        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs September 28, 2010

              STATE OF TENNESSEE v. JAMES ADAM CONARD

                  Appeal from the Criminal Court for Knox County
                 Nos. 91492, 92667  Richard R. Baumgartner, Judge


             No. E2009-02599-CCA-R3-CD - FILED OCTOBER 21, 2010


The defendant, James Adam Conard, appeals the Knox County Criminal Court’s revocation
of his probation in one case and the denial of alternative sentencing in a second case. The
result of the trial court’s actions is a nine-year effective sentence to be served in the
Department of Correction. Upon review, we affirm the order and judgments of the trial
court.

            Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and C AMILLE R. M CM ULLEN, JJ., joined.

Keith Lee Leiberman, Knoxville, Tennessee, for the appellant, James Adam Conard.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               In case number 91492, the defendant pleaded guilty on July 10, 2009, to a
charge of aggravated assault and to certain misdemeanor charges, and he agreed to serve an
effective three-year sentence on probation. The record indicates that the victim of the various
offenses was the defendant’s girlfriend.

               On August 14, 2009, the State filed a violation of probation affidavit that
alleged that the defendant was arrested on August 12, 2009, for an August 3 aggravated
assault and aggravated rape, that the defendant failed to report the arrests, and that he tested
positive for consumption of marijuana and oxycontin on August 3, 2009.
               Apparently, the new arrests culminated in case number 92667, wherein the
defendant pleaded guilty on November 12, 2009, to two other charges of the aggravated
assault of his girlfriend. In case number 92667, the trial court imposed an incarcerative,
effective sentence of six years to be served consecutively to the sentence in case number
91492.

              The trial court also conducted a revocation hearing on November 12, 2009.
The hearing consisted of arguments of counsel relative to the consequences of the
defendant’s violation of probation. The defendant’s counsel alluded to a Community
Alternatives to Prison Program (CAPP) report that stated that the defendant would be
accepted into the CAPP if he completed an approved in-patient program followed by
placement in an approved half-way house. Counsel stated that arrangements had been made
for the defendant to enter these programs. The assistant district attorney general argued that
unless the defendant were incarcerated, he would continue to assault the victim.

                The trial court found that the defendant needed “to grow up” and that he posed
a threat to the safety of the victim and to that of the community at large. The court revoked
the probation and ordered the defendant to serve his sentences in case number 91492 in the
Department of Correction. The trial court filed its order of revocation on November 23,
2009, and the defendant filed a timely notice of appeal.

               In this appeal, the defendant claims that the trial court erred by ordering him
to serve his sentences in confinement rather than in the CAPP. He challenges the order of
confinement relative to his effective three-year sentence that was originally suspended in case
number 91492. He also challenges the trial court’s sentencing him to confinement for his
effective six-year sentence in case number 92667.

             First, we see no basis for disturbing the trial court’s decision to order
confinement in case number 91492 in response to the conceded violation of probation.

               A trial court may revoke a sentence of probation upon a finding by a
preponderance of the evidence that the defendant has violated the conditions of his release.
T.C.A. § 40-35-311(e) (2006). A revocation will be upheld absent a showing that the trial
court abused its discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Upon finding
a violation, the trial court may “revoke the probation and suspension of sentence and cause
the defendant to commence the execution of the judgment as originally entered.” T.C.A. §
40-35-311(e). The trial judge retains the discretionary authority to order the defendant to
serve the original sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App.
1995).



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               The defendant claims, in part, that the trial court erroneously based its decision
to order confinement upon its mistaken belief that the defendant had been ordered in July
2009 to have no contact with the victim. He also argues that a placement in the CAPP had
been recommended and arranged. Despite these claims, however, the record evinces a solid
basis not only for revoking probation but also for ordering confinement. The ink was hardly
dry on the July 2009 suspended sentence orders when the defendant committed similar
offenses against the same female victim. We need look no further to discern a basis for the
trial court’s exercise of its discretion to imprison the defendant in case number 91492.

               Next, we consider the six-year incarcerative, effective sentence in case number
92667. The defendant claims that the imposition of confinement for this sentence was
likewise error for the same reasons cited in the revocation case. In his brief, he asks the court
to review the trial court’s sentencing activity.

                Some procedural anomalies attend this claim. The defendant challenges only
the failure to award an alternative sentence, and nothing in the record belies the State’s claim
in its brief that the defendant agreed to the effective six-year sentence on November 12,
2009, and submitted the manner of service to the trial court. At any rate, his appellate
complaint relates only to the manner of service. More perplexing is the question whether the
revocation hearing summarized above also served as the sentencing hearing in case number
92667. Nothing in the November 12, 2009 hearing transcript or in the resulting order says
that; indeed, the hearing transcript refers to the defendant’s appearance before the court
earlier in the day, November 12, 2009. The judgments in case number 92667 were entered
on November 12, 2009. In the transcript of the revocation hearing, the trial judge does not
make the customary references to the sentencing law. Although we therefore suspect that the
sentencing hearing transcript is absent from the appellate record, the State does not claim that
the sentencing decision should be presumed correct based upon a failure of the defendant to
provide an adequate record. Accordingly, we will review the decision to deny alternative
sentencing.

              When considering a challenge to the manner of service of a sentence this court
conducts a de novo review with a presumption that the determinations of the trial court are
correct. T.C.A. § 40-35-401(d) (2006). Our case law has long held that the presumption of
correctness “‘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.
Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991)). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Carter, 254 S.W.3d at 344; Ashby, 823 S.W.2d at 169. If our review of
the sentence establishes that the trial court gave “due consideration and proper weight to the

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factors and principles which are relevant to sentencing under the Act, and that the trial
court’s findings of fact . . . are adequately supported in the record, then we may not disturb
the sentence even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the event the record fails to demonstrate the
required consideration by the trial court, appellate review of the sentence is purely de novo.
Ashby, 823 S.W.2d at 169.

              In making its sentencing determination in the present case, the trial court, at
the conclusion of the sentencing hearing, was obliged to determine the propriety of
sentencing alternatives by considering:

              (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.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

              Relative to the defendant’s aggravated assault convictions, he is considered a
favorable candidate for alternative sentencing. See T.C.A. § 40-35-102(6) (2006).
“[F]avorable status consideration,” however, does not equate to a presumption of such status.

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Carter, 254 S.W.3d at 347.

               As the recipient of a sentence of ten years or less, the defendant is also eligible
for probation. See T.C.A. § 40-35-303(a). He bore the burden, however, of establishing his
“suitability for full probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999);
see T.C.A. § 40-35-303(b). Among the factors applicable to probation consideration are the
circumstances of the offense; the defendant’s criminal record, social history, and present
condition; the deterrent effect upon the defendant; and the best interests of the defendant and
the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

               We review the manner of service of the sentence in this case without a
presumption of correctness due to the lack of any trial court reference to the principles and
factors of sentencing. Nevertheless, the record supports the denial of alternative sentencing.

                 The defendant had just been placed on probation on July 10, 2009, in case
number 91492 when he committed the offenses in case number 92667 on August 3, 2009.
On that date, while on probation, he also tested positive for the use of marijuana and
oxycontin. The August 3 offenses, like the previous offenses, were assaults committed
against the same female victim. Confinement may be ordered when “[m]easures less
restrictive . . . have frequently or recently been applied unsuccessfully to the defendant.”
T.C.A. § 40-35-103(1)(C) (emphasis added). Alternative sentencing had been afforded the
defendant approximately three weeks before he committed the offenses that occasioned the
sentences now under review. Clearly, measures less restrictive than confinement had been
recently applied and had been applied unsuccessfully.

               In view of the foregoing analysis, we affirm the order and judgments of the
trial court.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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