         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 20, 2008

           STATE OF TENNESSEE v. ANTONIO MAURICE BATTS

                    Appeal from the Criminal Court for Davidson County
                           No. 2006-A-636    Steve Dozier, Judge



                    No. M2007-02269-CCA-R3-CD - Filed October 6, 2008


The defendant, Antonio Maurice Batts, pleaded guilty in the Davidson County Criminal Court to one
count of aggravated assault in exchange for a six-year sentence, with the manner of service of the
sentence to be determined by the trial court. The trial court ordered a fully incarcerative sentence,
and the defendant now appeals. Because the record supports the denial of probation, the judgment
of the trial court is affirmed.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and CAMILLE R. MCMULLEN , J., joined.

Jeffrey Devasher (on appeal), and John Gichner and C. Dawn Deaner (at trial), Assistant Public
Defenders, for the appellant, Antonio Maurice Batts.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Pamela Anderson and Amy Eisenbeck,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

               A Davidson County Criminal Court grand jury indicted the defendant, Antonio
Maurice Batts, on one count of aggravated robbery based upon an August 9, 2005 altercation with
the victim, Adrian Wilson. On July 12, 2007, the defendant entered a plea of guilty to a reduced
charge of aggravated assault in exchange for a six-year sentence, the manner of service of which was
to be determined after a sentencing hearing.1 The State offered the following factual basis at the plea
submission hearing:

                   On August the ninth, two thousand and five (August 9, 2005), in the
                   evening time, Adrian Wilson was walking down Fourteenth Avenue
                   North, here in Nashville, Davidson County.

                                 Claude Knight was walking next to him. The
                   defendant was on a porch. When he saw Mr. Wilson[,] he left the
                   porch and came through a yard area and approached Mr. Wilson and
                   Mr. Knight.

                                 The defendant had a weapon in his hand. He
                   approached and made statements about Mr. Wilson giving him
                   money, requesting money from Mr. Wilson.

                                There is a controversy. The defendant states that Mr.
                   Wilson owed him money, Mr. Wilson states that he . . . did not owe
                   him money.

                                   However, the defendant did have a nine millimeter
                   handgun in his hand as he made this request. And when Mr. Wilson
                   refused to give him any money[,] the defendant fired his weapon into
                   the ground.

                                   A shell casing was found at the location by the Metro
                   Police officers who responded to Mr. Wilson’s nine-one-one phone
                   call.

                                 The defendant did take the twenty dollars that Mr.
                   Wilson had in his possession.

Based upon this factual statement, the trial court accepted the defendant’s plea and scheduled a
sentencing hearing to determine the manner of service of the six-year, agreed sentence.

               The defendant offered no proof at the August 31, 2007 sentencing hearing but
nevertheless asked the trial court to suspend his entire sentence. As support for a probationary
sentence, the defendant asked the trial court to consider that he “did enter a best interests plea” and


         1
           The record establishes that the defendant entered his guilty plea under the terms of North Carolina v. Alford,
400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970), wherein the United States Supreme Court held that a criminal defendant may
enter a guilty plea without admitting guilt if the defendant intelligently concludes that his best interests would be served
by a plea of guilty.

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that he will remain incarcerated until the completion of a previously imposed sentence in 2009. At
the conclusion of the hearing, the trial court ordered a fully incarcerative sentence, finding that
incarceration was necessary because the defendant “has a long history of criminal conduct” and
“probation [was] revoked on the prior aggravated assault, probation [was] revoked on the prior
felony drug conviction.”

                  On appeal, the defendant challenges the denial of full probation. He contends that
the trial court erred by ordering continuous confinement in the absence of a finding that incarceration
would have a deterrent effect. The State asserts that a fully incarcerative sentence is appropriate.
We agree with the State.

                When a defendant challenges the manner of service of a sentence, this court generally
conducts a de novo review of the record with a presumption that the determinations made by the trial
court are correct. T.C.A. § 40-35-401(d) (2006). 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). The burden
of showing that the sentence is improper is upon the defendant. Id. If the 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 the event the record fails to
demonstrate the required consideration by the trial court, appellate review of the sentence is purely
de novo. Ashby, 823 S.W.2d at 169.

                In making its sentencing determination in the present case, the trial court, at the
conclusion of the sentencing hearing, was obliged to determine the propriety of sentencing
alternatives by considering (1) the evidence, if any, received at the guilty plea and sentencing
hearings, (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 made on his behalf about sentencing, and (7) the potential for rehabilitation or treatment.
T.C.A. § 40-35-210(a), (b); -103(5); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

               Because, in this instance, the sentence imposed is ten years or less, the trial court was
required to consider probation as a sentencing option. See T.C.A. § 40-35-303(a), (b). Nevertheless,
the defendant bears the burden of establishing his “suitability for full probation.” State v. Mounger,
7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. § 40-35-303(b); State v. Bingham, 910 S.W.2d
448, 455-56 (Tenn. Crim. App. 1995), overruled in part on other grounds by State v. Hooper, 29
S.W.3d 1, 9-10 (Tenn. 2000). In consequence, the defendant must show that probation will
“subserve the ends of justice and the best interest[s] of both the public and the defendant.” State v.
Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State, 297 S.W.2d 78, 81
(1956)), overruled on other grounds by Hooper, 29 S.W.3d at 9-10. Among the factors applicable
to probation consideration are the circumstances of the offense; the defendant’s criminal record,



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social history, and present condition; the deterrent effect upon the defendant; and the best interests
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

                Here, the record establishes that at the time of the sentencing hearing, the 29-year-old
defendant had three prior felony convictions and one prior misdemeanor conviction. At the time of
the offense, the defendant was on parole from a 1999 conviction of aggravated robbery. In addition
to the parole revocation that resulted from the conviction in this case, the record establishes that the
defendant had never successfully completed a sentence involving release into the community as each
of his previous probationary terms had ended in revocation. The defendant largely refused to
cooperate with the preparation of the presentence report and, as a result, no employment history is
listed. Given the defendant’s criminal history and failure to comply with any previous sentence
involving release, the trial court did not err by ordering a fully incarcerative sentence. See T.C.A.
§ 40-35-103(1)(A), (C).

               Accordingly, the judgment of the trial court is affirmed.

                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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