            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE            FILED
                            SEPTEMBER 1997 SESSION
                                                            April 15, 1998

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE                  )
                                    )    NO. 03C01-9704-CR-00147
      Appellee,                     )
                                    )    WASHINGTON COUNTY
v.                                  )
                                    )    HON. LYNN W. BROWN
GRANT LEE PROVENCHER                )
                                    )    (Sentencing)
      Appellant                     )
                                    )


For the Appellant                        For the Appellee

Laura Rule Hendricks                     John Knox Walkup
Eldridge, Irvine & Hendricks             Attorney General & Reporter
606 W. Main Street, Ste. 350
P.O. Box 84                              Peter M. Coughlan
Knoxville, TN. 37901-0084                Assistant Attorney General
                                         425 Fifth Avenue North
Jeff C. Kelly                            2nd Floor, Cordell Hull Building
Assistant Public Defender                Nashville, TN. 37243-0493
1st Judicial District
P.O. Box 996                             David E. Crockett
Johnson City, TN. 37605                  District Attorney General

                                         Kent W. Garland
                                         Assistant District Attorney General
                                         1st Judicial District
                                         Unicoi County Courthouse
                                         Erwin, TN. 37650




OPINION FILED:_______________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                          OPINION

         The appellant, Grant Lee Provencher, appeals as of right the sentence he

received following a guilty plea in the Washington County Criminal Court. The

appellant pled guilty to reckless homicide, a Class D felony, and was sentenced as a

Range I standard offender to three (3) years in the W ashington County jail. He

contends on appeal that the trial court erred in denying his request for alternative

sentencing.

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

         The facts of this case demonstrate once again how the mixing of alcohol with

dangerous instrumentalities can result in senseless tragedy. On February 6, 1996, the

appellant was drinking alcoholic beverages and socializing with friends in his Johnson

City apartment. Among those participating in the party were the victim, Jason

McWatters, and his girlfriend, Summer Phillips. During that evening, the appellant

entered his bedroom and brought out a .357 caliber hand gun. He removed the

magazine clip from the pistol and allowed Ms. Phillips to handle it. She pointed it and

proceeded to click the hammer as if to fire the weapon. When she returned the

weapon to the appellant, he aimed it at Ms. Phillips and began cocking and

depressing the hammer. During that time, the gun made a clicking noise but never

fired.

         The victim told appellant not to point the gun at Ms. Phillips; however, the

appellant assured him that the gun was unloaded. Thereafter, the appellant aimed the

gun directly at the victim’s head and depressed the hammer. The gun fired a bullet

into the victim’s forehead, killing him instantly. Although the appellant tried to help the

victim, he panicked and fled from the apartment upon finding that the victim had no

pulse. Before leaving, the appellant stated, “you guys don’t know me, you guys don’t

know what happened, I’ve got to get out of here!”

         The appellant was indicted by the Washington County grand jury for the

offense of reckless homicide. He entered a plea agreement whereby he pleaded

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guilty to reckless homicide and received a three (3) year sentence as a Range I

standard offender. The trial court conducted a sentencing hearing and ordered the

appellant to serve his entire sentence in the Washington County jail. The appellant

argues on appeal that the trial court erred in denying his request for alternative

sentencing. He contends that he is a suitable candidate for probation or some other

sentencing alternative to incarceration.

         This issue is without merit.

         When a defendant challenges the length, range, or manner of his sentence, we

must conduct a de novo review of the record. See Tenn. Code Ann. § 40-35-401(d)

(Supp. 1996). The sentence imposed by the trial court is accompanied by a

presumption of correctness and the appealing party has the burden of showing that

the sentence is improper. See Tenn. Code Ann. § 40-35-401 (Sentencing

Commission Comments). However, the presumption of correctness is conditioned

upon an affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances. See State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).

         To determine the appropriate sentence, the trial court must consider the

following: (1) evidence from the trial and sentencing hearing; (2) the presentence

report; (3) the principles of sentencing and the arguments concerning sentencing

alternatives; (4) the nature and characteristics of the offense; (5) information offered

by the State or the defendant concerning enhancing or mitigating factors; and (6) the

defendant’s statements in his own behalf concerning sentencing. See Tenn. Code

Ann. § 40-35-210(b); see also State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App.

1987).

         In this case, the trial court considered the evidence from the sentencing

hearing, the presentence report, and all relevant factors and circumstances before

ordering the appellant to serve three (3) years in the Washington County jail. We,



                                             3
therefore, review appellant’s sentence with a presumption of correctness.

        The trial court acknowledged that the appellant was a presumable candidate for

alternative sentencing under Tennessee Code Annotated section 40-35-102.1 The

appellant pled guilty to reckless homicide, a Class D felony, and he was sentenced as

a Range I standard offender. However, the trial court found that the statutory

presumption was rebutted by evidence to the contrary. We agree.

        Guidance as to what constitutes “evidence to the contrary” is contained in

Tennessee Code Annotated section 40-35-103(1). That section provides that a

sentence of confinement should be based upon whether confinement is necessary to

protect society or to avoid depreciating the seriousness of the offense, whether

“confinement is particularly suited to provide an effective deterrence to others likely to

commit similar offenses, whether “measures less restrictive than confinement have

frequently been applied unsuccessfully to the defendant,” and whether the defendant

has a potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-103(1),

(5) (Supp. 1996).

        The trial court examined the above factors in determining that the appellant

should serve his three (3) year sentence in confinement. From the appellant’s

testimony at the sentencing hearing, the trial court found that the appellant was so

intoxicated on the night of the shooting that his memory had been disturbed.

Furthermore, the appellant admitted that since the time of the offense, he had

repeatedly binged on drugs and alcohol to avoid dealing with the consequences of his

actions. The trial court determined that although there was no evidence that

        1
           The statutory presumption for alternative sentencing is contained in Tennessee Code
Annota ted sec tion 40-35 -102(5) , (6) (Sup p. 1996) . Section 4 0-35-10 2(5) pro vides tha t:
         In recognition that state prison capacities and the funds to build and maintain them a re
         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.
         Under section 40-35-102(6), “[a] defendant who does not fall within the parameters of
subdivision (5) and is an especially mitigated or standard offender convicted of a Class C, D, or E felony
is presu med to be a fav orable ca ndidate fo r alternative s entenc ing options in the abs ence o f evidenc e to
the c ontra ry.



                                                        4
confinement would provide deterrence, there was proof that the violent offense

coupled with appellant’s intoxication presented a major public concern.

        Moreover, the trial court found that the offense involved multiple enhancement

factors including the appellant’s criminal history, more than one victim, the use of a

firearm, and no hesitation about committing a crime when the risk to human life was

high. See Tenn. Code Ann. § 40-35-114 (1),(3),(9), & (10) (Supp. 1996). 2 From

appellant’s presentence report, the trial court found that the appellant had two prior

assault convictions for which he served probationary sentences. While serving

probation for the second assault conviction, the appellant was held in contempt of

court for failing to pay restitution.

        The appellant’s social history and present condition also influenced the trial

court’s decision. The trial court found that the appellant was a high school dropout

with a history of underage drinking and drug abuse. Although the appellant had

received a G.E.D. and planned to attend college, he had demonstrated an inability to

maintain employment and to improve his life due to persistent substance abuse

problems.3

        Moreover, there was a question as to whether the appellant was truly

remorseful for the reckless killing of the victim. As the trial court noted, the appellant

testified that he felt sorrow and regret for his actions on the night of the shooting;

however, he did not express those feelings until he was recalled to testify by his trial

counsel.4 Furthermore, the appellant admitted that he had relied upon alcohol and

drugs to escape from the consequences of his actions. Based upon that evidence



        2
         The trial court found that Ms. Phillips was also a victim because the appellant had pointed the
gun at he r bef ore h e sho t the vic tim.

        3
         The appellant testified that he had been fired from one job and had quit another without notice
due to substance abuse and other personal problems. However, at the time of the sentencing hearing,
he was working at a Red Lobste r restaura nt.

        4
          When the appellant first testified at the sentencing hearing, he did not mention any remorse or
sorrow for the loss of life or the suffering of the victim’s family. It was not until after the testimony of the
victim’s m other an d father th at the app ellant testified c oncern ing his rem orse.

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and the appellant’s probation record for two previous violent offenses, the trial court

determined that appellant’s potential for rehabilitation was “not good.”

       From our de novo review, we find that the trial court was justified in denying an

alternative sentence. While not relying solely upon the violent nature of the present

offense, we conclude that the offense combined with appellant’s history of substance

abuse, intoxication, and previous violent offenses, rebutted the presumption that he

was a favorable candidate for alternative sentencing. The appellant has served two

prior probationary sentences, yet he has continued to mix alcohol and drugs with

dangerous criminal activities.

       The evidence fails to demonstrate how a probationary sentence in this case

would “subserve the ends of justice and the best interest of both the public and the

defendant.” See State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), per.

app. denied (Tenn. 1990). We, therefore, conclude that the appellant has failed to

carry his burden of showing that his sentence was improper.

       The judgment of the trial court is affirmed.



                                          ___________________________
                                          WILLIAM M. BARKER, JUDGE



CONCUR:


_______________________
JOHN H. PEAY, JUDGE


_______________________
DAVID G. HAYES, JUDGE




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