          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE            FILED
                              JANUARY SESSION, 1999         April 22, 1999

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                   )   C.C.A. NO. 01C01-9804-CC-00175
                                      )
             Appellee,                )
                                      )   MARSHALL COUNTY
V.                                    )
                                      )
                                      )   HON. CHARLES LEE, JUDGE
DENETRA SHAWN COOK,                   )
                                      )
             Appe llant.              )   (ESCAPE)



FOR THE APPELLANT:                        FOR THE APPELLEE:

CLIFFORD K. McGOWN                        JOHN KNOX WALKUP
113 North Court Square                    Attorney General & Reporter
P.O. Box 26
Wa verly, TN 37185                        ELIZABETH B. MARNEY
(On App eal Only)                         Assistant Attorney General
                                          2nd Floor, Cordell Hull Building
JOHN HARWELL DICKEY                       425 Fifth Avenue North
District Public Defender                  Nashville, TN 37243

MICHAEL D. RANDLES                        WILLIAM MICHAEL McCOWN
Assistant Public Defender                 District Attorney General
105 South Main Street
P.O. Box 1119                             WEAKLEY E. BARNARD
Fayetteville, TN 37334                    Assistant District Attorney General
(At Tr ial and On A ppea l)               Marshall Co. Courthouse, Room 407
                                          Lewisburg, TN 37091




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION

      The Defendant, Denetra Shawn Cook, appeals as of right following her

conviction and s enten cing h earing in the M arsha ll Coun ty Circu it Court. On March

20, 1991, Defendant was charged with felonious escape when she escaped from the

Mars hall County authorities after being arrested for burglary. Defendant remained

at large until 1997. On July 9, 1997, Defendant entered a plea of guilty to felonious

jail escape in violation of Tennessee Code Annotated section 39-16-605. Following

a sentencing hearing, the trial c ourt su bseq uently sentenced Defendant to serve two

(2) years, to spend sixty (60) days of that senten ce incarc erated w ith the balan ce to

be served on probation. Defendant contends that the trial court erred in ordering the

Defendant to serve sixty (60) days of her sentence incarcerated before placing her

on prob ation. W e affirm the judgm ent of the tria l court.



      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 circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



      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 of sentencing and arguments as to sentencing alternatives;

(d) the nature and characteristics of the criminal conduct involved; (e) any statutory



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mitigating or enhancement factors; (f) any statement that the defendant made on his

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code Ann. §§ 40-35-1 02, -103 , and -210 ; see State v. S mith, 735 S.W.2d

859, 863 (T enn. Crim. A pp. 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 th e factors a nd princip les set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may not modify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).



       At the sentencing hearing, Kenneth McElroy testified for the State. McE lroy,

a former d etective w ith the Ma rshall Co unty Sh eriff’s Dep artmen t, investig ated a

burglary case wherein he charged the Defendant with burglarizing a local residence.

After taking ou t a warrant for the Defendant, Defendant was arrested and

incarcerated in the Marshall County Jail. During the time that she was incarcerated,

McElroy recalled that Defendant complained of back pain and, as a result, was taken

to the local hospital in Lewisburg. McElroy and the jailer, Amy Adams, transported

Defendant to the hos pital. While they were at the hospital for x-rays, the Defendant

asked to use the bathroo m and escap ed throu gh ano ther doo r to the bath room.



       McElroy was no longer employed as a detective when Defendant was arrested

in 1997 . Defendan t gave a statem ent to th e prob ation o fficer, to b e inclu ded in the

pre-sentence report, wherein she claimed McElroy advised her to escape and




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explained how she could escap e. McElroy de nied this allegation in his tes timony.

McElroy left the Sheriff’s Department of his own free will and while in good standing.



      Jennifer Robinson prepared the presentence report of the Defendant.

Robinson stated that she personally interviewed the Defendant, finding her to be

very cooperative in giving in forma tion. Ro binso n was not aw are of a nything in

Defe ndan t’s background which wou ld render her a b ad risk for alternative

sentencing.



      The trial court recognized tha t the D efend ant wa s pres ume d a favo rable

candid ate for alternative sentencing, but noted the fact that Defendant had not been

truthful with the court. The trial court stated that the Defendant elected not to take

the witnes s stan d at the sente ncing hearin g and instead relied upon her earlier

statement in which she accused McElroy of advising her to escape. As aptly noted

by the trial cour t, truthfulness by a defendant during a sentencing hearing is a factor

that may be considered in determining the defendant’s amenability for probation.

State v. Dykes, 803 S.W .2d 250 , 259 (T enn. C rim. App. 1990).             Therefore,

Defen dant wa s ordere d to serve sixty (60) da ys in the M arshall C ounty jail.



      A defe ndan t who “is an es pecia lly 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.” Tenn. Code Ann.

§ 40-35-102(6). Thus, a defendant sentenced to eight (8) years or less who is not

an offender for who m incarcera tion is a priority is presume d eligible for alternative

sentencing unless sufficient evidence rebu ts the presum ption. W hile this court

would agree that the eviden ce is undisputed which presumes Defendant eligible for

                                           -4-
an alternative sentence, the Defendant has the burden of establishing suitability for

total probatio n. State v. Boggs, 932 S.W .2d 467, 477 (Tenn. Crim . App. 1996 ); see

Tenn. Code Ann. § 40-35-303(b). “To meet the burden of establishing suitability for

full probation, the Defendant must demonstrate that proba tion will subserve the ends

of justice and the Defend ant.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim.

App. 1995 ) (quoting Dykes, 803 S.W .2d at 259).



       As Defendant admittedly concedes, a defendant’s truthfulness or lack of

truthfulness is an appropriate consideration to grant or deny probation. Dykes, 803

S.W.2d at 259. The trial court chos e to ac credit the testimony of Kenneth McElroy

regarding Defe ndan t’s escape from the authorities, and we do not hesitate to agree

with its assessment. In addition, we would note that Defendant did receive an

alternative sente nce o f split confinement in which the trial court took into account the

circumstances of the offense a nd the D efenda nt’s continu ed crim inal cond uct. After

seven (7) years of evading the authorities, a sentence of sixty (60) days of

incarceration prior to probation is not greater than that deserved for the offense

committed and appears to be the least severe measure necessary to achieve the

purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2) and

(4). This iss ue is witho ut merit.



       We affirm the ju dgme nt of the trial co urt.




                                      ____________________________________

                                            -5-
                         THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
JERRY L. SMITH, Judge




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