             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                 Assigned on Briefs August 13, 2003

                     STATE OF TENNESSEE v. PAUL PETTIBONE

                   Direct Appeal from the Criminal Court for Davidson County
                          No. 2002-B-936   Cheryl A. Blackburn, Judge



                       No. M2002-03021-CCA-R3-CD - Filed October 17, 2003


The appellant, Paul Edward Pettibone, Jr., pled guilty to the offense of attempted aggravated robbery,
a Class C Felony. He was sentenced to four years as a Range I, standard offender. The trial judge
ordered the appellant to serve his sentence in incarceration, but asserted that if the appellant
successfully completed an addiction treatment program known as Lifeline Therapeutic Community,
he could apply to the court to suspend the rest of his sentence.1 In this appeal as of right, the
appellant contends that the trial court erred by failing to grant either an alternative sentence or a term
of probation after a period of confinement. After a review of this case, we conclude that the
evidence did not support the grant of an alternative sentence or a term of probation after a period of
confinement and thus affirm the judgment of the trial court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID G.
HAYES, J., joined.

William J. Steed, Assistant Public Defender (on appeal), and Paul B. Seusy, Assistant Public
Defender (at trial), Nashville, Tennessee, for the appellant, Paul Pettibone.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.




         1
          The judgme nt form reflects that the appellant is to serve his sentence in “CCA .” This is app arently the
acronym for Corrections Corp oration of America which privately manage s a local pena l facility for Davidson C ounty.
Accordingly, the appellant’s sentence is one that is permitted by law for those counties who have contracted with the
Tennesse e Department of Co rrection to ho use co nvicted felons. See Tenn. Code Ann. §§ 40-35-104(b), 40-35-314.
                                              OPINION

                                        Factual Background

        The appellant was indicted by the Davidson County Grand Jury for attempted aggravated
robbery, which occurred on March 6, 2002. Pursuant to a plea agreement, the appellant pled guilty
to attempted aggravated robbery, a Class C felony. At the plea agreement hearing, the state’s proof
was summarized as follows:

       [O]n March the 6th of this year . . . [victim] was getting out of her vehicle, I believe
       at the Media Play in Hickory Hollow here in Davidson County, when the defendant
       approached her with what appeared to be a long barreled revolver, pointed it at her
       and demanded her car keys and money. She told him she didn’t have any money, and
       she tried to get back in her car. . . . [Appellant] told her that he would kill her, so she
       threw her car keys. And then . . . [appellant] just turned and walked away behind
       Media Play. The police responded with K-9, ran a track, caught . . . [appellant],
       recovered the pellet gun, and . . . [appellant] admitted what he had done.

The trial court sentenced the appellant to the agreed-upon disposition of four years as a Range I,
standard offender. The manner of service of the sentence was left to the discretion of the trial court
and a sentencing hearing was scheduled.

         At the sentencing hearing, the trial judge heard testimony from both the victim and the
appellant. The victim’s testimony paralleled the state’s summary of the events. The testimony was
that on March 6, 2002, the victim, a female, parked in a handicapped parking place at Media Play
in the Hickory Hollow area of Nashville. As she was exiting her vehicle, she was approached by the
appellant. He pointed a gun at her and told her to hand over her purse and car keys. At that time,
the victim attempted to get back into her vehicle. The appellant then told her that he was going to
kill her if she did not comply with his request. The victim then threw her car keys at the appellant,
which hit him in the chest and fell to the ground. The appellant turned around and walked away.
The victim ran into the store to call the police.

        When the police responded, a K-9 officer was called. The appellant was located behind the
store by the K-9 officer. He was taken into custody, brought around to the front of the store, and
identified by the victim.

        The appellant testified that he suffered from mental illness and that he was diagnosed by
medical personnel several times over the last five years with manic depression or bipolar disorder.
He requires medication to stabilize his condition. He was released from the hospital, after treatment
for his bipolar disorder, two days prior to the incident, was homeless, and was not taking his
medication due to his own failure to get his prescription filled. Earlier in the day prior to the
incident, the appellant consumed approximately two twelve packs of beer without eating anything.



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       His testimony indicated that a “spur of the moment” decision “possessed me to turn around
and pull a pistol on [the victim].” The pistol was a pellet or BB pistol that he had stolen from Wal-
Mart and hoped to sell. When the victim threw her car keys at the appellant, he turned around and
walked approximately one hundred yards to an area behind Media Play, where he had stayed for a
couple of days prior to the incident while trying to find somewhere to live.

       The trial court denied alternative sentencing and ordered the appellant to serve out his
sentence of four years in incarceration. However, the trial court asserted if the appellant successfully
completed the Lifelines Therapeutic Community program, he could apply to the court to have the
remainder of his sentence suspended.

        In this appeal, the appellant argues that the trial court: (1) failed to adequately consider his
presumptive eligibility for alternative sentencing and failed to state on the record adequate grounds
for overcoming that presumption; (2) failed to adequately discuss how application of the factors
enumerated in Tennessee Code Annotated section 40-35-103(1) was justified by the record; (3) failed
to discuss any mitigating or enhancement factors; and (4) failed to take into account the appellant’s
significant potential for rehabilitation. The state contends that the trial court properly denied the
appellant alternative sentencing and ordered him to undergo treatment while incarcerated so that he
has a better chance at successful rehabilitation.


                                         Standard of Review

        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action
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). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

                                        Alternative Sentencing

        A defendant “who is an especially mitigated offender or standard offender convicted of a
Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the
absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). Furthermore, unless
sufficient evidence rebuts the presumption,”[t]he trial court must presume that a defendant sentenced
to eight years or less and not an offender for whom incarceration is a priority is subject to alternative


                                                  -3-
sentencing, Ashby, 823 S.W.2d at 169, and that a sentence other than incarceration would result in
successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993); see
also Tenn. Code Ann. § 40-35-303(a).

       However, all offenders who meet the criteria are not entitled to relief; instead, sentencing
issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986)). Even if a defendant is presumed to be a favorable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102(6), the statutory presumption of an alternative
sentence may be overcome if

       (A) [c]onfinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;
       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103(1)(A)-(C).

        In choosing among possible sentencing alternatives, the trial court should also consider
Tennessee Code Annotated section 40-35-103(5), which states, in pertinent part, “The potential or
lack of potential for the rehabilitation or treatment of a defendant should be considered in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5); see also
State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). The trial court may consider a
defendant’s untruthfulness and lack of candor as they relate to the potential for rehabilitation. See
State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999); see also State v.Bunch, 646 S.W.2d
158, 160-61 (Tenn. 1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v.
Williamson, 919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

       [I]t is obvious that the intent of the legislature is to encourage alternatives to
       incarceration in cases where defendants are sentenced as standard or mitigated
       offenders convicted of C, D, or E felonies. However, it is also clear that there is an
       intent to incarcerate those defendants whose criminal histories indicate a clear
       disregard for the laws and morals of society and a failure of past efforts to
       rehabilitate.

State v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994).

        The trial court’s determination of whether the defendant is entitled to an alternative sentence
and whether the defendant is an appropriate candidate for full probation are two different inquiries
that require two different burdens of proof. See State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.


                                                 -4-
App. 1996). Although Class C, D, and E felony offenders are presumed to be favorable candidates
for alternative sentencing, it is the defendant who has the burden of demonstrating his suitability for
total or immediate probation. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995); see
Tenn. Code Ann. § 40-35-303(b).

       In this case, the appellant was convicted of attempted aggravated robbery, a Class C felony.
As a Range I, standard offender convicted of and sentenced to four years for this offense, there is no
dispute that the appellant was eligible for alternative sentencing. See Tenn. Code Ann. §§ 40-35-
102(6), 40-35-303(a); Byrd, 861 S.W.2d at 379-80. Thus, the trial court was required to consider
probation as a sentencing option. See Tenn. Code Ann. § 40-35-303(b).

        The record establishes that the appellant, 46 years of age at the time of sentencing, had
several prior convictions including a felony conviction in 1975 for receiving stolen property. The
presentence report established that the appellant was arrested in 1994 and 1995 for driving under the
influence and was granted a suspended sentence and probation for second offense driving under the
influence, but the appellant admitted that he has “quite a few DUIs.” In testifying about one of the
DUI convictions, the appellant stated that while he was charged with a fifth offense DUI, he was
eventually convicted of a second offense.2 The presentence report also establishes that the defendant
had a charge for aggravated assault which was retired.

       During the opening statements at the sentencing hearing, the state’s attorney asserted that the
presentence report failed to reflect all of the defendant’s convictions; however, he stated that he had
no certified copies of these convictions and did not make a motion to amend the report, instead
relying on cross-examination of the appellant to supplement the presentence report as to the
appellant’s criminal history.3

       During cross-examination by the state, however, the appellant candidly mentioned other
instances of criminal conduct during his testimony, including several offenses not reflected in the


         2
          The report lists the date of conviction for both counts of driving under the influence as “0 9/07 /199 5,” and lists
one sentence as “PET SUSP . SENT .- GRAN TE D (DU I2ND )” and the other as “OFF/DUI 5TH - (P)DUI 2ND; $1,000
FINE + CO STS. 11/29 (S)PROB . + TREAT . + 120 HRS.PSW + 2YRS. REV . LIS.”

         3
           On appeal, the appellant argues that this Court should consider only the testimony of the appellant and th e
presentence report as evidence of the appellant’s criminal history, not the assertions of counsel for the state regarding
convictions and arrests which did not appear on the presentence report. The appellant also argues that a handwritten
notation was added to the original presentence report which states, “Totally incorrect - the ª has multiple convictions
for stolen property theft” and that this notation shou ld not be co nsidered b y this Court. Th e app ellant did not ob ject to
the introduction of the presentence report. Further, his own testimony at the sentencing hearing indicated a more
extensive criminal history than that revealed by the presentence report. The appellant had an opportunity at the
sentencing hearing to challenge the presentence report as inaccurate or incorrect and prepare a supplement to that report
or offer testimony to rebut the information contained in the presentence report. He chose not to take any co rrective
measures. Issues not raised in the trial court will not generally be considered by this Court on appe al. Simpson v.
Frontier Cmty. Credit Union, 810 S.W .2d 1 47, 1 53 (Tenn. 19 91); State v. Brasfield, 973 S.W.2d 937, 948 (Tenn. Crim.
App. 199 7).

                                                             -5-
presentence report. The appellant admitted to a citation for theft of property for shoplifting on
February 25, 2002 at Rivergate Mall and a conviction for theft of merchandise under five hundred
dollars at Rivergate Mall on October 31, 2001, for which he was found guilty and served ninety days
at thirty percent. In fact, the appellant admitted to being arrested two or three times for shoplifting
in the last few years. Counsel for the state questioned the appellant about specific arrests for theft
occurring on October 8, 2001, September 29, 2001, and September 27, 2001. After being questioned
about these three theft arrests, the appellant replied, “No sir [I do not remember all of them]. I
haven’t kept track of them. I’m not saying it didn’t happen. But if you’re asking me to recall how
many times I’ve been arrested for shoplifting, I don’t know.” The appellant asserted that he did not
have any arrests in Tennessee between 1983 and 1994. However, the appellant was questioned about
an arrest in Florida in 1992, and while he admitted to the arrest, he did not recall the particular date
or circumstances. The appellant also admitted that he was arrested in Colorado when he was
nineteen years old.

         The appellant attended Franklin High School until 1973, when he dropped out of school in
the eleventh grade. He went on to obtain a GED in 1977. His employment history included several
short-term, weekly wage jobs from 1999 to 2001 but that employment could not be verified. He
testified that he had worked all his life and that for the most part he had good jobs but that “in the
last four or five years my mother passed away and my ex-wife passed away. And I’ve kind of let
things slide since then.”

        At 6'1" and 165 pounds, the appellant describes his physical health as “good” although he
is prescribed lithium for manic depression/bipolar disorder and drinks up to two fifths of liquor daily.
He reported his last use of marijuana in 1990. The appellant participated in and completed several
treatment programs for alcoholism including one at Cumberland Heights in 2001 and one at
Tennessee Christian Medical Center in 2000. He was last treated for bipolar disorder at Vanderbilt
in 2002.

        The presentence report established that the appellant had a somewhat disjointed family life.
His mother’s name was not in the report. His father reportedly lives in Florida and his sister resides
in Brentwood. The appellant has two ex-wives and a total of four children. The report indicated that
two of the children are adults and he does not have custody of the other two. He pays $400 monthly
in child support. The appellant reported a child support arrearage, but stated that he normally gets
a garnishment on his wages to pay the support. The presentence report stated that “[appellant]
wished he had a closer relationship with his children and his father.”

       The appellant expressed remorse about the incident, stating, “I’m extremely sorry for what
happened. . . . And then for her to have to sit up here and you question her when I’m the one that
did something to her, it made me feel even worse.”

        The appellant testified that while in custody awaiting the sentencing hearing, he secured
conditional acceptance into two halfway house programs, Shipley House and Oxford House, which
offer alcohol treatment programs. While recognizing his alcohol problem, the appellant expressed


                                                  -6-
his desire for treatment and a “willingness to do what I’m told to do.” He also informed the court
that a caseworker would help him manage his bipolar disorder.

        After receiving testimony from the victim and the appellant, the trial court found:

        All right. Well, . . . [appellant], you pled guilty to attempted aggravated robbery. It
        is a C felony. The agreed upon sentence is four years as a Range 1 standard offender,
        which means you are presumed eligible [for probation]. However, just because you
        are presumed eligible doesn’t necessarily mean you are eligible in the sense you still
        have to convince me that you are suitable for an alternative sentence, that is,
        complete suspension of your sentence. I have to look at whether or not there have
        been measures least restrictive frequently or recently applied to you, what your
        criminal history is and what’s necessary to avoid the depreciating the seriousness of
        this offense.

        Actually, . . . [the appellant] presents a pretty remorseful picture. . . .

        That being said, . . . [appellant], you haven’t convinced me at this point. Obviously
        you have not been in a position to participate in any programs because of where
        you’re located. Well, you now will be. I want you to enter the Lifelines program,
        because the problem is - - it’s not just drugs and alcohol. It’s a whole lifestyle kind
        of issue. You need some life skills, and you need a few other things. I’m not saying
        I’ll never grant you probation but just not at this point. I just don’t think that - - I
        think there’s been too many times in your past where other alternatives have been
        applied. So I’m going to order you into the Lifelines program. If you successfully
        complete that and have no write-ups, then . . . [counsel] can apply to suspend your
        sentence. But just not at this time, I’m not sufficiently convinced that’s the
        appropriate resolution to this. . . .

        The appellant asserts on appeal that the trial court failed to make the required findings of fact
on the record so as to accord the sentence in this case the presumption of correctness as prescribed
by Tennessee Code Annotated section 40-35-401(d). While the trial court did not make specific
findings of fact, it did express concern about the appellant’s previous criminal history, alcohol
problems and history of treatment failure, concluding that he needed to be placed in a program where
he would be forced to deal with his alcohol and lifestyle issues.

       After a de novo review of the record, we note that there are factors which weigh in the
appellant’s favor for probation, namely his successful proactive attempts to secure conditional
acceptance at two halfway houses and his recognition of his own problems with alcohol and bipolar
disorder. However, the appellant has numerous prior encounters with the legal system, and yet
continued to commit crimes. Although the appellant’s actions are likely the result of his mental
health and alcohol problems, it is equally evident that past attempts to rehabilitate him have
frequently and recently been unsuccessful. He attended and completed alcohol treatment programs


                                                   -7-
at least two times since 2000, and admits that he was not taking his medication for bipolar disorder
at the time of the offense. The appellant, has not, in our view, satisfied the burden of showing his
entitlement to immediate probation. Thus, after considering the circumstances of the offense,
including appellant’s use and abuse of alcohol, appellant’s potential for rehabilitation in light of two
recent failed attempts at such, and his criminal history as established by the presentence report and
his own admissions, we conclude that there is sufficient evidence in the record to rebut the
appellant’s presumption of entitlement to alternative sentencing. The judgment of the trial court is
therefore AFFIRMED.



                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




                                                  -8-
