining that an offender is eligible for a community corrections

sentence, the court, applying the sentencing considerations set forth in Tenn.

Code Ann. § 40-35-103 and general sentencing guidelines, determines whether

the offender is entitled to a sentence under the Community Corrections Act. The

Community Corrections Act was never intended as a vehicle through which

offenders could escape incarceration. Rather, the legislature’s intent was to

address prison overcrowding by providing certain non-violent offenders a means

by which they could be rehabilitated while continuing to support their families and

contributing to society. Moreover, when imposing community corrections

sentences, courts must remain mindful of the limited positions for placement

within local programs and correspondingly limited resources for the treatment of

the offender’s special needs. Accordingly, the appellant’s rehabilitative potential

is central in the selection process. Each case must be guided by its individual

facts and circumstances. Additionally, 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.

Acknowledging the wide discretion available to trial courts, this court will not

disturb a trial court's decision absent a clear abuse of that discretion. Ashby,

823 S.W.2d at 171.


                                         10
       In conclusion, the appellant, although eligible, has failed to establish

entitlement to a community corrections sentence. The record indicates that this

is the appellant's ninth conviction for aggravated burglary and that efforts at

rehabilitation in the past have failed. Moreover, the record is void of any

evidence supporting the appellant's alleged "special need." Accordingly, the

appellant has failed to carry his burden of demonstrating that the sentence

imposed by the trial court was improper. The judgment of the trial court is

affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



_______________________________
GARY R. WADE, Judge



_______________________________
WILLIAM M. BARKER, Judge




                                         11
