            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       April 24, 2012 Session

              STATE OF TENNESSEE v. HARVEY BRIAN COCHRAN

                 Direct Appeal from the Criminal Court for Monroe County
                            No. 10047    Amy A. Reedy, Judge


                    No. E2010-02607-CCA-R3-CD - Filed June 19, 2012


A jury convicted the Defendant-Appellant, Harvey Brian Cochran, of reckless homicide, a
Class D felony. The trial court sentenced him as a Range I, standard offender to serve three
years in the Tennessee Department of Correction. On appeal, Cochran argues that the trial
court erred at sentencing by allowing the State to introduce unreliable hearsay as proof of a
prior conviction for enhancement purposes, by failing to consider the relevant mitigating
factors, and by denying him an alternative sentence. Upon review, we reverse the trial
court’s denial of an alternative sentence and order Cochran to serve a sentence of split
confinement, with ninety days to be served in periodic confinement at the county jail and the
remainder of his three-year sentence to be served on supervised probation with the terms of
his probation and periodic confinement to be determined by the trial court. In all other
respects, the judgment of the trial court is affirmed.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                     Affirmed in Part; Reversed in Part and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.1

James F. Logan, Jr., Cleveland, Tennessee, for the Defendant-Appellant, Harvey Brian
Cochran.




        1
          This case was originally assigned to our colleague and friend, Judge J.C. McLin. After Judge
McLin’s untimely death on September 3, 2011, the case was re-assigned. Prior to his death, Judge McLin
and his staff had done extensive work on this case. We have utilized much of that work, incorporated it into
this opinion, and take this opportunity to acknowledge the faithful service of Judge McLin as a member of
this court.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Robert Steven Bebb, District Attorney General; and James Harvey Stutts, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                              FACTUAL BACKGROUND

      This case involves the May 26, 2008 stabbing death of Rex Curry at the Notchy Creek
Campground in Monroe County, Tennessee. The Monroe County Grand Jury indicted
Cochran for first degree premeditated murder.

        Trial. Lieutenant Detective Travis Jones, of the Monroe County Sheriff’s Office,
testified that he responded to a stabbing at the Notchy Creek Campground on May 26, 2008.
Cochran was sitting in the back of a patrol car when he arrived. Detective Jones ordered a
deputy to transport Cochran while he stayed on the scene to interview witnesses and view the
crime scene. Detective Jones recovered a knife from a picnic table at Cochran’s campsite
and clothing from the campsite. He sent these items to the Tennessee Bureau of
Investigation (TBI) for testing. Agent Jennifer Shipman of the TBI testified that the items
tested positive for the victim’s blood.

       Detective Jones interviewed Cochran and recorded his statement. The State played
the recording for the jury. In this statement, Cochran said he went camping with his son, a
woman named Pam Stroehmann and her child, and another woman named Stephanie and
Stephanie’s children. At some point in the evening, Stroehmann called Cochran’s son, who
was of mixed race, “the ‘N’ word.” Cochran and Stroehmann argued until two men, who
were also staying in the campground, told Cochran to be quiet. Cochran said that these two
men “both attacked [him].” He said he was pinned down to the ground for five to six
minutes. Cochran said that these men allowed him to get up only after he told them that he
would leave the campground. Cochran returned to his campsite, but one of these men, the
victim, followed him. Cochran told Detective Jones that he grabbed the knife from the picnic
table as the victim approached him. He said that the victim screamed at him and hit him.
Cochran said that they both fell to the ground, and the victim jumped up, yelling that he had
been cut. According to Cochran’s statement, the victim ran away, and Cochran sat down and
talked to his son about how he might have to leave for a few days. Cochran also admitted
he had been drinking the night of the incident. Detective Jones testified he waited
approximately six hours before interviewing Cochran to allow Cochran’s blood alcohol level
to decrease to .05%.




                                             -2-
        Jeffrey Whitehead that testified he and his wife and children went camping at the
Notchy Creek Campground during the Memorial Day weekend. Their campsite was next to
Cochran’s campsite. At approximately 10:00 p.m., Whitehead heard Cochran and a woman
arguing. At midnight, Whitehead stepped outside his tent and saw another camper, the
victim, talking to Cochran and asking him to be quiet. Whitehead told Cochran he was tired
of the noise, and Cochran responded that he would do whatever he wanted to do. At that
point, Whitehead said, “I put my hands on [Cochran,] and we went off into the woods and
across the path, and ended up in one of the tarps that the victim had around his camping
area.” The victim asked Whitehead to let him handle it, and the victim held Cochran down.
The victim told Cochran to calm down, but Cochran “resisted for a long time[.]” At one
point, Cochran said that “if there was a gun there that his son would have it to [the victim’s]
head.” Eventually, Cochran apologized and said he would leave the campground if the
victim let him get up. The victim allowed him to stand, and Cochran told Whitehead and the
victim “that he had something for [them] and walked back to his campsite.” Whitehead said
he did not believe the incident was over, so he told his wife to get their children out of the
tent. He went to his truck, and he heard Cochran yelling he was not afraid. Then he heard
the victim yell, “Call 911, he gigged [sic] me.” Whitehead began walking down the pathway
back to the campsites and met the victim. The victim had a large wound in his chest and
said, “He stabbed me.” Whitehead assisted the victim to Whitehead’s truck and asked the
campground manager to call 9-1-1. He said that Cochran came over to where the victim was
lying and told the victim, “‘Dude, you are going to be all right,’ or ‘hang in there,’ something
to that effect.”

       Brandlyn Whitehead, Jeffrey Whitehead’s wife, corroborated her husband’s testimony,
but she stated that she did not remember exactly what Cochran said when he walked back to
his campsite after the victim let him go. However, she did say that she heard Cochran laugh
as he walked back to his tent.

       The law enforcement officers who arrested Cochran, Deputy Keela Matoy of the
Monroe County Sheriff’s Office and Tennessee Trooper Cory Russell, testified that they
found Cochran sitting at his campsite when they responded to the 9-1-1 call. They testified
that Cochran told them he stabbed the victim.

        David Ware, Jr., the corrections officer who processed Cochran on May 26, 2008,
testified that Cochran reported he drank alcohol weekly. Ware said that Cochran also
informed him that he had drunk one bottle of wine the night of May 26, 2008.

       Dr. Darinka Mileusnic-Polchan, a forensic pathologist, testified that she performed
the victim’s autopsy. She stated that the victim’s cause of death was multiple sharp force
injuries. Dr. Mileusnic-Polchan said that, in addition to the main wound to his chest, the

                                              -3-
victim had two incise wounds on each arm. The main wound to his chest was approximately
seven inches deep. She said that the knife entered the victim’s chest wall, cut and fractured
the fourth and fifth ribs, cut through the left lung, and cut the left ventricle of the heart.

       Stephanie Gay Parker testified on Cochran’s behalf. She said that she had known
Cochran for approximately one year before the incident in this case. She and her children
went camping on Memorial Day weekend with Cochran, his son, Cochran’s girlfriend Pam
Stroehmann, and Stroehmann’s daughter. Parker’s family stayed in a separate campsite near
Cochran’s campsite. She stated that she was awakened by an argument between Cochran and
Stroehmann. Parker heard Stroehmann say, “You and your little f***ing n***er son.”
Parker never left her tent, but she heard the altercation between Cochran, the victim, and
Whitehead. She said that she heard the victim and Whitehead telling Cochran to quiet down,
which was followed by “complete chaos.” She then heard “something hit the ground,” and
Cochran told the men he would calm down. Parker testified that “it finally got quiet for a
few minutes,” but then she heard the victim say, “I will take you down.” A moment later, she
heard “a thud,” and she knew that a fight was occurring. Parker heard the victim say,
“Somebody call 911[;] I’m bleeding, I’m bleeding bad.” Parker said that when Stroehmann
asked Cochran what he had done, Cochran responded that the victim “came at [him].”

        Cochran, the Defendant-Appellant, testified he and Stroehmann had beer, wine, and
vodka at their campsite the night of May 26, 2008. At one point, they ran out of beer, and
he drove to another county to purchase more. He testified that the argument with
Stroehmann began because she wanted him to sleep with her in the tent rather than caring for
his son, who was covered with poison ivy, “and then she started calling [his son] a n***er.”
Cochran said, “I was severely drunk. I mean I don’t know a lot of things that happened, you
know. I remember flashes of things happening.” He recalled hearing voices before he was
pinned to the ground by two men. When the men let him get up, Cochran returned to his
campsite, but the victim followed him. The victim charged him, and Cochran grabbed the
knife from the picnic table. He said the victim yelled, “F**k you and your n****er son.”
Cochran remembered ending up on the ground on his stomach with the victim on top of him,
hitting his head. Then the victim jumped up and said he had been “gigged [sic].” Cochran
said that the victim ran away, and he remained at his campsite. He stated he did not
remember having any blood on him following the incident. He also said that other people
assisted the victim. When asked if he admitted to officers that he stabbed the victim,
Cochran said, “I had to have been [the one to tell them what happened because] nobody else
[was] around.”

      On cross-examination, Cochran attributed his “spotty memory” to the amount of
alcohol he had drunk that night. He testified he did not remember what he told police



                                             -4-
officers regarding the incident. He also said he did not remember telling Whitehead or the
victim that he “had something” for them.

       Jason Watson, Michael Madlin, and Teresa McDaniel each testified that Cochran had
a good reputation for honesty and truthfulness. Following the close of proof and
deliberations, the jury convicted Cochran of the lesser included offense of reckless homicide.

        Sentencing Hearing. At the sentencing hearing, the court admitted Cochran’s
presentence report as evidence. Danny Isbill, a parole officer, testified he prepared the
presentence report. Isbill said that Cochran reported two prior offenses to him: a public
intoxication conviction from Montgomery County, Tennessee, and “a domestic violence
situation in Hopkinsville, Kentucky.” Isbill confirmed the public intoxication conviction via
a National Crime Information Center (NCIC) report, and he called Hopkinsville, Kentucky,
to confirm the conviction there. The authorities in Hopkinsville verbally confirmed the
conviction, but Isbill was not authorized by the State of Tennessee to request a certified copy
of the conviction because of the cost to obtain it. However, the authorities in Hopkinsville
sent Isbill a “certified copy . . . of a disposition calendar and print screen of [a] charge and
sentence screen[.]”

       Cochran objected to the disposition calendar and print screen, arguing that these
documents were not certified copies of a conviction. The State responded that it would
introduce the documents “as evidence of confirmation of information that [Cochran]
personally provided to the probation officer.” The trial court overruled Cochran’s objection
and accepted the documents regarding the Kentucky offense as an exhibit to the sentencing
hearing. These documents showed that Cochran was found guilty of the offense of
aggravated assault-fourth degree-spouse abuse and that he was given a thirty-day sentence
with all but two days suspended and was ordered to pay a fine and to attend domestic
violence counseling. The State noted that “Hopkinsville, Kentucky, did not enter [the
conviction] into the NCIC [database].” On cross-examination, Isbill said that Cochran
informed him that he had stopped drinking alcohol but did not state what, if any, treatment
he received.

       The victim’s father testified that the victim never used profanity and would not have
gone into Cochran’s campsite without an invitation. He also testified that the victim was
very strong and exercised every day.

       Cochran’s mother testified that Cochran was not a violent person and tried to help
everyone as much as he could. She said that Cochran always put his son first. In response
to questioning by the court, Cochran’s mother said that Cochran had never had a drinking
problem but had not drunk any alcohol since the incident.

                                              -5-
       Cochran testified he no longer drank alcohol. He said he was the sole support for his
eleven-year-old son. He also said that he coached football and attended church. Cochran
indicated that he was sincerely remorseful and said, “I can’t even fathom really even being
here today. It’s not who I am[;] it’s not who I try to represent . . . .”

       In response to questioning by the court, Cochran testified he would do anything he
could to help the victim’s family and said he prayed for comfort for them. He agreed that
alcohol was responsible for the incident. He said he did not believe he was an alcoholic
because he had stopped drinking alcohol and did not “need it [or] long for it.”

        At the conclusion of the proof, the trial court found that two enhancement factors
applied, namely that Cochran had “a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range,” and Cochran
“employed a . . . deadly weapon during the commission of the offense.” T.C.A. § 40-35-
114(1), (9) (2006). The court found that no mitigating factors applied, stating that “this [was]
a case where[] the jury considered all of those very things in concluding that he was not
guilty of greater offenses, that in fact he was guilty of a reckless homicide.” The trial court
also determined that the three factors to consider for sentences involving confinement, as
outlined in Tennessee Code Annotated section 40-35-103(1), did not apply. The trial court
then denied alternative sentencing based on Cochran’s lack of truthfulness and remorse as
it related to his potential for rehabilitation:

               The thing that does cause the Court great [p]ause about Mr. Cochran in
       his application for [an] alternative sentence is the factor of his truthfulness, his
       remorse in this case as well. I’m hearing from Mr. Cochran that he can’t
       believe he’s here and he’s in this position, and I believe that he can’t believe
       that. And we have heard from Mr. Cochran, “I did it, I stabbed the guy.” But
       that for the Court stops just short of the truth, and the responsibility and the
       accountability that the Court is looking for to apply [an] alternative sentence
       to this case. Those things, that responsibility and that remorsefulness are
       germane to your rehabilitation potential, and to say that you don’t have a
       drinking problem, when everything that this court heard during this trial was
       that alcohol abuse in this case resulted in the loss of this life, causes the Court
       concern about your truthfulness and causes the Court to decide that [an]
       alternative sentence is not appropriate in this case.

       As a Range I, standard offender, Cochran was subject to a sentence of two to four
years for his reckless homicide conviction. See id. § 40-35-112 (2006). The trial court
sentenced Cochran to serve three years in the Tennessee Department of Correction. Cochran



                                               -6-
filed a timely motion for new trial, which the trial court denied, and filed a timely notice of
appeal.

                                         ANALYSIS

        Cochran argues that the trial court erred in its sentencing. Specifically, he claims that
the trial court erred in admitting unreliable hearsay as evidence of a prior conviction for
enhancement purposes, erred in failing to consider the mitigating factors, and erred in
denying an alternative sentence. The State responds that Cochran waived his argument
regarding unreliable hearsay. The State also argues that the trial court considered the
mitigating factors before choosing not to apply them and that the court properly denied
alternative sentencing. Although we conclude that the trial court did not admit unreliable
hearsay and properly considered the mitigating factors before declining to apply them at the
sentencing hearing, we agree with Cochran that the trial court erred in denying alternative
sentencing.

       I. Domestic Violence Conviction. Cochran’s first argument is that the trial court
admitted unreliable hearsay as evidence of Cochran’s prior domestic violence conviction in
Kentucky, thereby violating the rules of evidence and the Sentencing Act. At the sentencing
hearing, Cochran objected to Danny Isbill’s testimony regarding the Kentucky conviction
because the supporting documents, the printout of the computer screen and the copy of the
disposition calendar, were not certified copies of the conviction. The State urges this court
to conclude that Cochran waived this issue by objecting to these documents on the ground
of hearsay for the first time on appeal. However, based on our review of the record, Cochran
sufficiently preserved this issue for appellate review.

      Tennessee Code Annotated section 40-35-209(b), which governs the presentation of
evidence at a sentencing hearing, states:

       The rules of evidence shall apply, except that reliable hearsay, including, but
       not limited to, certified copies of convictions or documents, may be admitted
       if the opposing party is accorded a fair opportunity to rebut any hearsay
       evidence so admitted . . . .

It is firmly established that information contained within a presentence report is reliable
hearsay which may be admitted if the opposing party is given an opportunity to rebut the
same. State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997) (The hearsay contained in
a presentence report is “reliable because it is based upon the presentence officer’s research
of the records, contact with relevant agencies, and the gathering of information which is
required to be included in a presentence report.”). Moreover, as occurred here, the individual

                                               -7-
preparing the presentence report may testify at the sentencing hearing. T.C.A. § 40-35-
209(b) (2006). Certified copies of convictions are not required to prove a defendant’s prior
criminal history since the trial court may rely on the presentence report and the testimony of
the individual who prepared the report. State v. Richardson, 875 S.W.2d 671, 677 (Tenn.
Crim. App. 1993).

        Here, the record shows that Danny Isbill, the probation officer who prepared the
presentence report, testified that Cochran initially informed him of the public intoxication
conviction and the “domestic violence situation in Hopkinsville, Kentucky.” He stated that
the appropriate authorities in Hopkinsville, Kentucky verbally confirmed that Cochran had
been convicted of the offense of aggravated assault-fourth degree-spouse abuse. Isbill
requested and received a certified copy of the disposition calendar and a print screen of the
charge and sentence screen from Hopkinsville, Kentucky, which also confirmed Cochran’s
conviction. During the hearing, Cochran was afforded a fair opportunity to rebut the
evidence of his conviction, and he failed to do so. In addition, Cochran never argued that the
presentence report, the documents, or the testimony of Isbill was inaccurate. We conclude
that the trial court properly admitted the presentence report, the testimony of Isbill, and the
supporting documents for the Kentucky conviction as reliable hearsay. See T.C.A. § 40-35-
209(b). Moreover, a certified copy of Cochran’s Kentucky conviction was unnecessary to
establish this conviction by a preponderance of the evidence for enhancement purposes in
light of this other evidence. Richardson, 875 S.W.2d at 677; State v. Jimmy Curtis Adkins,
No. E2009-02413-CCA-R3-CD, 2010 WL 5238656, at *9 (Tenn. Crim. App., at Knoxville,
Dec. 16, 2010), perm. app. denied, (Tenn. May 25, 2011) (holding that a certified copy of a
drug paraphernalia conviction was not required where the preparer of the presentence report
testified at the sentencing hearing that she obtained computer records reflecting the
conviction and the defendant was given a fair opportunity to rebut the evidence of the
conviction and failed to do so). Therefore, Cochran is not entitled to relief on this issue.

        II. Sentence. Cochran also contends that the trial court improperly sentenced him
because the trial court failed to consider the relevant mitigating factors and failed to consider
the statutory guidelines regarding confinement before denying alternative sentencing.
Pursuant to the 2005 amendments to the sentencing statutes, a trial court has broad discretion
in determining the length of a defendant’s sentence so long as the sentence imposed is within
the applicable range of punishment and the trial court follows the sentencing act. State v.
Carter, 254 S.W.3d 335, 344 (Tenn. 2008). In order to facilitate appellate review, the trial
court must set forth on the record the particular enhancement and mitigation factors it
considered and the reasons for the sentence. Id. at 343. The 2005 amendments “deleted as
grounds for appeal a claim that the trial court did not weigh properly the enhancement and
mitigating factors.” Id. at 344. Under the amended sentencing act, a defendant may appeal
on the ground that the sentence is excessive under the sentencing considerations as stated in

                                               -8-
sections 40-35-103 and 40-35-210 or that the sentence is inconsistent with the purposes and
principles of sentencing as stated in sections 40-35-102 and -103. Id. “An appellate court
is . . . bound by a trial court’s decision as to the length of the sentence imposed so long as it
is imposed in a manner consistent with the purposes and principles set out in sections -102
and -103 of the Sentencing Act.” Id. at 346. “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” Id. (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). Because the trial court properly considered the
purposes and principles of the sentencing act, our review is de novo with a presumption of
correctness. Id.

       The defendant has the burden of showing the impropriety of the sentence. T.C.A. §
40-35-401(d) (2006), Sentencing Comm’n Comments. A trial court, when sentencing a
defendant, must consider the following:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;
       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

Id. § 40-35-210(b) (2006); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002); State
v. Osborne, 251 S.W.3d 1, 24 (Tenn. Crim. App. 2007).

        Sentence Length. Cochran argues that the trial court failed to consider the mitigating
factors he presented at sentencing. However, he acknowledges that the trial court stated on
the record that it did not apply any of the argued for mitigating factors based on its belief that
the jury considered those factors in convicting him of the lesser included offense of reckless
homicide.



                                               -9-
       At the sentencing hearing, Cochran presented the following mitigating factors: he
acted under strong provocation, he assisted authorities in locating evidence, he “committed
the offense under such unusual circumstances that it is unlikely that a sustained intent to
violate the law motivated the criminal conduct,” he was remorseful, and he was rehabilitated
since he had not consumed alcohol since the incident. T.C.A. § 40-35-113(2), (10), (11),
(13). The court declined to apply any of these mitigating factors, stating, “[T]his [was] a case
where[] the jury considered all of those very things in concluding that he was not guilty of
greater offenses[.]”

        Here, Cochran was charged with first degree premeditated murder but was convicted
of the significantly lesser offense of reckless homicide, a Class D felony. Reckless homicide
is defined as “a reckless killing of another.” Id. § 39-13-215(a) (2006). Reckless culpability
is defined as follows:

       [A] person who acts recklessly with respect to circumstances surrounding the
       conduct or the result of the conduct when the person is aware of but
       consciously disregards a substantial and unjustifiable risk that the
       circumstances exist or the result will occur. The risk must be of such a nature
       and degree that its disregard constitutes a gross deviation from the standard of
       care that an ordinary person would exercise under all the circumstances as
       viewed from the accused person’s standpoint.

Id. § 39-11-302(c) (2006). We note that “[a] jury’s verdict reflecting that consideration of
a potential mitigating factor led to a conviction for a lesser included offense may render that
mitigating factor inappropriate for further consideration in sentencing.” State v. David Keith
Daugherty, No. 03C01-9203-CR-00082, 1993 WL 330454, at *5 (Tenn. Crim. App. Aug. 27,
1993). Upon review, we cannot conclude that the trial court erred in finding that the
mitigating factors presented by Cochran were considered by the jury in convicting Cochran
of reckless homicide rather than first degree premeditated murder. See id.; see also State v.
Robert Lee Collier, No. 01-C-01-9102-CR00048, 1992 WL 92958, at *5 (Tenn. Crim. App.,
at Nashville, May 7, 1992), perm. app. denied, (Tenn. Aug. 31, 1992) (holding that the trial
court did not err in declining to apply the mitigating factor that the defendant acted under
strong provocation where the jury convicted the defendant of involuntary manslaughter rather
than the charged offense of first degree premeditated murder). Accordingly, Cochran is not
entitled to relief on this issue.

        Denial of Alternative Sentence. Cochran argues that the trial court erred in failing
to follow the sentencing guidelines regarding confinement before denying him an alternative
sentence. Any sentence that does not involve complete confinement is an alternative
sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code


                                              -10-
Annotated section 40-35-102(6)(A) (2006) states that a defendant who does not require
confinement under subsection (5) and “who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary[.]” However, a trial
court “shall consider, but is not bound by, the advisory sentencing guideline” in section 40-
35-102(6)(A). T.C.A. § 40-35-102(6)(D) (2006).

       We note that the trial court’s determination of whether the defendant is entitled to an
alternative sentence and whether the defendant is a suitable candidate for full probation are
different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996). Where a defendant is considered a favorable candidate for
alternative sentencing, the State has the burden of presenting evidence to the contrary. State
v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). A trial court should consider the following
when determining whether there is “evidence to the contrary” indicating that an individual
should not receive alternative sentencing:

       (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[.]

Id. § 40-35-103(1)(A)-(C) (2006); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). However, the defendant has the burden of establishing suitability for full probation,
even if the defendant is considered a favorable candidate for alternative sentencing. Id.
(citing T.C.A. § 40-35-303(b)). We agree that Cochran was considered a favorable candidate
for alternative sentencing since he was convicted of reckless homicide, a Class D felony.

       Cochran was also eligible for probation because his sentence was ten years or less and
the offense for which he was sentenced was not specifically excluded by statute. T.C.A. §
40-35-303(a) (2006). The trial court shall automatically consider probation as a sentencing
alternative for eligible defendants. Id. § 40-35-303(b). In addition, “the defendant is not
automatically entitled to probation as a matter of law.” Id. § 40-35-303(b), Sentencing
Comm’n Comments. Rather, the defendant must demonstrate that probation would serve the



                                             -11-
ends of justice and the best interests of both the public and the defendant. State v. Souder,
105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citation omitted).

       When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, his present condition, including physical and mental condition, the
deterrent effect on the defendant, and the best interests of the defendant and the public. State
v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568 S.W.2d
285 (Tenn. 1978)). “The potential or lack of potential for the rehabilitation or treatment of
the defendant should be considered in determining the sentence alternative or length of a
term to be imposed[,]” and “[t]he length of a term of probation may reflect the length of a
treatment or rehabilitation program in which participation is a condition of the sentence[.]”
T.C.A. § 40-35-103(5). In addition, the principles of sentencing require the sentence to be
“no greater than that deserved for the offense committed” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-35-103(2),
(4). Moreover, our supreme court has held that truthfulness is a factor which the court may
consider in deciding whether to grant or deny probation. State v. Bunch, 646 S.W.2d 158,
160 (Tenn. 1983) (citing State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981)).

        The trial court specifically stated that the factors regarding confinement as stated in
Tennessee Code Annotated section 40-35-103(1)(A)-(C) did not apply in this case. We agree
with the court that Cochran did not have “a long history of criminal conduct” pursuant to
section 40-35-103(1)(A). Second, we also agree that the circumstances of the offense were
not so “violent, horrifying, shocking, reprehensible, [or] offensive” as to require a denial of
alternative sentencing based on the seriousness of the offense pursuant to section 40-35-
103(1)(B). State v. Bottoms, 87 S.W.3d 95, 103 (Tenn. Crim. App. 2001) (internal
quotations and citations omitted); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim.
App. 1991); State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); see also State v. Butler, 880
S.W.2d 395, 400-01 (Tenn. Crim. App. 1994) (“[T]he fact that the death of another results
from the defendant’s conduct does not, alone, make the offense sufficiently violent to justify
a denial of probation nor can it be viewed as sufficient evidence to overcome the
presumption in T.C.A. § 40-35-102(6).”). Moreover, a review of the record shows that no
proof was presented at the sentencing hearing regarding the need to deter others from
committing similar offenses pursuant to section 40-35-103(1)(B). State v. Nunley, 22
S.W.3d 282, 286 (Tenn. Crim. App. 1999) (holding that in order to use deterrence as a
justification for confinement, evidence must be presented indicating some special need for
deterrence in that jurisdiction). Third, there was no proof that “[m]easures less restrictive
than confinement have frequently or recently been applied unsuccessfully” to Cochran
pursuant to section 40-35-103(1)(C).



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        The trial court, while acknowledging that none of the factors regarding confinement
as stated in code section 40-35-103(1)(A)-(C) applied in this case, denied alternative
sentencing based solely on Cochran’s lack of remorse and untruthfulness as it related to his
potential for rehabilitation pursuant to section 40-35-103(5). As previously stated, a
defendant’s potential for rehabilitation “should be considered in determining the sentence
alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5) (emphasis added).
Additionally, a defendant’s potential for rehabilitation pursuant to this section becomes a
factor for consideration only after the trial court has determined that a sentence of total
confinement is improper. See State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. 1994).
Specifically, the trial court opined that Cochran showed a lack of remorse and a lack of
candor because Cochran could not believe that he had been convicted of killing a man and
because he denied that he had a problem with alcohol when alcohol abuse played a large role
in the victim’s death.

        We acknowledge that a lack of candor and credibility is a factor which the court may
consider in assessing a defendant’s potential for rehabilitation. Bunch, 646 S.W.2d at 160;
State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996). We further observe that the
trial judge is in the best position to assess a defendant’s credibility and potential for
rehabilitation. However, the trial court’s findings that Cochran exhibited a lack of remorse
and a lack of candor are simply not supported by the record in this case. Because the trial
court’s findings do not constitute “evidence to the contrary,” Cochran maintains his status
as a favorable candidate for alternative sentencing. Accordingly, we conclude that the trial
court erred in denying alternative sentencing in this case. We reverse the trial court’s
judgment denying an alternative sentence and order that Cochran serve a sentence of split
confinement, with ninety days to be served in periodic confinement in the county jail and the
remainder of his three-year sentence to be served on supervised probation with the terms of
his probation and periodic confinement to be determined by the trial court.

                                       CONCLUSION

       Upon review, we conclude that a sentence of split confinement is appropriate.
Accordingly, we reverse and remand the matter for entry of a judgment ordering that the
defendant serve ninety days in the county jail, with the remainder of his three-year sentence
to be served on supervised probation with the terms and conditions of his probation to be
determined by the trial court. In all other respects, the judgment of the trial court is affirmed.




                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE


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