        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs July 22, 2003

              STATE OF TENNESSEE v. SIDNEY JOSEPH OGLE

                  Direct Appeal from the Criminal Court for Knox County
                       No. 75980 Richard R. Baumgartner, Judge



                                No. E2002-03112-CCA-R3-CD
                                      October 13, 2003

The appellant, Sidney Joseph Ogle, pled guilty in the Knox County Criminal Court to aggravated
assault. The trial court sentenced the appellant as a Range I standard offender to three years
incarceration in the Tennessee Department of Correction. The trial court denied the appellant’s
request for probation and the appellant timely appealed. Upon review of the record and the parties’
briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON, J., joined.

Mark E. Stephens, District Public Defender, and J. Steven House, Assistant Public Defender,
Knoxville, Tennessee, for the appellant, Sidney Joseph Ogle.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Leland L. Price, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

                                    I. Factual Background

       The record before this court does not include a transcript of the guilty plea hearing. The
following facts are gleaned from the presentence report:
               On [October 2, 2002,] warrants were served on [the appellant]
               charging him with aggravated assault and public intoxication. The
               warrants alleged that on [October 2, 2002,] an officer responded to a
               domestic violence call. The victim stated that her boyfriend pushed
               her against the kitchen cabinets and started choking her. They lived
               together at the time. The [appellant] admitted they had been arguing.
               He was very intoxicated and was located on the front porch with an
               open beer. The victim had a social contact order of protection against
               the [appellant] at the time of the assault. The victim was transported
               to the hospital.

        The appellant was subsequently charged by information with aggravated assault committed
in violation of a restraining order. Tenn. Code Ann. § 39-13-102(c) (Supp. 2002). On November
13, 2002, he pled guilty to aggravated assault as charged. The trial court accepted the appellant’s
plea and imposed a sentence of three years in the Tennessee Department of Correction.
Subsequently, the trial court held a sentencing hearing to consider the appellant’s request for
probation.

        At the sentencing hearing, the State relied upon the presentence report. The State
acknowledged that the appellant had “a serious alcohol problem that’s bringing him down.” In
addition to alcohol treatment, the State recommended that if the trial court granted probation, the
appellant be required to serve his probation in a half-way house, because “[i]f we just send him out
on regular probation now, it’s setting him up for failure.” The State also recommended that the trial
court order the appellant to have no contact with the victim, but acknowledged that the victim would
likely initiate contact with the appellant.

        In response to the State’s recommendation, defense counsel conceded that the appellant had
“a serious drinking problem.” Defense counsel advised the trial court that the appellant did not have
the financial resources to pay for admittance to a half-way house. Defense counsel requested that
the appellant be admitted to an inpatient treatment program until he could obtain “social security
disability” to pay for his stay at a half-way house. Defense counsel also agreed that the victim would
likely initiate contact with the appellant; therefore, ordering the appellant to have no contact with
the victim would be “problematic.” Defense counsel asked the trial court to consider terminating
the order of protection upon the appellant’s successful completion of treatment for his alcohol
problems.

        The presentence report reflects that the forty-three-year-old appellant stated that he began
binge drinking when he was eight years old. He had previously sought treatment for his alcoholism
at Peninsula Hospital, the Helen Ross McNabb Center, and Knox Area Rescue Ministries. However,
the appellant reported that he had recently stopped drinking after learning that the deaths of his father
and brother were alcohol-related. The appellant reported that at the time of the instant offense, he
was intoxicated and “remembers none of it.” The presentence report reflects that the appellant has
thirteen prior convictions, including five convictions for driving under the influence and four
convictions for public intoxication. The presentence report also reflects that the appellant was
arrested on three prior occasions for assaulting the victim in the instant case, but each of those
charges was dismissed.

       After considering the arguments of counsel and reviewing the presentence report, the trial
court denied the appellant’s request for probation, finding,


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                       Well, this is a time when I disagree not only with [defense
                counsel’s] assessment, . . . but I disagree with the [S]tate’s
                assessment. [The appellant] has at least 13 prior convictions, five
                prior DUI convictions. He’s been in custody substantial periods of
                time during those convictions, but on each occasion he continues to
                [commit] criminal offenses.

                         With regard to this particular offense, the history in this case
                is - and I feel justified in relying on this because of the information in
                the presentence report - is that this victim has been assaulted on
                previous occasions by [the appellant]; one time sent her to the
                hospital.

                        The warrant in the case was dismissed on a technicality
                because the . . . magistrate failed to actually sign the warrant, and it
                was dismissed on that basis. There was another assault after that, and
                then this assault in which the officers personally observed the injuries
                to Ms. Young on her face and neck.

                        Based on your prior history of criminal conduct, based on the
                fact that prior attempts to rehabilitate you have been unsuccessful and
                your continuing criminal activity, including these assaults on this
                victim, I don’t find you’re an appropriate candidate to be placed on
                probation, . . . and I’m going to deny that and send you to the
                penitentiary to serve this sentence.

                                             II. Analysis

       On appeal, the appellant challenges the trial court’s denial of probation. When an appellant
challenges the length, range, or manner of service of a sentence, it is the duty of this court to conduct
a de novo review with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d) (1997). However, 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). If the record
demonstrates that the trial court failed to consider the sentencing principles and the relevant facts and
circumstances, review of the sentence will be purely de novo. Id.

        In conducting our review, this court must consider (1) the evidence, if any, received at trial
and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the
arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of the
offense; (5) any mitigating or enhancement factors; (6) any statements made by the appellant on his
own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-
35-102 and -103 (1997), -210 (Supp. 2002). See also Ashby, 823 S.W.2d at 168. The burden of


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showing that a sentence was improper is on the appellant. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.

        Tennessee Code Annotated section 40-35-102(5) provides that only “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.” A defendant who does not fall within this
class of offenders 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.” Tenn.
Code Ann. § 40-35-102(6). Furthermore, “[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
sentencing 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) (citation omitted); see also Tenn.
Code Ann. § 40-35-303(a) (Supp. 2002). However, the presumption of alternative sentencing may
be rebutted by “evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); see also State v.
Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). Guidance as to what constitutes “evidence to the contrary”
is found in Tennessee Code Annotated section 40-35-103(1) (1997), which provides for confinement
when:
                (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.

       Additionally, “the potential or lack of potential for rehabilitation or treatment of the
defendant should be considered in determining the sentence alternative or length of a term to be
imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct
and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative
sentencing. Tenn. Code Ann. § 40-35-102(5).

       On appeal, the appellant contends that the trial court relied upon “an improper presentence
report” to deny the appellant’s request for probation. Specifically, the appellant asserts that the
presentence report contained “numerous prior arrests that did not result in conviction,” including
three prior arrests for assaulting the victim in the instant case.1 Arguing that consideration of
dismissed charges in setting a sentence is grounds for “reversal of a sentence,” the appellant
maintains that he should be placed on full probation or receive a sentence of split confinement.




         1
             The presentence report reflects that in addition to thirteen prior convictions, the appellant had twelve prior
arrests that did not result in conviction.

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        In denying the appellant’s request for probation, the trial court found that the appellant had
“a long history of criminal conduct.” See Tenn. Code Ann. § 40-35-103(1)(A). “Ordinarily mere
arrests or indictments are not evidence of the commission of a prior crime.” State v. Miller, 674
S.W.2d 279, 284 (Tenn. 1984). A trial court should not use evidence showing mere arrests, without
more, to enhance a sentence. State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993)
(citing State v. Newsome, 798 S.W.2d 542, 543 (Tenn. Crim. App. 1990)). However, in the instant
case, the trial court did not rely solely on the appellant’s numerous arrests. The trial court also
considered that the appellant had thirteen prior convictions, thereby justifying the denial of probation
based upon the appellant’s “long history of criminal conduct.” Additionally, we note that the trial
court denied the appellant’s request for probation based upon the appellant’s lack of potential for
rehabilitation. See Tenn. Code Ann. §§ 40-35-102(5), -103(5). Specifically, the trial court found
that the appellant had been “in custody substantial periods of time [for prior] convictions, but on
each occasion he continues to [commit] criminal offenses.” This issue is without merit.

         The appellant also asserts that the trial court failed “to address all sentencing considerations.”
We disagree. As part of the plea agreement, the appellant agreed to a sentence of three years, with
the trial court to determine whether to grant alternative sentencing. The trial court found that
although the appellant was presumed to be a favorable candidate for alternative sentencing, the
presumption had been successfully rebutted by evidence to the contrary. The trial court determined
that based upon the appellant’s long history of criminal conduct and his lack of potential for
rehabilitation, the appellant was not “an appropriate candidate to be placed on probation.” Clearly,
the trial court considered the sentencing principles and appropriately denied alternative sentencing.
This issue is without merit.

                                            III. Conclusion

        Based upon the foregoing, the judgment of the trial court is affirmed.




                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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