         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            AUGUST 1999 SESSION
                                                      FILED
                                                       October 19, 1999

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                  )              Appellate Court Clerk
                                     )
            Appellee,                )   C.C.A. No. 02C01-9901-CR-00010
                                     )
vs.                                  )   Shelby County
                                     )
KENNETH PICKENS,                     )   Honorable Arthur Bennett, Judge
                                     )
            Appellant.               )   (Voluntary Manslaughter)
                                     )

FOR THE APPELLANT:                       FOR THE APPELLEE:

TERESA JONES                             PAUL G. SUMMERS
Assistant Public Defender                Attorney General & Reporter
201 Poplar Avenue
Second Floor                             CLINTON J. MORGAN
Memphis, TN 38103                        Counsel for the State
                                         425 Fifth Avenue North
TONY N. BRAYTON                          Nashville, TN 37243-0493
Assistant Public Defender
201 Poplar Avenue, Suite 2-01            WILLIAM L. GIBBONS
Memphis, TN 38103                        District Attorney General

                                         LEE COFFEE
                                         Assistant District Attorney General
                                         201 Poplar Avenue
                                         Third Floor
                                         Memphis, TN 38103




OPINION FILED: _____________


AFFIRMED


JAMES CURWOOD WITT, JR., JUDGE
                                     OPINION


              The defendant, Kenneth Pickens, appeals from the sentencing

determination of the Shelby County Criminal Court. The defendant pleaded guilty

to the Class C felony of voluntary manslaughter and agreed to accept a three-year,

Range I sentence, with the manner of service to be determined by the court

following the completion of the presentence report and a sentencing hearing. After

the hearing, the trial court ordered the defendant to serve his three-year sentence

in incarceration. On appeal, the defendant argues that he should have been

awarded an alternative sentence in lieu of straight incarceration. We affirm the

judgment of the trial court.



              On May 30, 1995, the defendant and the victim, Gregory Gibson, were

driving their respective vehicles on a street in the neighborhood in which they both

lived. The victim maneuvered his car to block the defendant’s truck, exited his car,

and began to berate the defendant, who remained inside his truck. The victim

threatened and cursed the defendant, who obtained a pistol from inside his truck

and shot the victim at point blank range. The defendant then left the scene by

driving his truck through an opening between the victim’s car and another vehicle

which was so narrow that the defendant scratched the side of his truck. At the

same time, the victim ran around his car. After the defendant left the scene, the

victim fell to the ground and died of his wounds. The defendant surrendered himself

approximately two hours later. At the sentencing hearing, the defendant testified

that the victim waived a pistol at him; however, the defendant’s passenger and a

second person who witnessed the shooting from the adjacent sidewalk both gave

statements in which they said that the victim had no weapon. No weapon was

recovered from the scene.



              At the time of the shooting, the defendant was thirty years of age and

was operating a landscaping business in Shelby County. He had recently been

honorably discharged from the U.S. Army after completing ten years of military

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service.   His criminal record consisted only of a 1992 military conviction for

disobeying a lawful order, but his separation from the service reflects that it was

based upon alcohol abuse and “rehabilitation failure.” At the time of sentencing, the

defendant received a veteran’s disability payment of $400 per month. He resided

with his wife and two children, whom he supported.



              The evidence before the sentencing court consisted of the plea

submission proceedings, the presentence report and the defendant’s testimony.

The court expressed concern about the defendant’s credibility in view of his

testimony the victim had a pistol and that the victim had blocked the defendant’s

vehicle so that it was impossible for him to drive away. The trial judge said, “The

court believes that you told the untruth [sic] throughout your testimony here. And

that’s grave when you’re asking the court to grant the relief that you’re asking . . .

.” Additionally, the court expressed its concern about the gravity of the offense,

where the defendant took a life that he “didn’t have to take,” and the court found

that granting probation would depreciate the seriousness of the offense.

Specifically, the court found that the defendant did “not deserve probation at this

time, because of the fact that [the defendant feels] it necessary to not come clean

and tell the entire truth on the matter and the serious nature of the matter.”



              Initially, we respond to the state’s argument, set forth in its brief, that

this court is without jurisdiction to entertain the appeal because the appeal was

untimely and is moot.      This argument apparently stems from the somewhat

anomalous appearance of the trial court’s judgment. The guilty plea was submitted

and accepted by the court on March 24, 1998. Also on that date, the defendant, his

attorney, and the Assistant Attorney General executed a “negotiated plea

agreement” which indicated that the defendant pleaded guilty to voluntary

manslaughter upon the state’s recommendation of a three-year, Range I sentence,

with the provision that “suspension of the defendant’s sentence is . . . [t]o be

determined by the court, after a hearing. . . . A presentence report is . . .



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[r]equested.” On the same date, the court entered an order accepting the guilty

plea. A presentence report was prepared on April 28, 1998 and was filed with the

court sometime thereafter. The technical record contains an excerpt from the trial

court’s minutes which reflects that, on December 15, 1998, the trial court conducted

a sentencing hearing in order to consider the defendant’s request for probation and

denied the request. Next appearing in the technical record is a standard-form

“judgment.” It bears no clerk’s stamp showing the filing date. It reflects that the

plea was entered on March 24, 1998 and that the sentence was imposed on

December 15, 1998. It reflects a handwritten notation that says, “judgment exec.

12-15-98,” but the blank for the date of entry of the judgment is filled in to read “3-

24-98.” In the absence of a filing stamp, this latter entry makes it appear that the

judgment may have been entered on March 24, 1998, despite the fact that the face

of the judgment shows that sentencing did not occur until December 15, 1998.



              We decline to dismiss the defendant’s appeal because of mootness

or untimeliness of the appeal. It is clear from the plea submission documents that

the negotiated plea embraced the length and range of the sentence with the

question of alternative sentencing being reserved for determination by the trial court

after the completion of a presentence report and a sentencing hearing. The date

of the filing of the judgment is at best ambiguous, but given the facts that the parties

intended a sentencing determination to be made after March 24, 1998, a

presentence report was generated, a sentencing hearing was conducted, and the

judgment form reflects that the sentence was actually imposed on December 15,

1998, we deem the judgment to have been filed on the latter date. The result is that

the December 17, 1998 filing of the notice of appeal effected a timely appeal to this

court.



              We now consider the defendant’s claim that the trial court erroneously

imposed a sentence of incarceration.




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              When there is a challenge to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review of the record

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

Tenn. Code Ann. §40-35-401(d) (1997). This presumption 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. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is

upon the appellant.” Id. In the event the record fails to demonstrate the required

consideration by the trial court, review of the sentence is purely de novo. Id. If

appellate review reflects the trial court properly considered all relevant factors and

its findings of fact are adequately supported by the record, this court must affirm 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 making its sentencing determination, the trial court, at the

“conclusion of the sentencing hearing” and after determining the range of sentence

and the specific sentence, then determines 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

enhancement and mitigating factors; (6) any statements the defendant wishes to

make in the defendant’s behalf about sentencing; and (7) the potential for

rehabilitation or treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code

Ann. §40-35-103(5)(1990); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.

1993).



              A defendant who “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.” Tenn.



                                          5
Code Ann. §40-35-102(6) (1997). Our sentencing law also provides that “convicted

felons committing the most severe offenses, possessing criminal histories evincing

a clear disregard for the laws and morals of society, and evincing failure of past

efforts at rehabilitation, shall be given first priority regarding sentences involving

incarceration.” Tenn. Code Ann. §40-35-102(5) (1997). Thus, a defendant who

meets the above criteria is presumed eligible for alternative sentencing unless

sufficient evidence rebuts the presumption. However, the act does not provide that

all offenders who meet the criteria are entitled to such relief; rather, it requires that

sentencing issues be determined by the facts and circumstances presented in each

case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).



              The defendant is clearly eligible for alternative sentencing in general,

Tenn. Code Ann. § 40-35-102(5), (6) (1997), but, having committed a violent

offense, he not eligible for placement in a community corrections program. Tenn.

Code Ann. § 40-36-106(a)(2), (3) (1997). The remaining possibility for alternative

sentencing would involve some form of probation. See generally Tenn. Code Ann.

§ 40-35-104 (1997). The defendant is eligible for probation as an alternative to

confinement. Tenn. Code Ann. § 40-35-102(6) (1997). The court is required to

automatically consider probation an a “part of the sentencing determination at the

conclusion of the sentencing hearing.” Tenn. Code Ann. § 40-35-303(b) (1997).

Moreover, the defendant is presumed to be a favorable candidate for alternative

sentencing, but the presumption of suitability for alternatives to confinement may

be overcome by evidence to the contrary. Tenn. Code Ann. § 40-35-102(6); -103(1)

(1997). The burden rests with the defendant to show that he should be placed on

probation. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995).



              Our analysis of the appropriateness of alternative sentencing includes

consideration of the factors enumerated in code sections 40-35-210(b) and -103(5).

One of these considerations is the “nature and circumstances of the criminal

conduct involved.” Tenn. Code Ann. § 40-35-210(b)(4) (1997); Ashby, 823 S.W.2d



                                           6
at 169. In addition, we utilize the considerations for ordering confinement that

appear in section 40-35-103(1). One of these is semantically linked to the nature

and circumstances of the offense. It is the consideration that confinement may be

ordered when it is “necessary to avoid depreciating the seriousness of the offense.”

Tenn. Code Ann. § 40-35-103(1)(B) (1997).



              The nexus between the nature and circumstances of the offense and

sentencing to avoid depreciating the seriousness of the offense is well recognized.

State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991). The nature and

circumstances of the offense may serve as the sole basis for denying probation

when the acts are “especially violent, horrifying, shocking, reprehensible, offensive

or otherwise of an excessive or exaggerated degree; and it would have to be clear

that, therefore, the nature of the offense, as committed, outweighed all other

factors. . . which might be favorable to a grant of probation.” State v. Travis, 622

S.W.2d 529, 534 (Tenn. 1981); see also State v. Cleavor, 691 S.W.2d 541, 543

(Tenn. 1985). “This standard has essentially been codified in the first part of T.C.A.

Section 40-35-103(1)(B) which provides for confinement if it is necessary to avoid

depreciating the seriousness of the offense.” Hartley, 818 S.W.2d at 375. Thus,

the Travis qualifiers appear under the first clause of section 40-35-103(1)(B) to

assist the court in determining when the need to avoid depreciating the seriousness

of the offense overcomes the presumption of suitability for alternative sentencing.



              The defendant capably argues that the trial court’s denial of alternative

sentencing based upon the need to avoid depreciating the seriousness of the

offense is inadequate because the Travis qualifiers do not apply to the facts of his

case. However, we need not make this determination because the Travis qualifiers

apply only when the need to avoid depreciating the seriousness of the offense is the

sole basis for denying alternative sentencing. See, e.g., Cleavor, 691 S.W.2d at

543. In the present case, although the trial court commented at length about the

gravity of the loss of the victim’s life, it consistently linked the need to avoid



                                          7
depreciating the seriousness of the offense to the defendant’s lack of credibility.

The record reflects that the trial court based its denial of alternative sentencing, and

probation in particular, on both of these factors. The need to avoid depreciating the

seriousness of the offense was not the sole basis for the denial of relief.



              In determining whether to grant probation, the reviewing court

considers “the circumstances of the offense, the defendant’s criminal record, the

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

interest of the defendant and the public.” State v. Goode, 956 S.W.2d 521, 527

(Tenn. Crim. App. 1997).       A defendant’s lack of credibility is an appropriate

consideration because it reflects on the defendant’s potential for rehabilitation. Id.;

State v. Chestnut, 643 S.W.2d 343, 353 (Tenn. Crim. App. 1982).



              The trial court expressed substantial concerns about the defendant’s

credibility and, consequently, about his suitability for any form of probation. The trial

court’s concern for the defendant’s credibility is supported in the record, with the

result that we may not substitute our inferences and conclusions as to this

sentencing determination for those made by the trial court, even if we would have

preferred a different result. Fletcher, 805 S.W.2d at 789.



              The judgment of the trial court is affirmed.



                                            ________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE




CONCUR:




______________________________
DAVID H. WELLES, JUDGE




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_____________________________
JERRY L. SMITH, JUDGE




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