          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON           FILED
                           DECEMBER 1999 SESSION        March 6, 2000

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk
STATE OF TENNESSEE,             *    C.C.A. # W1999-00046-CCA-R3-CD

             Appellee,          *    SHELBY COUNTY

VS.                             *    Honorable Arthur T. Bennett, Judge

MARCO BOYD,                     *    (Reckless Endangerment)

             Appellant.         *



FOR THE APPELLANT:                   FOR THE APPELLEE:

A. C. WHARTON, JR.                   PAUL G. SUMMERS
District Public Defender             Attorney General & Reporter

WALKER GW INN                        MICHAEL E. MOORE
and                                  Solicitor General
J. T. HARRIS
Assistant Public Defenders           PETER COUGHLAN
201 Poplar Avenue                    Assistant Attorney General
Memphis, TN 38103                    425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     LEE VESTER COFFEE
                                     Assistant District Attorney
                                     201 Poplar Avenue, Suite 301
                                     Memphis, TN 38103-1947




OPINION FILED: _______________


AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                  OPINION


      The defendant, Marco Boyd, pled guilty to two counts of reckless

endangerment, Class E felonies. In his negotiated plea, he agreed to a fine of

$500 on each count and two one-year concurrent sentences. The manner of

service of the sentences was reserved for a later hearing. At the hearing, the

trial court denied the defendant probation, and from that decision the defendant

now appeals. After careful review, we AFFIRM the judgment from the trial court.



                                    FACTS


      This matter arises out of the events of the night of December 26, 1997, for

which the defendant, along with his brother and cousin, were originally indicted

on two counts of aggravated assault. The affidavit that gave rise to the charges

states that a lady approached a police car about 12:25 p.m. on December 26,

1997, and stated that four men had pulled-up beside her as she was driving with

friends and pointed a gun at them. The lady accelerated to avoid the men, but

the men also increased their speed and continued to chase until one of the

victims got out of her car and approached the officers. Immediately, the officers

began to approach the vehicle when two of the men attempted to walk away.

They were arrested. After their arrests, they arrived at the vehicle and noticed

the defendant in the driver’s seat and a gun on the passenger seat.          The

defendant, at first, refused the officer’s demands to keep his hands raised and

attempted to get the gun; he was thereafter subdued and arrested.          When

questioned, all the defendants denied owning the gun.



      With the three potentially facing prosecution, the defendant decided to

plead guilty to two counts of reckless endangerment. At first, at the time of the

guilty plea, the defendant related that he was accepting responsibility for the

crimes.   However, later at sentencing, the defendant denied committing the

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instant offenses and stated, in relevant part, that his plea of guilty was simply his

way of avoiding “having to come back and forth to court.”         During these and

other statements at sentencing, the defendant was uncooperative and brazen,

especially in his denial of the instant charges and thus the basis for his plea. In

response, the court denied the defendant probation despite the fact that he was

entitled to a presumption of probation.



                                    ANALYSIS


       The sole issue for our determination is whether the trial court erred in

denying this defendant probation. Stated in an alternative fashion, the issue is

whether failing to tell the truth during the sentencing hearing can outweigh all

other presumptions and factors in favor of probation. The defendant answers

that the trial court erred.     Specifically, the defendant cites his particular

circumstance:

       (1) He is 19 years old;
       (2) he has a high school education.
       (3) he has no prior juvenile or adult arrest record; and
       (4) he has a history of gainful employment.

We acknowledge these facts; however, we hold that, in this case, the trial court

did not err in concluding that the defendant’s lack of truthfulness and candor

outweighed all other favorable presumptions and factors. Accordingly, we affirm

the sentence as imposed by the trial court.



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

sentence, this Court conducts a de novo review of the record with a presumption

that the determinations made by the trial court are correct. See 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.” See 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
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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 this record, this Court should

affirm the sentence, “even if [it] would have preferred a different result.” See

State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



       In making its sentencing determination, the trial court considers:

       (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.

See Tenn. Code Ann. § 40-35-210(a), (b); Tenn. Code Ann. § 40-35-103(5);

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.”

See Tenn. Code Ann. § 40-35-102(6) (1997). In this case, the court considered

all relevant sentencing factors that were raised, and therefore the trial court’s

determination is entitled to the presumption of correctness.



       In this case, even though probation must be automatically considered,

“the defendant is not automatically entitled to probation as a matter of law.” See

Tenn. Code Ann. § 40-35-303(b) [sentencing comm’n. comments]; State v.

Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). The state is correct in its

reliance on State v. Bunch, 646 S.W.2d 158 (Tenn. 1983), which stands for the

proposition that the defendant’s truthfulness may certainly be a factor a trial court

can consider at a probation hearing. The truthfulness of one’s testimony, as
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observed by a trial judge during the sentencing phase, can be very probative of

the defendant’s prospect for rehabilitation.



       In this case, the defendant, at sentencing, was presented with the

following question:

       Q. You remember my telling you that when you took the
          responsibility and pled guilty, that it was not going to work out [if]
          you come in here and ask the judge for probation [while] tell[ing]
          him that you did nothing [wrong].

He answers:

       A: Yeah, I’m in here right now to get probation. That’s what I’m
          here for.

And the questioning proceeds:

       COUNSEL: Because you didn’t do anything.
       DEFENDANT: No one in that car did anything.
       COUNSEL: Nobody pointed a gun at these two ladies.
       DEFENDANT: The finger’s pointing at me right now, ain’t it, sir?
       COUNSEL: Nobody pointed a gun at these two ladies.
       DEFENDANT: Nothing like this false. That was false information.
       COUNSEL: You had four people in this car minding their own
         business, driving their car, and you and a carload full of people
         trying to get them to pull over and talk to them.
       DEFENDANT: No, I didn’t get them to pull over.

       THE COURT: He said you were trying to get them to pull over.

       DEFENDANT: Yes, Sir.
       COUNSEL: And you didn’t point a gun at them?
       DEFENDANT: No, sir.
       COUNSEL: So when you pled guilty to this crime and we dismissed
         your brother and your cousin, when you told Judge Bennett that
         you were taking responsibility for this crime, you lied to the
         judge.
       DEFENDANT: No, I didn’t. No, sir, I didn’t lie.
       COUNSEL: So what you’re asking the judge to do is put you on
         probation because you didn’t do anything.
       DEFENDANT: No, him put me on probation because I’m trying to
         work and I’m tired of coming back and forth to court.
       COUNSEL: You didn’t commit this crime.
       DEFENDANT: It wasn’t no crime committed.
       COUNSEL: Nobody pointed a gun at these four ladies.
       DEFENDANT: No, sir.
       COUNSEL: Including one lady who was pregnant when this
         happened. You didn’t point a gun at them.
       DEFENDANT: No, sir, didn’t nobody point no gun at her.
       COUNSEL: When the police finally got you stopped – Let me ask
         you a question. You were driving this car; is that correct?
       DEFENDANT: Yes, sir.
       COUNSEL: And when these people saw you out there, they tried
         to get away from you and you kept following these folks.
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       DEFENDANT: No, I didn’t follow them, sir. I didn’t follow them. I
         was going the same – I was going downtown. That’s where I
         was going. That was my designation (sic). If they had – was in
         front of me or something, they probably thought I was following
         them, but after then, I can’t even give you a description of their
         car right now. Even after the incident happened. I didn’t follow
         them.


In response to these answers, the trial judge admonished:

       Mr. Boyd, the Court doesn’t believe half of what you said. You are
       lying to the Court about what happened out there. And you tell us
       that you didn’t know anybody – the police was after you, nobody
       pulled any gun on these ladies. There was a gun in the car,
       though, so they were right about a gun being there.

       And you’re saying that you didn’t harass them or speed up, try to
       keep up with them or catch them. All of that, is all false. And I
       don’t believe you’re telling the truth on that.

       You came into this court and took responsibility for it, under oath,
       under oath right sitting there and said persons in the car could be
       exonerated or dismissed. And now you come and say you didn’t do
       anything and don’t want to take responsibility for it.

He continues:

       Now, this is a serious matter. And the first thing the Court’s got to
       do is believe that you’re telling the truth. At least now you’ve got
       the time. The time is yours. It’s all yours. Now, the only thing you
       can do by testifying here in this hearing is to convince the Court
       that you would be a good candidate not to be sent to the
       Correctional Center. You showed me that you are not such a good
       candidate by your testimony here.

       And it bothers the Court further when you testify in this Court that
       you are taking responsibility of this offense, that your brothers had
       nothing to do with it, brother and cousin, and then now you come
       and say, I didn’t have anything to do with it either when you get
       ready to handle your guilty plea.

       And I agree with the State. This old game that you’re trying to play,
       you get the others cut free and then you come in and say, ‘well, I
       didn’t do it, either. Give me, let me go, too.


       Having reviewed the entire record of the sentencing hearing, we find no

error in the trial court’s decision and sentence.



                                  CONCLUSION


       Accordingly, we AFFIRM the sentence as imposed by the trial court.


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                                   _______________________________
                                   JOHN EVERETT W ILLIAMS, Judge


CONCUR:




_______________________________
GARY R. WADE, Presiding Judge




_______________________________
NORMA McGEE OGLE, Judge




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