        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE           FILED
                       JANUARY SESSION, 1998          May 15, 1998

                                                 Cecil W. Crowson
STATE OF TENNESSEE,         )                  Appellate Court Clerk
                                C.C.A. NO. 01C01-9702-CC-00065
                            )
      Appellee,             )
                            )
                            )   COFFEE COUNTY
VS.                         )
                            )   HON. JOHN W. ROLLINS
JAMES KEVIN MESSICK,        )   JUDGE
                            )
      Appe llant.           )   (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF COFFEE COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

MICHAEL J. FLANAGAN             JOHN KNOX WALKUP
DALE M. QUILLEN                 Attorney General and Reporter
95 White Bridge Road #208
Nashville, TN 37205             ELLEN H. POLLACK
                                Assistant Attorney General
                                425 5th Avenu e North
                                Nashville, TN 37243

                                C. MICHAEL LAYNE
                                District Attorney General

                                STEPHEN WEITZMAN
                                Assistant District Attorney General
                                Manchester, TN 37355




OPINION FILED ________________________

MODIFIED

DAVID H. WELLES, JUDGE
                                        OPINION

         The Defen dant, Jam es Kevin Messic k, appe als pursuant to Rule 3,

Tennessee Rules o f Appella te Proce dure. He was convicted by a Co ffee Cou nty

jury of one count of theft over one thousand dollars ($1,000.00), a Class D

felony. 1 He was sentenced to four years as a standard, Range I offender to serve

nine mon ths in th e Cof fee C ounty Jail and the balance in community corrections.

He was fined $2,500.00, ordered to pay $7,200 .00 in restitution and to p erform

250 hours o f com mun ity servic e. The Defe ndan t argue s one issue o n app eal:

that the trial court erred in failing to grant him full probation. Although we decline

to allow full probation, we modify the manner of service of the sentence.



         Because the Defendant has not challenged h is conv iction in this ap peal,

we only briefly summarize the facts. The Defendant had been employed by

Garner’s Furniture as a delivery person fo r seven years. In M ay, 1995, a store

employee reported to the manager of the store that several hund red dollars were

missing from the store’s money bag. The manager contacted the Manchester

Police Department, and the police set up a surveillance camera in the store.

They recorded the serial numbers of the cash kept in the money bag that was

kept in an employee’s desk drawer. The police then videotaped the Defendant

rifling through the mo ney bag . He did n ot take an y cash a t that time, b ut later

returned and took some of the cash.




1
    Tenn. Code A nn. §§ 39-14-103; 39-14-105 (3).

                                                    -2-
      The store’s bookkeeper conducted an audit and discovered that during a

two-year period, twe nty-five to thirty thousand dollars had disappeared. When

questioned, the Defendant admitted to stealing $1,000.00 on one occasion and

$1,500.00 on another, but later confessed to stealing over $5,000.00 from the

furniture store.    He initially surrendered from his pocket   $1,000.00 in one-

hundred dollar bills whose serial numbers matched those recorded from the

money bag.         The p olice returned the $1,000.00 to th e furniture store. The

Defendant later took the police to his home where he turned over $7,200.00 from

a lockbox. The money was retained as evidence for trial. The Defendant was

convicted of theft over $1,000 and now appeals his sentence, asserting that the

trial court erred by failing to grant him full probation.



      When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).



      In conducting a de novo review of a sentence, this court must consider: (a)

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

presentence report; (c) the principles o f sentenc ing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

                                         -3-
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

that 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 a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



      The presentenc e report reflects that the D efendant wa s twenty-six years

old at the time of sentencing. He was married, with a two-year-old daughter and

a one-year-old son. He graduated from Coffee County High School in 1988 and

had pursued no further formal education. He reported no serious physical or

emotional problems, admitted to some alcohol use when he was twenty-one and

denied any drug use. He and his wife lived with his parents, who were in ill

health. The Defendant had maintained steady employment from 1987 until the

offense in question, and was working at the Marine G roup in Murfre esboro,

Tennessee at the time of sentencing. The victim impact statement completed by

the store man ager recom mende d that the Defe ndant “should ‘get a taste’ of

shock incarceration” because he believed that the Defendant had not shown

remorse.



      A sentencing hearing was conducted on June 28, 1996. The Defendant

represented hims elf bec ause his former counsel had been suspended from the

practice of law and he said h e was u nable to secure representation prior to the

                                        -4-
sentencing hearing.      Laura Prosser, a probation officer, testified that the

Defendant admitted to stealing only part of th e total am ount m issing from the

furniture store. Th e Defe ndant h ad stated he was not raised to steal, but was not

open ly remorsefu l. Jeff Cox, of Brad Ragan Tire and Appliance, testified that the

Defendant had a credit account with the store that he paid off in September of

1993. Thereafter, the Defendant made only cash purchases at the store,which

totaled some $11,000.00. The Defendant paid for the purchases with large

denomination currency, mainly one hundred dollar bills.        Some of the large

purcha ses we re lawnm owers, a ppliance s, tires, and miscella neous items.



      The Defendant testified that he made some of the purchases from Brad

Ragan Tire and Applian ce on b ehalf of his mother and father and that they

provided the money.       He was maintaining his father’s lawn care business

because his father was sick. The Defendant also stated that his parents received

disability money and that his mother received settlement money from h er fathe r’s

estate, which was used to pay for the items he purchased. He denied that he

used o ne hun dred do llar bills from G arner’s F urniture.



      The Defe ndan t’s mothe r testified that she and her husband paid for the

items at Brad Raga n Tire and A pplian ce. Th e Def enda nt’s brother testified that

the lawnmowers were purchased with money he and the Defendant earned doing

lawn care fo r their father’s business. Their father could not work because he had

lung cancer. He testified that they could earn $200.00 to $300.00 per week

cutting grass. Most jobs paid between $20.00 and $50.00.




                                         -5-
         The trial court ordered that the Defendant serve the maximum sentence of

four years with nine months incarceration in the Coffee County Jail and the

balance to be served in community corrections. In imposing the sentence, the

trial judge m entione d that the D efenda nt’s back ground and ed ucation were

positive factors. He also n oted th at the D efend ant’s actions violated the trust of

the other employees at the furniture store. Finally, the trial judge stated that the

Defendant was not entirely candid regarding the money he stole. However, the

record does not affirmatively demonstrate that the trial judge gave due

consideration to the principles of sentencing as is required, therefore, we conduct

this review de novo without the presum ption of co rrectnes s.



         Although probation "must be automatically considered as a sentencing

option for eligible defendants, the defen dant is no t autom atically entitled to

probation as a matter of law."         Tenn. Code Ann. § 40-35-303(b) (1990)

(Sentencing Commission Comments). This Court must begin its sentencin g

determination by reviewing the purposes of sentencing set forth in Tennessee

Code Annota ted sectio n 40-35 -102. State v. Davis , 940 S.W.2d 558,559 (Tenn.

1997).



         If an accused has been convicted of a Class C, D or E felony and

sentenced as an especially mitigated or standard offender, there is a

presumption, rebuttable in nature, that the accused is a favorable candidate for

alternative sentencing unless disqualified by some provision of the Tennessee

Criminal Senten cing Re form A ct of 1989 . Tennessee Code Annotated section

40-35-1 02 provid es in part:




                                         -6-
      (5) In recognition that state prison capa cities an d the fu nds to build and
      main tain them are limited, convicted felons committing the most se vere
      offenses, poss essin g criminal histories evincing a clear disregard for
      the laws and morals of society, a nd evincing failure of past efforts at
      rehabilitation shall be given first priority regarding sentencing involving
      incarceration; and

      (6) A defendant who does not fall within the parameters of subdivision
      (5) and 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 in the absence of evidence to the
      contrary.


      The sentencing proce ss m ust ne cess arily commence with a determination

of whether the accu sed is en titled to the be nefit of the p resum ption. Ashby, 823

S.W.2d at 169. As our supreme court said in Ashby: "If [the] de termin ation is

favora ble to the defe ndant, the trial court m ust presu me tha t he is sub ject to

alternative senten cing.   If the court is pres ented w ith evidenc e sufficient to

overcome the presumption, then it may sentence the defendant to confinement

accord ing to the s tatutory pro vision[s]." Id. "Evidence to the contrary" may be

found in applying the considerations that govern sentences involving

confinem ent, which are set forth in Tennessee Code Annotated section

40-35-103 (1):



      (A) Confinem ent is necess ary to protect society by re straining a
      defend ant who has a lon g history of c riminal co nduct;

      (B) Conf inem ent is necessary to avoid depreciating the seriousness of
      the offense or confinem ent is particularly suited to provid e an effective
      deterrence to others likely to commit similar offenses; or

      (C) Measures less restrictive than confinement have frequently or
      recently b een ap plied uns uccess fully to the de fendan t.


See Davis , 940 S.W .2d at 561 ; Ashby, 823 S .W .2d at 1 69.      Th e pres ump tion

can be succ essfully reb utted by fa cts conta ined in the presen tence re port,



                                         -7-
evidence presented by the state, the testimony of the accused or a defense

witness, or any other source provided it is made a part of the reco rd. State v.

Bonestel, 871 S.W .2d 163, 167 (Tenn. Crim . App. 1993 ).



       Beyond this, a defe ndant has the burden of establishing his or her

suitability for total probation. Tenn. Code Ann. § 40-35-303(b). To be granted

full probation, a defendant must demonstrate that probation will "subserve the

ends of justice and the best interest of both the public and the defend ant." State

v. Boggs, 932 S.W .2d 467 , 477 (T enn. C rim. App . 1996); State v. Bingham, 910

S.W.2d 448, 456 (Tenn. Crim. App. 1995) (citing Hoop er v. State , 201 Tenn. 156,

161, 297 S.W.2d 78, 81 (1956)). The trial court must consider a sentence which

is the “least s evere m easure neces sary to ac hieve the purpos es for which th e

sentence is imposed” and “[t]he potential or lack of potential for the rehabilitation

or treatm ent for the d efenda nt.” Tenn . Code Ann. § 4 0-35-10 3(4), (5).



       In Bingham, we cited the following factors which, although “not controlling

the discre tion of th e sen tencin g cou rt,” shou ld be c onsid ered in determining the

appropriateness of probation:

       (1) The nature and characteristics of the crime, under Tenn. Code

       Ann. § 40-3 5-210(b)(4) (S upp. 1996 );

       (2) the defendant’s potential for rehabilitation, under Tenn. Code Ann.

       § 40-35-10 3(5)(1990);

       (3) whether full probation would “unduly depreciate the seriousness

       of the offense,” under Tenn. Code Ann. § 40-35-103(1)(B) (1990); and

       (4) whether a s entence of full prob ation would “pro vide an effective

       deterrent,” unde r Tenn. Co de Ann. § 4 0-35-103(1 )(B) (1990).

                                          -8-
Bingham, 910 S.W.2d at 456.



         The Defendant was convicted of a Class D felony and therefore is entitled

to the benefit of the presumption for alternative sentencing. We have reviewed

the presentence report, which reflects no significant problems other than the

offense in question.     Mitigating factors applicable to the decision regarding

alternative sentencing are that the Defendant’s criminal conduct neither caused

nor threatened bodily injury and that there was no prior criminal history. Tenn.

Code Ann. § 40-35-113(1), (13). An enhancement factor is that the Defendant

abused a position of private trust during the commission of the offense. Tenn.

Code Ann. § 40-35-114(15). The State introduced testimony that the Defendant

lacked remorse about the crime and that he was not candid about the money he

stole.



         W e point out that the Defendant received a sentence of confinement

followed by community corrections, which is a form o f alternative s entenc ing. W e

are mindful that the Defendant bears the burden of prov ing his suitab ility for full

probation. The record does not reflect that the Defendant met this burden during

the sentencing hearing of showing that probation would “subserve the ends of

justice of both the public an d the de fendan t.” The trial court’s concerns regarding

the Defendant’s lack of candor and remorse are certainly factors to consider

when determining w hether confinement is necessary for deterrence of the

Defendant and others in the community. The trial judge mentioned another case

of embe zzlem ent he handled the sam e day he senten ced the Defen dant.

Howeve r, we must certain ly recog nize th at the D efend ant wa s witho ut the b enefit

of counsel during h is senten cing hea ring. In consideration of imposing the least

                                          -9-
restrictive sentence to accomplish the sentencing principles, we reduce the

period of incarceration to three months and affirm the trial court’s order for the

Defendant to serve the ba lance of his sentence in c omm unity corre ctions. W e

note that the trial court has the discretion to revoke a commu nity corrections

sentence upon a finding that the Defendant has violated the conditions of the

agreem ent; the trial court may then order the Defen dant to serve h is sent ence in

confinem ent. State v. Harkins, 811 S.W .2d 79, 82 (T enn. 1991 ).



      According ly, we modify the term of incarceration to three months with the

balance to be served in community corrections and remand to the trial court for

entry of an order consistent with this opinion.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                        -10-
