            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

                  STATE OF TENNESSEE v. JEFFREY A. BURNS

                 Direct Appeal from the Circuit Court for Williamson County
                          No. II-1198-373 Timothy Easter, Judge



                    No. M1999-00873-CCA-R3-CD - Decided June 2, 2000


                The defendant appeals from his Class C felony conviction of possession of a
controlled substance in an amount less than .5 grams. Tenn. Code Ann. § 39-17-417 (Supp. 1998).
After entering a best interest guilty plea, the defendant was sentenced to five years in the Department
of Correction as a Range I standard offender and fined $2000. In this appeal, the defendant
challenges the sentence imposed. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which WADE, P.J., and
WOODALL , J., joined.

John H. Henderson, District Public Defender, Vanessa Pettigrew Bryan, Assistant Public Defender,
for the appellant, Jeffrey A. Burns.

Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General,
Ronald L. Davis, District Attorney General, Robert Hassell, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

                The defendant, Jeffery A. Burns, appeals from his Class C felony conviction of
possession of a controlled substance in an amount less than .5 grams. Tenn. Code Ann. § 39-17-
417 (Supp. 1998). The defendant entered a best interest guilty plea, and the trial court sentenced
him to five years in the Department of Correction as a Range I standard offender and fined him
$2000. In this appeal, the defendant complains that the trial court failed to grant him an
alternative sentence and did not properly balance the enhancement and mitigating factors.
Following a review of the record and the briefs of the parties, we affirm the judgment of the trial
court.

               The defendant’s guilty plea was based upon an incident which occurred in
October 1998. At that time, deputies of the Williamson County Sheriff’s Department stopped a
car with a broken tail-light. The driver was the defendant’s girlfriend. The defendant, who
apparently was not in the car, approached the deputies and began arguing with them about why
they stopped his girlfriend. The deputies ran a computer check on the defendant and found an
outstanding warrant against him. They arrested and transported the defendant to the justice
center. The transporting deputy searched his patrol car after delivering the defendant to the
justice center and found a plastic bag containing a white, rocky substance. The bag was found
under the seat where the defendant sat. The substance was determined to be .5 grams of cocaine.

                 The defendant contends he should have been granted some form of alternative
sentencing. He also contends that the trial court did not properly balance the enhancement and
mitigating factors. 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. 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." 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 defendant's behalf
about sentencing, and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§ 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-35-103(5) (1997); 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). However,
a defendant who commits “the most severe offenses, possess[es a] criminal histor[y] evincing a
clear disregard for the laws and morals of society, and [has failed] past efforts at rehabilitation”
does not enjoy the presumption. See Tenn. Code Ann. § 40-35-102(5), (6) (1997). A defendant
who meets the criteria of section 40-35-102(6) is presumed eligible for alternative sentencing
unless sufficient evidence rebuts the presumption. This presumption in favor of alternative
sentencing may be rebutted if (1) “confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct,” (2) “confinement is necessary to avoid
depreciating the seriousness of the offense or confinement is particularly suited to provide an
effective deterrence to others likely to commit similar offenses,” or (3) “measures less restrictive

                                                -2-
than confinement have frequently or recently been applied unsuccessfully to the defendant.”
Tenn. Code Ann. § 40-35-103(1)(A)-(C) (1997); see Ashby, 823 S.W.2d at 169. Furthermore,
the defendant’s potential for rehabilitation or lack thereof should be examined when determining
whether an alternative sentence is appropriate. Sentencing issues are to 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 was eligible for probation because his sentence was five years.
See Tenn. Code Ann. § 40-35-303(a) (1997). In determining whether to grant probation, the trial
court must consider the nature and circumstances of the offense, the defendant's criminal record,
his background and social history, his present condition, including his physical and mental
condition, the deterrent effect on other criminal activity, and the likelihood that probation is in
the best interests of both the public and the defendant. See Stiller v. State, 516 S.W.2d 617, 620
(Tenn. 1974). The defendant bears the burden of establishing suitability for probation, even
when the defendant is presumed to be suitable for alternative sentencing. See Tenn. Code Ann. §
40-35-303(a), (b) (1997).

              In the present case, the trial court's sentencing determination is entitled to the
presumption of correctness because the record reflects that it considered the relevant sentencing
principles.

                 The defendant, although a Range I standard offender, does not enjoy the
presumption of favorable candidacy for alternative sentencing for the offenses involved in this
case. See Tenn. Code Ann. § 40-35-102(5), (6) (1997). At the age of twenty-one, the defendant,
as an adult, has two assault convictions and one felony conviction. As a juvenile, he pleaded
guilty to an aggravated robbery charge in which the victim was shot in the face. Additionally, the
defendant violated the terms of his probation for one of the assault convictions, and he
committed the offense at bar while on bail for the felony offense. The defendant, in his short life,
has shown a “clear disregard for the laws and morals of society” and has shown a “failure of past
efforts at rehabilitation.” Tenn. Code Ann. § 40-35-102(5) (1997); see, e.g., State v. Grigsby,
957 S.W.2d 541, 545 (Tenn. Crim. App. 1997) (Range II, multiple offender defendant not
presumed eligible for alternative sentencing where defendant had criminal history and committed
present offense while on probation); State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App.
1996) (“in order to benefit from the presumption, the defendant cannot have a criminal history
evincing either a ‘clear disregard for the laws and morals of society’ or ‘failure of past efforts at
rehabilitation’”); State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995) (“to be
entitled to the statutory presumption of alternative sentencing, . . . the defendant cannot have a
criminal history evincing either ‘clear disregard for the laws and morals of society’ or ‘failure of
past efforts at rehabilitation’") (emphasis added). Also, because the defendant had violated
probation less than 18 months before committing the offense at bar, contrary to what the
defendant alleges in his brief, the record supports a finding that confinement was necessary
because "measures less restrictive than confinement have . . . recently been applied
unsuccessfully to the defendant." Tenn. Code Ann. § 40-35-103(1)(C) (1997). Additionally, the


                                                -3-
trial court implicitly found the defendant was not amenable to rehabilitation because measures
less restrictive than confinement had proven unsuccessful. See Tenn. Code Ann. § 40-35-103(5)
(1997); see also State v. Jeffery Russell Utley, No. 02C01-9812-CC-00385, slip op. at 5 (Tenn.
Crim. App., Jackson, Sept. 3, 1999) (total confinement warranted because of defendant’s failure
to abide by rules and regulations of previous alternative sentences). Furthermore, considering
that the defendant was incarcerated between the ages of 16 and 19, and he was only 21 years old
at sentencing, we conclude that the defendant also has a long history of criminal conduct. See
Tenn. Code Ann. § 40-35-103(1)(A) (1997). Although the criminal conduct does not extend for
a lengthy period, it does cover the defendant’s complete adult life. The trial court correctly
determined that the defendant was not a favorable candidate for alternative sentencing.

               Using the same bases which supported this conclusion, we further must conclude
that the defendant failed to carry his burden to establish suitability for probation. His criminal
record and poor potential for rehabilitation belie his claim to probation.

                Turning to another form of alternative sentencing, an offender is eligible for the
Community Corrections program, if he meets certain criteria, including “not demonstrat[ing] a
present or past pattern of behavior indicating violence.” Tenn. Code Ann. § 40-36-106(a)(6)
(1997). The trial court found that the defendant was not an appropriate candidate for the
Community Corrections program because of his pattern of committing violent offenses. This
finding is amply supported by the record, which shows the defendant’s two assault convictions.
We are also mindful of the defendant’s juvenile record which indicated that a victim was shot in
the face during a robbery.

               Accordingly, we conclude the evidence supports a sentence of total confinement.

                We now turn to the defendant's complaint that his sentence is too lengthy. The
trial court enhanced the defendant’s Range I sentence from the three year minimum to five years,
one year less than the maximum. The trial court based the sentence upon enhancement factor (1),
the defendant’s previous history of criminal convictions, factor (8), the defendant’s previous
unwillingness to comply with a probated sentence, factor (13)(A), the felony was committed
while on bail for another felony for which he was ultimately convicted, and factor (20), the
defendant committed a delinquent act as a juvenile that would constitute a felony if committed by
an adult. Tenn. Code Ann. § 40-35-114(1), (8), (13), (20) (1997). The trial court found
mitigating factors (1), defendant’s conduct neither caused nor threatened serious bodily injury,
and (6), defendant lacked substantial judgment in committing the offense because of his youth.
Tenn. Code Ann. § 40-35-113(1), (6) (1997).

                Enhancement factor (1) regarding the defendant's prior criminal history was
applicable, although we recognize that both the prior assault convictions were misdemeanors.
See Tenn. Code Ann. § 40-35-114(1). However, we are also mindful that the defendant was only
21 at the sentencing hearing, and during his short adult life, he had also been convicted for sale
of a counterfeit controlled substance, a Class E felony, before committing the offense at bar.


                                                -4-
               Enhancement factor (8), the defendant’s unwillingness to comply with the
conditions of a sentence involving release into the community, was applicable. See Tenn. Code
Ann. § 40-35-114(8). The defendant argues that there was no evidence showing why his
probation was revoked. The defendant’s argument is not well taken. The enhancement factor is
properly applied for probation violations, regardless of the reason for the violation. See Tenn.
Code Ann. § 40-35-114(8); see, e.g., State v. Anderson, 985 S.W.2d 9, 20 (Tenn. Crim. App.
1997) (applying factor (8) for previous probation violation).

                Enhancement factor (13), the offense was committed while the defendant was on
bail for another felony offense for which he was convicted, was applicable. See Tenn. Code
Ann. § 40-35-114(13)(A). The record shows that the defendant was released on bail for the
Class E felony of sale of a counterfeit controlled substance when he committed the offense at bar.
 He was ultimately convicted of that offense at a jury trial.

                 Enhancement factor (20), the defendant was adjudicated delinquent as a juvenile
for conduct which would be a felony if committed by an adult, was applicable. See Tenn. Code
Ann. § 40-35-114(20). The record shows that the defendant was originally charged with
committing especially aggravated robbery as a juvenile. The defendant pleaded guilty to
aggravated robbery and was adjudicated to be delinquent. Aggravated robbery, if committed by
an adult, is a Class B felony. See Tenn. Code Ann. § 39-13-402 (1997). The defendant argues
that applying this enhancement factor essentially penalizes him twice, considering that
enhancement factor (1) regarding his prior criminal history was applicable. We are not
persuaded. Factor (1) was based upon the defendant’s conduct as an adult, whereas factor (20)
was based upon the defendant’s juvenile record. Application of the two enhancement factors was
based upon mutually exclusive instances of conduct by the defendant. See State v. Anthony T.
Jones, No. 03C01-9807-CR-00245 (Tenn. Crim. App., Knoxville, July 14, 1999) (finding error
where court considered juvenile adjudication of delinquency in applying enhancement factor (1));
State v. Brent Brown, No. 02C01-9710-CC-00419 (Tenn. Crim. App., Jackson, Oct. 26, 1998)
(factor (20) is “the exclusive factor for enhancing a sentence based on a defendant's juvenile
record").

               The defendant has not overcome the presumption of correctness with regard to
any of these enhancement factors.

                The trial court applied the mitigating factor that the “defendant's criminal conduct
neither caused nor threatened serious bodily injury." Tenn. Code Ann. § 40-35-113(1) (1997).
The trial court also applied the mitigating factor that the “defendant, because of youth . . . ,
lacked substantial judgment in committing the offense.” Tenn. Code Ann. § 40-35-113(6)
(1997). The trial court accorded both mitigating factors minimal weight. The trial court was
generous. See, e.g., State v. Vanderford, 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997) (holding
that mitigating factor (1) “should not be applied when the defendant is convicted of an offense
involving cocaine”); State v. Leggs, 955 S.W.2d 845, 850 (Tenn. Crim. App. 1997) (holding that
application of mitigating factor (6) for twenty-one year old defendant was inappropriate where


                                                -5-
record was devoid of any evidence that defendant lacked substantial judgment to appreciate the
nature of his conduct). However, given the presumption of correctness, we must defer to the trial
court to weigh the enhancement and mitigation factors.

                The defendant asks us to apply as mitigating factors that he had worked to care for
his child and that he had received a G.E.D. See Tenn. Code Ann. § 40-35-113(13) (1997)
(permitting mitigation through the use of any other factor consistent with the purposes of the
Sentencing Reform Act). We decline the defendant’s request. The record reflects that the only
evidence offered supporting the defendant’s claim that he supported his out-of-wedlock child
was introduced by the probation officer, who testified that the defendant told him that he
supported his child. The officer further testified that he did not have sufficient time after hearing
the defendant’s statement to confirm it. This self-serving statement, without more, is insufficient
for use as a mitigating factor. Also, we note that it is the duty of every citizen of this state to care
for his minor children. See State v. John Allen Chapman, No. 01C01-9604-CC-00137, slip op.
at 41 (Tenn. Crim. App., Nashville, Sept. 30, 1997) (catchall factor not applicable because
“support of a dependent is by law an obligation and a duty”); but see State v. Jerry Keith Ivey,
No. 03C01-9509-CR-00292 (Tenn. Crim. App., Knoxville, Dec. 3, 1996) (combining lack of
criminal history, good employment history, and family social activity into a single mitigating
factor). With respect to the defendant acquiring a G.E.D., the defendant is the beneficiary of his
education, and it is up to him to use it to his advantage. See State v. Carl M. Hayes, No. 01C01-
9509-CC-00293 (Tenn. Crim. App., Knoxville, Oct. 24, 1996) (holding that fact that defendant
finished his education is not ordinarily a mitigating factor).

                The trial court's judgment is affirmed.




                                                  -6-
