            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1998


                                                                  FILED
STATE OF TENNESSEE,              )
                                                                       May 15, 1998
                                 )   No. 02C01-9708-CR-00302
      Appellee                   )
                                                                 Cecil Crowson, Jr.
                                 )   SHELBY COUNTY                Appellate C ourt Clerk
vs.                              )
                                 )   Hon. BERNIE WEINMAN, Judge
ERIC D. HENDERSON and            )
JAMES F. HILL,                   )   (Theft of Property over $1000)
                                 )
      Appellants                 )



For the Appellants:                  For the Appellee:

Howard L. Wagerman                   Charles W. Burson
Attorney at Law                      Attorney General and Reporter
Suite 1313, 200 Jefferson
Memphis, TN 38103                    Marvin E. Clements, Jr.
                                     Assistant Attorney General
Attorney for Eric D. Henderson       Criminal Justice Division
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493
Howard Brent Manis
Attorney at Law
Suite 1313, 200 Jefferson            William L. Gibbons
Memphis, TN 38103                    District Attorney General

Attorney for James F. Hill           P. T. Hoover
                                     Asst. District Attorney General
                                     Criminal Justice Complex
                                     Suite #301, 201 Poplar Street
                                     Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                OPINION



        The appellants, Eric D. Henderson and James F. Hill, appeal the sentencing

decision of the Shelby County Criminal Court following their entry of guilty pleas to one

count of theft of property over $1000, a class D felony. 1 See Tenn. Code Ann. § 39-

14-105(3)(1990). Pursuant to a negotiated plea agreement, both appellants received

sentences of two years and six months and a fine of $3000. The manner of service of

each of the sentences was submitted to the trial court for determination. Following a

sentencing hearing, the trial court suspended all but forty-five days of each appellant’s

sentence and ordered that the time be served in the Shelby County Correctional Center

on weekends. Additionally, both appellants were placed on probation for a period of

five years and were ordered to pay restitution in the amount of $4400. In this appeal,

both Henderson and Hill, contend that the trial court erroneously denied their requests

for judicial diversion, or, in the alternative, that the trial court improperly denied their

requests for total probation.



        After a review of the record and the applicable law, we affirm the judgment of the

trial court.



                                             Background



        The proof at the sentencing hearing established that, in March 1996, James Hill

received a telephone call from an individual referred to as “T-Bird,” concerning the

possible sale of tires for Hill’s truck. Hill responded that he was interested. Upon

inspection of the tires, he realized that the tires were the wrong size. Nonetheless, Hill,

seizing the opportunity to make some quick money, purchased eighteen or nineteen

tires from “T-Bird” for $200. Hill conceded at the sentencing hearing that he presumed



        1
         Martin F . Ford wa s indicted a long with the appellants . He also e ntered a guilty plea to
the offense of theft of property over $1000.

                                                   2
the tires to be stolen. Unable to haul all of the tires in his truck, Hill contacted co-

defendant Ford and instructed him to rent a U-Haul vehicle in which to transport the

tires. The tires were part of a shipment of one hundred and fifty tires that were

previously stolen from a tractor trailer.



        Hill, a close friend of Henderson, contacted Henderson and asked him if he

knew of any person that wanted to buy approximately eighteen or nineteen tires.

Henderson did not dispute the fact that he knew that the tires were stolen.

Approximately one or two hours later, Henderson notified Hill that he would participate

in the sale of the tires. Subsequently, Hill, accompanied by co-defendant Ford, picked

Henderson up at his residence in a rented U-Haul truck. Henderson then directed Hill

to City Wide Towing as a suggested place where the tires might be sold. Upon arrival,

Henderson negotiated the sale of some of the tires to the tire company. Eventually, all

of the eighteen tires were sold by Henderson, Hill and Ford.



       Henderson is a thirty year old diesel mechanic and truck driver. He is a high

school graduate and received a certificate of completion from the MATA Truck Driving

School in St. Louis, Missouri. Since graduating from high school in 1985, Henderson

has maintained continuous and stable employment. He regularly attends the Mount

Pisgah Middle Baptist Church and is president of the Magnolia Sports Association, a

youth program, where he coaches peewee football. Henderson testified that he has

never used illegal drugs and drinks alcohol about twice a month on the weekends. He

has no prior record of criminal convictions. At the time of this offense, Henderson was

living with his fiancee and her two minor children. He was also paying child support for

his nine year old son from a prior relationship. He verified that he was current on all of

his financial obligations.



       The appellant Hill is twenty-nine years old, married, and the father of a sixteen

month old son. He is a high school graduate, a veteran of the army, and attended


                                            3
State Technical Institute in Memphis for two years with plans to complete his education

in the future. He states that he abuses neither alcohol nor drugs. For the eight months

preceding the sentencing hearing, Hill has been employed as a railroad piggy backer

at All Coastal Intermodal. Prior to this employment, he worked at Landstar Gemini and

CSX Intermodal as a truck driver. Like his co-defendant, Henderson, Hill is active in

his community, serving as vice-president of the Magnolia Sports Association, where he

also coaches peewee football. Appellant Hill has one prior conviction in 1992 for

driving on a suspended license.



       Regarding the current offense, both appellants repeatedly admitted their

involvement in the criminal activity and their remorse and embarrassment over their

actions.



       At the conclusion of the proof, the trial judge found that all three co-defendants

had “bad attitudes.” In so finding, the trial judge opined that Henderson and Hill were

only remorseful for getting caught with the merchandise, but not for actually committing

the crime. He added that the appellants’ version of the circumstances were less than

believable and he attributed the theft of the entire shipment of one hundred and fifty

tires to Henderson, Hill and Ford. The judge further remarked about the lack of

concern for the victim, commenting upon the appellants’ failure to make restitution prior

to the hearing, and the lack of concern for the seriousness of the appellants’ own

actions in the transactions. A sentence of split confinement to be served on weekends

was imposed coupled with restitution in the amount of $4400, which represented one-

third of the total value of the eighteen stolen tires.



       When the manner of service of sentence is challenged on appeal, this court

conducts a de novo review conditioned upon the presumption that the determination

made by the trial court is correct. Tenn. Code Ann. § 40-35-201(d) (1996 Supp). This

presumption only applies, however, if the record demonstrates that the trial court


                                           4
properly considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991). In the present case, the record indicates that the trial court did not

distinguish in its findings relevant factors attributable to the respective codefendants.2

Our sentencing considerations provide that the sentence imposed should fit not only

the offense committed, but also the individual offender as well. See State v. Dowdy,

894 S.W.2d at 301, 305 (Tenn. Crim. App. 1994). Moreover, there is no indication that

the trial court considered all relevant sentencing principles, including consideration of

judicial diversion. Further, the failure of a defendant, represented by counsel, to initiate

a program of restitution prior to sentencing and the implication of a defendant in crimes

for which insufficient proof exists are not relevant sentencing considerations.

Accordingly, we are unable to attach the presumption of correctness that the statute

affords.



         In spite of the failure of the trial court to address all relevant sentencing

principles, the record supports the requirement for the service of forty-five days on the

weekends and the denial of judicial diversion. The trial court found that Hill and

Henderson both lacked remorse and did not have an appropriate rehabilitative attitude.

The trial court was in a position to judge their credibility based upon their appearance

and demeanor while testifying. The trial court further found their testimony less than

candid. The decision of whether to place a defendant on judicial diversion is within the

sound discretion of the trial court. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim.

App. 1996). As to the trial court’s denial of total probation, a defendant has the burden

of establishing suitability for total probation. State v. Boggs, 932 S.W.2d 467, 477

(Tenn. Crim. App. 1996). Based on our de novo review, we conclude the sentence of

the trial court was appropriate.




         2
          The sentencing hearings for all three indicted defendants were conducted at the same
time. Following the introduction of all of the proof, the trial court announced its sentencing
decision s. Rathe r than rec iting findings re levant to ea ch defe ndant, the court ge neralized its
findings a s to the circ ums tances of the offe nse an d the “attitude ” of all three d efenda nts. W e note
that codefendant Ford was ordered to serve 90 rather than 45 days due to his prior criminal
histo ry.

                                                     5
     The judgment of the trial court is affirmed.




                                 ____________________________________
                                 DAVID G. HAYES, Judge




CONCUR:



___________________________________
WILLIAM M. BARKER, Judge



___________________________________
JOE G. RILEY, Judge




                                       6
