         IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

                               AT JACKSON

                        DECEMBER 1997 SESSION
                                                       FILED
                                                       February 12, 1998

                                                       Cecil Crowson, Jr.
STATE OF TENNESSEE,                )                   Appellate C ourt Clerk
                                   )
            APPELLEE,              )   C.C.A. No. 02C01-9612-CR-00476
                                   )
vs.                                )   Shelby County
                                   )
KENNETH B. JOHNSON,                )   Hon. James C. Beasley, Jr., Judge
                                   )
            APPELLANT.             )   (Sentencing)
                                   )



FOR THE APPELLANT:                     FOR THE APPELLEE:

MARK A. MESLER                         JOHN KNOX WALKUP
200 Jefferson Avenue, Suite 1250       Attorney General & Reporter
Memphis, TN 38103
                                       KENNETH W. RUCKER
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-4351

                                       WILLIAM L. GIBBONS
                                       District Attorney General
                                       201 Poplar Avenue, Suite 3-01
                                       Memphis, TN 38103

                                       LEE V. COFFER
                                       Assistant District Attorney General
                                       201 Poplar Avenue
                                       Memphis, TN 38103




OPINION FILED: _____________


AFFIRMED


CURWOOD WITT, JUDGE
                                       OPINION



              The defendant, Kenneth B. Johnson, appeals the manner of the

service of his sentence as determined by the Shelby County Criminal Court. He

was charged with three counts of forgery over $10,000.00, Class C felonies. Upon

acceptance of his guilty plea, the trial court sentenced the defendant to three years

on each count, to run concurrently, and imposed a fine of $500.00 on each count.

The effective sentence of three years was ordered to be served through periodic

confinement consisting of a probationary period of four years in conjunction with

incarceration on 52 consecutive weekends during the first year of probation. During

the remaining three years of the probationary period, the defendant is to perform

100 hours of community service.



              In this appeal, the defendant challenges the trial court’s denial of

judicial diversion and the denial of probation. Upon a close review of the record, the

briefs of the parties, and the applicable law, we affirm the judgment of the trial court.



              At the time of sentencing, the defendant was a thirty-year old college

graduate. The defendant testified he found a tax form lying in a post office in

Hickory Hill. The form reflected the name of a taxpayer, Bernard Johnson, the

taxpayer’s social security number (SSN), and a copy of the taxpayer’s driver’s

license. The defendant took this form home with him. Later, he used Bernard

Johnson’s SSN to obtain a new driver’s license that bore the defendant’s picture

and address. He then used the fraudulent SSN and/or identification supplied by the

new driver’s license to obtain two loans totaling $8,622.73. (These loans were not

a subject of the present indictment, nor any other indictment, and the defendant

testified the loans were repaid by him and his parents.)            In October, 1995,

subsequent to obtaining the loans, the defendant wanted to buy a 1995 Ford

Mustang from Bud Davis, Inc., a Shelby County car dealership. Discovering that he

had inadequate credit to enable him to purchase the car without a prohibitive down



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payment, he applied for financing, title, and vehicle registration using the false

identification and SSN. Before the defendant returned to the dealership to finalize

the purchase and loan, the dealer learned about the impending fraud through a

credit check and a telephone conversation with the real Bernard Johnson. When the

defendant returned to the dealership to execute the various documents, the police

arrested him, resulting in the three charges of which he stands convicted.



              The defendant testified that when he returned to the dealership, he

had actually decided to cancel the purchase. Moreover, he testified, that prior to

deciding to cancel the transaction, he had intended to repay the car loan, citing the

fact that he gave his true address to the would-be creditor.



              The trial court observed that the defendant had no previous criminal

history except for traffic offenses, had received a college degree, and had gained

experience working as a loan officer in a financial institution. However, the court

expressed antipathy toward the defendant’s using his social advantages, education

and experience in commercial transactions to devise a significant, “white collar”

fraud scheme. The court expressly stated that it disbelieved the defendant when

he claimed his crimes were spontaneous and impulsive and that he had not used

his expertise in devising the scheme from the time when he acquired Bernard

Johnson’s SSN and driver’s license facsimile.          The trial court found that

incarceration probably would not be a factor in assuring that the defendant would

not re-offend, that the defendant probably would follow the conditions of probation,

that society’s interest is not served by incarceration, and that less restrictive

measures than incarceration probably would work. Nevertheless, the count denied

judicial diversion and total probation, finding that some incarceration was necessary

to avoid depreciating the seriousness of the offense and in order to serve as a

suitable deterrent. The court cogently articulated its disagreement with the

notion, discerned from the defendant’s position, that educated, socially-advantaged

defendants with little or no criminal record are viewed as being entitled to probated



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sentences. The court questioned the law favoring this result, especially when such

“white collar” crime is often engendered by greed or avarice, while more needful

offenders are often dealt with more severely. The defendant characterizes the

court’s findings and conclusions as being arbitrary and indicative of the court’s

refusal to follow the law, namely the Sentencing Reform Act of 1989.



                       I. Principles of Sentencing Review.



              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).         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,” determines the range of sentence and then

determines the specific sentence and 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



                                          4
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.

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).



              In the present case, the trial court tangentially referred to some of the

principles of sentencing; however, the defendant is correct in asserting that the trial

court evinced a certain antipathy toward the sentencing law, especially insofar as

alternative sentencing principles relate to a defendant in Mr. Johnson’s situation.

Accordingly, we conduct our review without any presumption of correctness of the

manner of service of the defendant’s sentence.




                               II. Judicial Diversion.



              In his first issue, the defendant challenges the trial court’s denial of

judicial diversion. The Sentencing Reform Act of 1989 provides in pertinent part:



                                           5
       If any person who has not previously been convicted of a felony or a
       Class A misdemeanor is found guilty or pleads guilty to a
       misdemeanor which is punishable by imprisonment or a Class C, D
       or E felony, the court may, without entering a judgment of guilty and
       with the consent of such person, defer further proceedings and place
       the person on probation upon such reasonable conditions as it may
       require and for a period of time not less than the period of the
       maximum sentence for the misdemeanor with which he is charged, or
       not more than the period of maximum sentence of the felony with
       which he is charged, on condition that the defendant pay, in addition
       to the payment of not less than ten dollars ($10.00) nor more than
       thirty-five dollars ($35.00) per month, as determined by the court [as
       part payment of the expenses of supervision of the defendant] . . .

Tenn. Code Ann. § 40-35-313(a)(1) (1997). The procedure under this provision is

commonly referred to as judicial diversion. It is substantially similar to pretrial

diversion; however, judicial diversion follows a guilt determination and the decision

to grant diversion rests with the court, not the prosecutor. State v. Anderson, 857

S.W.2d 571, 572 (Tenn. Crim. App. 1992).



               The lower court’s denial of judicial diversion is subject to appellate

reversal only if that court abused its discretion. State v. Hammersley, 650 S.W.2d

352, 356 (Tenn. 1983).        When a defendant challenges the denial of judicial

diversion, we are constrained not to revisit the issue if the record contains any

substantial evidence supporting the trial court’s decision. Hammersley, 650 S.W.2d

at 356; accord State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993) (where

the evidence is capable of justifying differing results in a pretrial diversion case, this

court allows the prosecutor his or her discretion on a decision of whether to allow

diversion).



               In determining whether to grant judicial diversion, the trial court must

consider

       (a) the accused’s amenability to correction, (b) the circumstances of
       the offense, (c) the accused’s criminal record, (d) the accused’s social
       history, (e) the status of the accused’s physical and mental health, (f)
       the deterrence value to the accused as well as others, and (g)
       whether diversion will serve the public’s and the accused’s interests
       in the ends of justice.


State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (citation omitted).



                                            6
Moreover, the record must reflect that the court has weighed all of the factors in

reaching its determination. Id., 871 S.W.2d at 168 (citations omitted). The court

must explain on the record why the defendant does not qualify under its analysis,

and if the court has based its determination on only some of the factors, it must

explain why these factors outweigh the others. Id., 871 S.W.2d at 168.



              The trial court did not explain whether it had considered all of the other

factors, and under the dictate of Bonestel, the trial court’s analysis does not

adequately appear of record. The question remains, however, whether the trial

court reached the correct result notwithstanding its failure to explain its analysis on

the record. See State v. Talmadge G. Wilbanks, No. 02C01-9601-CR-00003 (Tenn.

Crim. App., Jackson, Nov. 19, 1996) (trial court’s denial of diversion affirmed despite

court’s failure to explain its considerations and analysis on the record).



              We cannot conclude that the court abused its discretion in denying

judicial diversion. The trial court determined the defendant was untruthful, or at

least lacked candor, in that he maintained his actions were spontaneous or

impulsive.   The defendant’s characterization of his actions is belied by his

successful scheme to obtain a bogus driver’s license. We believe this lack of

candor with the trial court weighs against his amenability to correction. See State

v. Paul Emile Oliver, No. 03C01-9510-CC-00332 (Tenn. Crim. App., Knoxville, July

15, 1996) (denial of pretrial diversion upheld based upon appellant’s inconsistent

statements to the trial court about his involvement in drug sales prior to

apprehension); State v. Nease, 713 S.W.2d 90 (Tenn. Crim. App. 1986) (defendant

who was untruthful with trial court appropriately denied diversion).



              This court has said that the presence of only one of the factors is

sufficient to support a denial of judicial diversion. State v. Thomas Dailey, No.

02C01-CR-00008 (Tenn. Crim. App., Jackson, Aug. 21, 1991) (relying on State v.

Baron, 659 S.W.2d 811 (Tenn. Crim. App. 1983) (applying this rule in the context



                                          7
of a denial of probation)). The trial court had the opportunity to hear and see the

defendant testify, and we must defer to the trial court’s conclusion that the

defendant lacked candor. Therefore, the Bonestel “amenability to correction” factor

adequately supports the denial of judicial diversion.



                    III. Alternative Sentencing - Probation.



              Having qualified pursuant to Tennessee Code Annotated section 40-

35-102(6) (1997), the defendant is presumed to be a favorable candidate for

alternative sentencing. Moreover, he is eligible for probation. See Tenn. Code Ann.

§ 40-35-303(a) (1997). He argues he should receive straight probation, rather than

periodic confinement.



             First, we point out that the defendant did receive an alternative

sentence. Split or periodic confinement is an alternative sentencing option. See

State v. James A. Howard, No. 03C01-9608-CC-00284, slip op. at 7 (Tenn. Crim.

App., Knoxville, February 24, 1997), appl. perm. app. dismissed (Tenn. 1997); State

v. James E. Allred, No. 03C01-9504-CR-00110, slip op. at 2 (Tenn. Crim. App.,

Knoxville, March 20, 1996); State v. Marjorie Jeanette Sneed, No. 03C01-9410-CR-

00369, slip op. at 3 (Tenn. Crim. App., Knoxville, October 17, 1995); State v. Danny

Allison, No. 03C01-9403-CR-00106, slip op. at 3 (Tenn. Crim. App., Knoxville,

March 23, 1995); State v. Alvin Lee Lewis, No. 01C01-9404-CC-00125, slip op. at

7-8 (Tenn. Crim. App., Nashville, March 14, 1995), perm. app. denied (Tenn. 1995);

see Tenn. Code Ann. § 40-35-104(c) (1997). The benefit the defendant enjoyed in

being presumed a suitable candidate for alternative sentencing has been depleted.



             Accordingly, we move to the question of probation. The defendant

seeks total probation. Probation is, indeed, an alternative sentencing option. Tenn.

Code Ann. § 40-35-104(c)(3) (1997); Tenn. Code Ann. § 40-35-303(b) (1997).

However, the burden rests with the defendant to show that he is entitled to



                                         8
probation. Tenn. Code Ann. § 40-35-303(b) (1997); see State v. Bingham, 910

S.W.2d 448, 455 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995). In Bingham,

this court observed:

       It should be pointed out that determining whether a defendant is
       entitled to an alternative sentence necessarily requires a separate
       inquiry from that of determining whether the defendant is entitled to
       full probation. This is so because the inquiries involve different
       burdens of proof. Where a defendant is entitled to the statutory
       presumption of alternative sentencing, the state has the burden of
       overcoming the presumption with evidence to the contrary.
       Conversely, the defendant has the burden of establishing suitability
       for full probation, even if the defendant is entitled to the statutory
       presumption of alternative sentencing.

Bingham, 910 S.W.2d at 455. To prevail in the quest for full probation, a defendant

must demonstrate that probation “will ‘subserve the ends of justice and the best

interest of both the public and the defendant.’” Id., 910 S.W.2d at 456 (quoting State

v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). In Bingham, we cited the

following factors which, although “not controlling the discretion of the sentencing

court,” should be considered in determining the appropriateness of probation:

       (1) The nature and characteristics of the crime, under Tenn. Code
       Ann. § 40-35-210(b)(4) (1990);
       (2) the defendant’s potential for rehabilitation under Tenn. Code Ann.
       § 40-35-103(5) (1990);
       (3) whether full probation would “unduly depreciate the seriousness
       of the offense,” under Tenn. Code Ann. § 40-35-103(1)(B) (1990); and
       (4) whether a sentence of full probation would “provide an effective
       deterrent,” under Tenn. Code Ann. § 40-35-103(1)(B) (1990).

Bingham, 901 S.W.2d at 456.



              The defendant correctly asserts that the court’s reliance upon

deterrence is unsupported in the record. See State v. Davis, 940 S.W.2d 558, 560

(Tenn. 1997); State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991). 1

       1
               We are aware that a document appears in the technical record
which bears the caption “presentence report,” and this document contains a
victim impact statement. This statement includes declarations of an officer of the
corporate victim which reveal that this victim suffered other thefts which resulted
in a large aggregate loss. We do not even determine if such information serves
as evidence of a need for deterrence because the presentence report which
contains the statement is not in evidence. Other aspects of the presentence
report are in evidence through the testimony of the defendant, but the report
itself was not exhibited to the sentencing hearing by the trial judge. Its
appearance in the technical record certified by the trial court clerk is meaningless
from an evidentiary standpoint. State v. Cooper, 736 S.W.2d 124, 131 (Tenn.
Crim. App. 1987); see Tenn. R. App. P. 13(c); see also State v. Jerry Blaylock,

                                          9
The court’s ruling cannot be justified by any need for deterrence. Hartley, 818

S.W.2d at 375.



              Consequently, the only remaining bases relied upon by the court for

supporting its decision are the need to avoid depreciating the seriousness of the

offense, see Tenn. Code Ann. § 40-35-103(1)(B) (1997), and the perceived lack of

candor. We need not discuss the claim that the trial court improperly determined

that confinement was necessary to avoid depreciating the seriousness of the

offense, however, because, as discussed in the preceding section of this opinion,

the trial court perceived a lack of candor, if not mendacity, in the defendant’s

explanation of his offense.



              A lack of candor, bearing upon the defendant’s amenability to

probation, is a recognized basis for denying probation. State v. Neely, 678 S.W.2d

48, 49 (Tenn. 1984); State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993);

State v. Poe, 614 S.W.2d 403 (Tenn. Crim. App. 1981). Accordingly, we cannot

conclude that the trial court abused its discretion in ordering periodic confinement.




              The judgment of the trial court is affirmed.



                                          _________________________
                                          CURWOOD WITT, JUDGE

CONCUR:


______________________________
JOE B. JONES, PRESIDING JUDGE


______________________________
JERRY L. SMITH, JUDGE




No. 02C01-9602-CC-00069, slip op. at 15, n. 2 (Tenn. Crim. App., Jackson, Aug.
21, 1997), pet. for perm. app. filed (Tenn. Oct. 20, 1997).

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