         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE         FILED
                             JUNE 1998 SESSION
                                                    September 10, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 01C01-9707-CR-00284
      Appellee,                      )
                                     )    MACON COUNTY
                                     )    SMITH COUNTY
                                     )    TROUSDALE COUNTY
VS.                                  )
                                     )    HON. J.O. BOND,
DAVID KRANTZ,                        )    JUDGE
                                     )
      Appellant.                     )    (Aggravated Burglary,
                                     )     Burglary, Theft over $1,000)



FOR THE APPELLANT:                        FOR THE APPELLEE:

ROBERT G. WHEELER, JR.                    JOHN KNOX WALKUP
SunTrust Center, Suite 900                Attorney General and Reporter
424 Church Street
P.O. Box 198615                           KAREN M. YACUZZO
Nashville, TN 37219-8615                  Assistant Attorney General
                                          Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          TOM P. THOMPSON, JR.
                                          District Attorney General

                                          JOHN D. WOOTEN, JR.
                                          Assistant District Attorney General
                                          203 Greentop Street
                                          P.O. Box 178
                                          Hartsville, TN 37074-0178




OPINION FILED:



AFFIRMED AS MODIFIED; REMANDED FOR ENTRY OF PROPER JUDGMENTS



JOE G. RILEY,
JUDGE
                                       OPINION



       The defendant, David Krantz, appeals as of right his sentences based

upon guilty pleas to various counts of aggravated burglary and theft over $1,000

in Trousdale, Macon, and Smith Counties. The sentences in the three (3)

counties have been consolidated for appellate purposes. The defendant

received an effective sentence of four (4) years with one (1) year to be served in

the local jail and the remainder on probation. The defendant contends the trial

court failed to apply a mitigating factor in sentencing him and erred in not

granting total probation. Although we remand for the correction of the

judgments, the trial court is affirmed in all other respects.



                              PROCEDURAL HISTORY



       The defendant was indicted in June 1995 in Trousdale County for

burglary, aggravated burglary, theft over $1,000, and theft over $10,000. He

pled guilty to two (2) counts of aggravated burglary. 1 The theft charges were

then dismissed.



       The defendant was indicted in August 1995 in Smith County for three (3)

counts of aggravated burglary, two (2) counts of theft over $1,000, and one (1)

count of theft over $10,000. He pled guilty to three (3) counts of theft over

$1,000. The aggravated burglary charges were then dismissed.



       The defendant was indicted in October 1995 in Macon County for

aggravated burglary and theft over $1,000. The defendant pled guilty to one (1)

count of aggravated burglary. The theft charge was then dismissed.




       1
        Subsequently in this opinion, we discuss the need to correct one of the
judgments to reflect burglary and not aggravated burglary.

                                           2
       Sentencing was held at the same time for all convictions. The defendant

received an effective sentence of four (4) years. The first year of the sentence

was ordered to be served in the local jail with the remaining three (3) years to be

served on probation.



                                  SENTENCING



       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.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of
       sentencing and arguments as to sentencing alternatives; (4) [t]he
       nature and characteristics of the criminal conduct involved; (5)
       [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in §§ 40-35-113 and 40-35-
       114; and (6) [a]ny statement the defendant wishes to make in the
       defendant’s own behalf about sentencing.



       There is no mathematical equation to be utilized in determining

sentencing alternatives. Not only should the sentence fit the offense, but it

should fit the offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs,

932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Indeed, individualized

punishment is the essence of alternative sentencing. State v. Dowdy, 894

                                         3
S.W.2d 301, 305 (Tenn. Crim. App. 1994).



                              A. Mitigating Factor



      The defendant contends the trial court erred by failing to find his

cooperation with law enforcement as an applicable mitigating factor. The state

conceded at the sentencing hearing that the defendant’s cooperation helped to

establish venue and “make cases [against the co-defendant] in Macon County,

Trousdale County and also in Smith County.” The trial court refused to give this

mitigating factor any weight because the facts the defendant related to law

enforcement were different than those given to the trial court at the sentencing

hearing.



      Although we find this cooperation should have been considered as a

mitigating factor, we see no reason to reduce the sentences. The four-year

sentence for aggravated burglary is only one year above the minimum of three

(3) years. The defendant received the minimum three (3) years for the other

aggravated burglaries. For the thefts over $1,000, the defendant received two

(2), three (3), and four (4) year sentences. All sentences are concurrent. The

defendant had already been sentenced to six (6) years for theft in Sumner

County. We see no reason to reduce the sentences.



                                  B. Probation



                                        (1)



      The defendant’s primary contention is that the trial court erroneously

denied him total probation. A defendant is eligible for probation if the sentence

received by the defendant is eight years or less, subject to some statutory

exclusions. Tenn. Code Ann. § 40-35-303(a).


                                         4
       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 in

the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A

trial court must presume that a defendant sentenced to eight years or less and

who is not an offender for whom incarceration is a priority is subject to alternative

sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It

is further presumed that a sentence other than incarceration would result in

successful rehabilitation unless rebutted by sufficient evidence in the record. Id.

at 380. However, although a defendant may be presumed to be a favorable

candidate for alternative sentencing, the defendant has the burden of

establishing suitability for total probation. State v. Boggs, 932 S.W.2d at 477;

see Tenn. Code Ann. § 40-35-303(b).



       In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant's criminal record, the

defendant’s social history and present condition, the need for deterrence, and

the best interest of the defendant and the public. State v. Grear, 568 S.W.2d

285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.

1995); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The

defendant's lack of credibility is also an appropriate consideration and reflects on

a defendant's potential for rehabilitation. State v. Dowdy, 894 S.W.2d at 306.



       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 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.

                                          5
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).



                                          (2)



       The trial court found the defendant completely lacking in credibility. The

defendant testified at sentencing that he thought he was simply assisting his

accomplice transport furniture. He maintained he had no idea he was stealing

even though he always picked the furniture up in the evening from unoccupied

homes. We give great deference to the trial court in assessing credibility. The

defendant’s lack of credibility was properly considered by the trial court in

denying total probation. See State v. Dowdy, 894 S.W.2d at 306.



       The trial court found the defendant should not receive total probation after

considering the circumstances of the offenses, his criminal history, his lack of

candor, and the need to protect the public from further offenses committed by

him. We agree. The property loss in these cases was extremely high, and the

defendant never admitted culpability. Although the defendant claims total

probation is warranted so he can continue restitution payments to the victims, it

would appear that, given the best of circumstances, the victims cannot

realistically expect to be fully compensated by the defendant. Simply put, the

defendant has failed to establish his suitability for total probation.



                         CORRECTION OF JUDGMENTS



       Although not raised by the parties, we note several errors in the

judgments entered by the trial court.



       Firstly, the Trousdale County and Smith County judgments combine more

than one count into a single judgment. A separate judgment should be prepared


                                           6
for each count even though they are in the same indictment. Sup. Ct. Rules,

Rule 17. Upon remand, separate judgments should be prepared and entered for

each offense.



       Secondly, the notation “parole conditioned upon restitution” must be

deleted. The defendant will be on probation, not parole. If restitution is to be a

condition of probation, the trial court upon remand must determine the amount,

schedule of payments, and allocation among victims. See Tenn. Code Ann. §

40-35-304(g)(3); see also State v. Alford, ___S.W.2d ___ (Tenn. 1998)(filed

June 15, 1998, at Jackson).



       Finally, the judgment in Trousdale County case no. 95-48 reflects a guilty

plea to Class C aggravated burglary and a sentence of three (3) years. The

indictment only charges the offense of Class D simple burglary. See Tenn. Code

Ann. § 39-14-402(a)(1). We find no amendment to the indictment in the record.

We, therefore, reduce the judgment from aggravated burglary to simple burglary

and, pursuant to Tenn. Code Ann. § 40-35-401(c), set the sentence at two (2)

years. Upon remand the trial court shall enter an amended judgment for simple

burglary with a two (2) year sentence to run concurrently with all other

sentences. This does not change the effective four-year sentence.



       This case is remanded for the entry of judgments as set forth in this

opinion. In all other aspects, the trial court is AFFIRMED.




                                                 _______________________
                                                 JOE G. RILEY, JUDGE




CONCUR:




                                         7
_____________________________
CURWOOD WITT, JUDGE




_____________________________
LEE MOORE, SPECIAL JUDGE




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