         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 3, 2004

               STATE OF TENNESSEE v. SHAUN DAVID PIERCE

                  Direct Appeal from the Circuit Court for Marshall County
                    Nos. 15276, 15308, 15309, 15310   Charles Lee, Judge



                   No. M2003-01076-CCA-R3-CD - Filed February 19, 2004


The Defendant, Shaun David Pierce, pled guilty to four counts of burglary of an automobile, a Class
E felony, two counts of theft over one-thousand dollars, a Class D felony, two counts of theft over
five-hundred dollars, a Class E felony, four counts of theft under five-hundred dollars, a Class A
misdemeanor, and two counts of vandalism under five-hundred dollars, a Class A misdemeanor. The
Defendant received an effective sentence of sixteen years. The sole issue in this direct appeal is
whether the trial court erred by not allowing the Defendant to serve his sentence in the community
corrections program. We affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Andrew Jackson Dearing, Lewisburg, Tennessee, for the appellant, Shaun Pierce.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Mike
McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION


       The Defendant pled guilty to the aforementioned assortment of crimes on February 7, 2003.
The Defendant admitted to breaking into four cars and stealing objects inside in an effort to fund his
drug habit. The trial court sentenced him as a Range II offender, a classification the Defendant does
not contest, to an effective sentence of sixteen years, which the Defendant does not contest. The
Defendant’s sole issue is whether the trial court should have allowed him to serve his sentences in
the community corrections program.
        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that 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. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        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); State v. Fields, 40 S.W.3d 435, 440
(Tenn. 2001). Guidance regarding what constitutes “evidence to the contrary” which would rebut
the presumption of alternative sentencing can be found in Tennessee Code Annotated section 40-35-
103(1), which sets forth 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[.]

See id.; State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); Ashby, 823 S.W.2d at 170.

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The


                                                  -2-
court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. § 40-35-103(5).

         The Community Corrections Act was meant to provide an alternative means of punishment
for “selected, nonviolent felony offenders . . . , thereby reserving secure confinement facilities for
violent felony offenders.” Tenn. Code Ann. § 40-36-103(1); see also State v. Samuels, 44 S.W.3d
489, 492 (Tenn. 2001). Pursuant to statute, persons who satisfy all of the following minimum
criteria are eligible for participation in a community corrections program:

         (1) Persons who, without this option, would be incarcerated in a correctional
         institution;
         (2) Persons who are convicted of property-related, or drug/alcohol-related felony
         offenses or other felony offenses not involving crimes against the person as provided
         in title 39, chapter 13, parts 1-5;
         (3) Persons who are convicted of nonviolent felony offenses;
         (4) Persons who are convicted of felony offenses in which the use or possession of
         a weapon was not involved;
         (5) Persons who do not demonstrate a present or past pattern of behavior indicating
         violence; [and]

       (6) Persons who do not demonstrate a pattern of committing violent offenses[.]
Tenn. Code Ann. § 40-36-106(a). However, persons who are sentenced to incarceration or who are
on escape at the time of consideration will not be eligible, even if they meet these criteria. See id.

       Persons who do not otherwise satisfy the minimum criteria and who would usually be
considered unfit for probation due to histories of chronic alcohol abuse, drug abuse, or mental health
problems, but whose special needs are treatable and could be served best in the community may be
considered eligible for participation in a community corrections program. Id. § 40-36-106(c).

        Even though an offender meets the requirements for eligibility, he or she is not automatically
entitled to participation in a community corrections program. See State v. Ball, 973 S.W.2d 288, 294
(Tenn. Crim. App. 1998); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Rather,
the Act provides that the criteria shall be interpreted as minimum standards to guide a trial court’s
determination of whether that offender is eligible for community corrections. See Tenn. Code Ann.
§ 40-36-106(d).

       The Defendant apparently argues that he should have been allowed to serve his sentences in
Community Corrections under the “special needs” category. See Tenn. Code Ann. § 40-36-106(c).
The presentence report reflects that the Defendant is thirty years old,1 married with three children,
and has received his GED. He has no long-term employment history. His criminal history is quite


         1
          At the sentencing hearing, the Defendant maintained that the presentence report incorrectly listed his birth year
as 1972, when it was, in fact, 1973, making him twenty-nine years old.

                                                           -3-
extensive. It dates back to 1991 and includes ten burglary convictions, one conviction for possession
of marijuana, a robbery conviction, and several misdemeanors.

        At the sentencing hearing, the Defendant admitted that he was guilty of all the instant
offenses. He explained that he became addicted to cocaine while he was in prison, and he was
nursing a habit that cost between three-hundred and fifty and five-hundred dollars per day. He broke
into and stole items out of cars to buy drugs. He testified that he knew what he had done was wrong,
but that he was unable to fight his addiction. He asked the trial court to be lenient and help him
battle his drug problem.

        As the trial court correctly noted, the Defendant was not entitled to the presumption that he
was a favorable candidate for alternative sentencing because he was not “an especially mitigated or
standard offender.” Tenn. Code Ann. § 40-35-102(6). However, due to the nonviolent nature of the
crimes he committed, he was eligible to serve his sentence in the community corrections program.
See id. § 40-36-106(a). As we have already noted, although an offender may be eligible to
participate in the program, he or she is not automatically entitled to it. See Ball, 973 S.W.2d at 294.

         The trial court denied the Defendant any form of alternative sentence based on the
Defendant’s lengthy criminal history and his unwillingness to comply with measures less restrictive
than confinement. See Tenn. Code Ann. § 40-35-103(1)(A), (C). Without question the Defendant’s
criminal history is extensive. Many of his crimes involve stealing or damaging the property of others
in an attempt to support his cocaine habit. Indeed, at the sentencing hearing, the Defendant told the
trial court, “If I could leave right now and walk out that door, I would find the nearest place to get
some cocaine, and which will be probably close by.” Clearly confinement is necessary in this case
to protect the public from the Defendant, who has a long history of criminal activity. See id. § 40-
35-103(1)(a).

        Furthermore, the record shows that, in 1993, the Defendant’s probation was revoked because
he was convicted of robbery and evading arrest. In March of 1999, the Defendant was allowed to
serve his four-year sentence in the community corrections program, but in 2001 he was convicted
of possession of marijuana, in 2002 he was convicted of driving on a suspended license, and in
February of 2003 he was convicted of the instant offenses. Thus, it appears that the Defendant was
serving a community corrections sentence when he committed the instant offenses. Obviously,
measures less restrictive than confinement have been unsuccessful with the Defendant. See id. § 40-
35-103(1)(C). Therefore the trial court did not err by refusing to allow the Defendant to serve his
sentences in the community corrections program.

       The judgments of the trial court are affirmed.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE


                                                 -4-
