             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE             FILED
                             JUNE 1996 SESSION                August 9, 1996

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk
STATE OF TENNESSEE,                    )
                                       )    C.C.A. NO. 01C01-9509-CR-00291
             Appellee,                 )
                                       )    SUMNER COUNTY
VS.                                    )
                                       )    HON. JANE WHEATCRAFT,
PRISCILLA ANN BLAKEMORE,               )    JUDGE
                                       )
             Appellant.                )    (Sentencing)




FOR THE APPELLANT:                          FOR THE APPELLEE:


DAVID DOYLE                                 CHARLES W. BURSON
District Public Defender                    Attorney General & Reporter

PAMELA E. BECK                              MICHELLE L. LEHMANN
Asst. Public Defender                       Asst. Attorney General
117 East Main Street                        450 James Robertson Pkwy.
Gallatin, TN 37066                          Nashville, TN 37243-0493

M. ALLEN EHMLING                            LAWRENCE RAY WHITLEY
McClellan, Powers, Ehmling & Dix            District Attorney General
116 Public Square
Gallatin, TN 37066                          DEE D. GAY
                                            Asst. District Attorney General
                                            Cordell Hull Bldg.
                                            113 West Main Street
                                            Gallatin, TN 37066




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              This appeal represents three consolidated cases. The defendant pled guilty

to three counts of forgery, one count of theft over one thousand dollars ($1000), two

counts of passing a forged check, and one count of passing a worthless check. For each

count of forgery and passing a forged check, the trial court sentenced the defendant to

three years in the Department of Correction as a Range II multiple offender. For the theft

offense, the trial court sentenced her to three years in the Department of Correction as

a Range I standard offender. For passing a worthless check, the trial court sentenced

her to eleven months and twenty-nine days at seventy-five percent (75%) to be served

in the Sumner County jail. All sentences were ordered to run concurrently.



              In this appeal as of right, the defendant challenges the manner of service

of her sentences, arguing that the trial court abused its discretion in failing to grant her

alternative sentencing. We find that the defendant’s issue lacks merit, and her sentences

are therefore affirmed.



              In case number 8889, the defendant was indicted on November 9, 1994,

on two counts of forgery and two counts of passing a forged writing. On February 17,

1995, she pled guilty to the two forgery counts, and the remaining counts were retired.

In case number 8997, the defendant was indicted on February 8, 1995, on one count of

theft of property valued in excess of one thousand dollars ($1000), and she pled nolo

contendere to that charge on May 17, 1995. In case number 9036, the defendant was

indicted on March 8, 1995, on two counts of forgery, three counts of passing a forged

check, and two counts of passing a worthless check. On June 12, 1995, she pled guilty

to one count of forgery, two counts of passing a forged check, and one count of passing



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a worthless check. The remaining counts of the indictment were retired. The defendant

committed the offenses to which she pled guilty on various days from July of 1994

through November of 1994.



              The sentence for each offense was agreed upon through plea negotiations,

and the trial court accepted all of the sentences.         As agreed upon in the plea

negotiations, all sentences were ordered to run concurrently. The sole question left open

by the plea agreements was the manner of service of the sentences.



              On July 28, 1995, the trial court conducted a sentencing hearing for the

purpose of determining the manner of service of the sentences. The State offered no

proof other than the information contained in the presentence report. The presentence

report revealed that the defendant has had a recurring drug problem. In addition, the

presentence report indicated that the defendant has seventeen prior criminal convictions,

dating from June of 1983 to the present. Two of these convictions were for felonies.



              The defendant testified in her own behalf at the sentencing hearing. She

stated that she is thirty-two years old and lives in Gallatin with her boyfriend and his

mother. She has an eleventh grade education and is studying for her GED. Before her

bond was revoked, she worked for Western Reserve Products and, if released, she

hopes to gain employment there again. With regard to her physical condition, the

defendant is blind in one eye, has cataracts and glaucoma in the other eye, and is

epileptic. She testified that she had used both marijuana and cocaine in the past. In fact,

she stated that she had committed the present offenses to support her cocaine addiction.

Upon cross-examination, the defendant admitted that she had used cocaine even within

the month preceding the sentencing hearing. As far as providing a reason why she



                                            3
should not be incarcerated, the defendant testified that she was preparing to marry, and

her children, who had been away for eight years, were about to return to stay with her.

The defendant stated that she wanted to prove herself to her children. As a result, the

defendant requested that she be placed on some form of intensive probation with weekly

drug screening and that she be allowed to attend outpatient drug addiction treatment.



              After hearing all of the proof, the trial court denied the defendant’s request

for alternative sentencing. The trial judge made the following findings at the sentencing

hearing:


              This defendant has a long prior criminal history. She has 17
              prior convictions. She has been in the penitentiary, she
              came out, she continued to use drugs, she continued to
              break the law. She’s been on probation previously with this
              Court. She has been given drug treatment opportunities in
              the past, and she has never availed herself of that. Each and
              every time that she has been given a chance she has
              managed to find another way to break the law.
                      She was under the influence when she came to Court
              to testify in the Spurlock case, because I had her tested, and
              I have the results of that test. It’s my belief that she came to
              Court under the influence when she plead guilty, and again
              at the sentencing hearing. She has lied to me here today.
                      I don’t see anything to do with this defendant but put
              her in the penitentiary, and that’s what I’m going to do.
                      She was previously offered by the State six months in
              jail and six months in a halfway house and turned that down.
              I didn’t like that in the beginning. After having heard her
              testify today I feel even more secure in the judgment that I
              am imposing.


The trial court then ordered the defendant to serve her felony sentences with the

Department of Correction and her misdemeanor sentence at the county jail, effectively

sentencing her to three years at thirty-five percent (35%) as a Range II multiple offender.



              In her only issue on appeal, the defendant contends that the trial court

abused its discretion in refusing to grant her alternative sentencing. The defendant


                                             4
claims that she met all of the eligibility criteria for probation or Community Corrections

and that some form of alternative sentencing would better serve her special need for drug

addiction treatment.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, "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).



              T.C.A. § 40-35-103 sets out sentencing considerations which are guidelines

for determining whether or not a defendant should be incarcerated. These include the

need "to protect society by restraining a defendant who has a long history of criminal

conduct," the need "to avoid depreciating the seriousness of the offense," the

determination that "confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses," or the determination that "measures less

restrictive than confinement have frequently or recently been applied unsuccessfully to

the defendant." T.C.A. § 40-35-103(1).



              In determining the specific sentence and the possible combination of

sentencing alternatives, the court shall consider the following: (1) any evidence from the

trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing

and the arguments concerning sentencing alternatives, (4) the nature and characteristics

of the offense, (5) information offered by the State or the defendant concerning



                                            5
enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the

defendant's statements in his or her own behalf concerning sentencing. T.C.A.

§ 40-35-210(b). In addition, the legislature established certain sentencing principles

which include the following:


                (5) In recognition that state prison capacities and the funds to
                build and maintain them are limited, 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 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.


T.C.A. § 40-35-102.



               After reviewing the statutes set out above, it is obvious that the intent of the

legislature is to encourage alternatives to incarceration in cases where defendants are

sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,

it is also clear that there is an intent to incarcerate those defendants whose criminal

histories indicate a clear disregard for the laws and morals of society and a failure of past

efforts to rehabilitate.



               The State concedes that the defendant has met the general statutory

eligibility requirements for probation or Community Corrections. See T.C.A.

§ 40-35-303(a) (1990); T.C.A. § 40-36-106(a) (1990). Mere eligibility, of course, does not

end the inquiry. Instead, the defendant still bears the burden of establishing that she is

a suitable candidate for alternative sentencing. See T.C.A. § 40-35-303(b); State v.



                                              6
Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Militating against alternative

sentencing are circumstances indicating that measures less restrictive than confinement

have recently been applied unsuccessfully to the defendant or that confinement is

necessary either to protect society from a defendant with a long history of criminal conduct

or to avoid depreciating the seriousness of the offense. See T.C.A. § 40-35-103(1); State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



              In the present case, the trial court denied alternative sentencing primarily

because of the defendant’s extensive criminal history.           She has seventeen prior

convictions spanning nearly every year from 1983 through 1994, including a number of

theft and forgery convictions. The defendant received a variety of punishments for these

offenses, including probation, suspension of sentence upon payment of costs, house

arrest, drug treatment, “no contact” orders, restitution, and some limited periods of

incarceration. The record fully supports the trial court’s implicit finding that measures less

restrictive than confinement have been frequently applied to the defendant without

success and that confinement is necessary to protect society from her criminal behavior.

As the trial court stated, “every time that she [the defendant] has been given a chance she

has managed to find another way to break the law.” The defendant’s lack of potential for

rehabilitation militates against alternative sentencing. See T.C.A. § 40-35-103(5) (1990).

Moreover, the trial court, in finding that the defendant had lied at the sentencing hearing,

properly considered her untruthfulness as a factor supporting the denial of alternative

sentencing. See State v. Dykes, 803 S.W.2d 250, 259-260 (Tenn. Crim. App. 1990).



              From a review of the entire record, we can only conclude that the trial court

did not abuse its discretion in denying the defendant’s request for alternative sentencing.

The judgment of the trial court is therefore affirmed.



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                               JOHN H. PEAY, Judge



CONCUR:




DAVID G. HAYES, Judge




WILLIAM M. BARKER, Judge




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