      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                       AT NASHVILLE      FILED
                   OCTOBER 1998 SESSION
                                       December 21, 1998

                                         Cecil W. Crowson
                                          Appellate Court
STATE OF TENNESSEE,          )
                                               Clerk
                             )    NO. 01C01-9801-CC-00042
      Appellee,              )
                             )    COFFEE COUNTY
VS.                          )
                             )    HON. GERALD L. EWELL, SR.,
MARK A. HILL,                )    JUDGE
                             )
      Appellant.             )    (Sentencing)




FOR THE APPELLANT:                FOR THE APPELLEE:

THOMAS C. FARIS                   JOHN KNOX WALKUP
101 S. College Street             Attorney General and
Winchester, TN 37398-1517         Reporter

                                  KIM R. HELPER
                                  Assistant Attorney General
                                  Cordell Hull Building, 2nd
                                  Floor
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  C. MICHAEL LAYNE
                                  District Attorney General
                                  307 South Woodland
                                  P.O. Box 147
                                  Manchester, TN 37355-0147




OPINION FILED:
AFFIRMED




JOE G. RILEY,
JUDGE




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                              OPINION




     The defendant, Mark A. Hill, appeals the sentence imposed

by the trial court after he pled guilty to one (1) felony count of

theft over $1,000 and six (6) misdemeanor counts of theft under

$500. The trial court sentenced him to concurrent terms of three

(3) years for the felony and eleven (11) months and twenty-nine

(29) days for the misdemeanors. The defendant was ordered to

serve ten (10) months and twenty-four (24) days in the Coffee

County jail with the remainder on probation. The defendant

contends the trial court abused its sentencing discretion in the

following manner:



           (1) failing to properly consider the
           defendant’s mitigating factors and order
           total probation, while erroneously
           considering enhancement factors not
           submitted by the state;

           (2) improperly considering that the
           defendant was living out of wedlock with
           the mother of his illegitimate child; and

           (3) failing to give proper weight to the
           defendant’s mental limitations.



After a thorough review of the record and applicable sentencing

principles, we AFFIRM the judgment of the trial court.




                               FACTS




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     The defendant was employed by the Staggerwing Museum

Foundation at the time the offenses were committed. Over the

course of several weeks, the defendant on numerous occasions

stole property from the museum and its owner. During an

investigation, the defendant confessed to the thefts and returned

the majority of the stolen property.




     The defendant agreed to plead guilty to one (1) felony count

of theft over $1,000 and six (6) misdemeanor counts of theft

under $500. The defendant agreed to concurrent sentences of

three (3) years for the felony and eleven (11) months and twenty-

nine (29) days for the misdemeanors with the manner of service

to be determined by the trial court. In accordance with a mental

evaluation of the defendant, the state agreed that any

incarceration ordered by the trial court should be served in the

Coffee County Jail rather than the Department of Correction. The

prosecutor suggested that the defendant serve ten (10) months

and twenty-four (24) days in jail, apparently in an attempt to

match the release eligibility date for a three (3) year sentence as

a Range I, standard offender in the Department of Correction.




     The trial court acquiesced to the prosecutor’s

recommendation regarding local confinement. In doing so, it

considered the defendant’s proposed mitigating factors and

found three (3) enhancement factors applicable. Additionally,


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the trial court ordered the defendant to perform one hundred

(100) hours community service and make restitution to the

victim.




                           SENTENCING




                                 A.




     This Court’s review of the sentence imposed by the trial

court is de novo with a presumption of correctness. Tenn. Code

Ann. § 40-35-401(d). This presumption is conditioned upon an

affirmative showing in the record that the trial judge considered

the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). If the trial court fails to comply with the statutory

directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).




     The burden is upon the appealing party to show that the

sentence is improper. Tenn. Code Ann. § 40-35-401(d)

Sentencing Commission Comments. Under the 1989 Sentencing

Act, sentences which involve confinement are to be based on the

following considerations contained in Tenn. Code Ann. § 40-35-

103(1):

           (A) [c]onfinement is necessary to protect


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           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.



See State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App.

1997);State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App.

1995). A court may also consider the mitigating and enhancing

factors set forth in Tenn. Code Ann. §§ 40-35-113, 114, as they

relate to Tenn. Code Ann. § 40-35-103. See Tenn. Code Ann. § 40-

35-210(b)(5).




     In this case the trial judge conscientiously considered the

various sentencing principles and all relevant facts and

circumstances. If our review reflects that the trial court followed

the statutory sentencing procedure, imposed a lawful sentence

after giving due consideration and proper weight to the factors

and principles set out under our sentencing law, and 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 another result. State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).



                                6
                                              B.




       We conclude the trial court did not abuse its discretion in

sentencing the defendant. The court accepted the defendant’s

five (5) mitigating factors;1 however, it found sua sponte the

following enhancement factors applicable:

                (1) the defendant has a history of criminal
                convictions
                or criminal history in addition to those
                necessary to establish the appropriate
                range, Tenn. Code Ann. § 40-35-114(1);2

                (2) the felony was committed while the
                defendant was on probation, Tenn. Code
                Ann. § 40-35-114(13)(C); and

                (3) the defendant abused a position of
                private trust, Tenn. Code Ann. § 40-35-



       1
           The defendant asserted the following mitigating factors:

                (1) the defendant’s criminal conduct neither caused nor
                threatened serious bodily injury, Tenn Code Ann. § 30-35-
                113(1);

                (2) substantial grounds existed tending to excuse or justify
                the defendant’s criminal conduct, though failing to
                establish a defense, Tenn. Code Ann. § 40-35-113(3);

                (3) the defendant, because of his youth, lacked substantial
                judgment in committing the offense, Tenn. Code Ann. §
                40-35-113(6);

                (4) the defendant was suffering from a mental condition
                that significantly reduced his culpability for these offenses,
                Tenn. Code Ann. § 40-35-113(8); and

                (5) the defendant has the responsibility of caring for a
                young minor child and quite probably has the best job
                situation in terms of payment that he will ever have in his
                life, has shown remorse for the crimes he has committed,
                and incarceration will quite probably cost him any
                opportunity to lead a normal and productive role in society
                at the wage he is presently earning.
       2
        The defendant has previously been convicted of possession of
marijuana, public intoxication, and underage possession of alcohol.

                                              7
           114(15).



A trial court may consider enhancement factors even though the

prosecution failed to file a notice of them. State v. Birge, 792

S.W.2d 723, 726 (Tenn. Crim. App. 1990).




     The state now concedes the record is unclear as to

whether the defendant was on probation at the time the instant

offenses were committed. Furthermore, we note that Tenn. Code

Ann. § 40-35-114(13) only applies when the prior conviction was

a felony. Nevertheless, less restrictive measures than

confinement have recently been applied unsuccessfully to the

defendant. The defendant has received suspended sentences in

the past; yet, this failed to deter him from future criminal

conduct. This is a valid statutory basis upon which to base a

sentence of confinement. See Tenn. Code Ann. § 40-35-103(1)(C).

Accordingly, when the defendant’s prior criminal conduct is

considered in conjunction with his abuse of a position of private

trust, the trial court can hardly be said to have abused its

discretion in ordering a period of confinement.




     The defendant’s remaining issues are without merit. The

trial court did mention the defendant’s “illegitimate” child, but

did so in the context of determining whether the defendant had a

financial obligation to the child. Further, the trial court



                                  8
considered the defendant’s mental limitations in arriving at the

sentence. The trial court ordered the defendant’s confinement

served locally to avoid the inherently adverse effect a

Department of Correction sentence would have on a mentally

challenged individual. We find no abuse of discretion by the trial

court.




     As the defendant has failed to show the impropriety of his

sentence, the judgment of the trial court is AFFIRMED.




                                       _________________________
                                       JOE G. RILEY, JUDGE
CONCUR:




____________________________
PAUL G. SUMMERS, JUDGE




____________________________
JOSEPH M. TIPTON, JUDGE




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