            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                          SEPTEMBER 1997 SESSION
                                                        December 3, 1997

                                                     Cecil W. Crowson
STATE OF TENNESSEE,           *    C.C.A. # 01C01-9611-CC-00460 Clerk
                                                   Appellate Court

             Appellee,        *    ROBERTSON COUNTY

VS.                           *    Hon. Robert W . Wedemeyer, Judge

JOSEPH PATTERSON,             *    (Forgery)

             Appellant.       *




For Appellant:                     For Appellee:

Michael R. Jones                   Charles W. Burson
Public Defender                    Attorney General and Reporter
Nineteenth District
110 Sixth Avenue, West             Daryl J. Brand
Springfield, TN 37172              Assistant Attorney General
                                   Criminal Justice Division
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Dent Morriss
                                   Assistant District Attorney General
                                   500 South Main Street
                                   Springfield, TN 37172




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Joseph Patterson, entered pleas of guilt to three

counts of passing a forged instrument. The trial court imposed Range III, four-year

sentences on each count, all of which are to be served concurrently in the

Department of Correction. At the time of sentencing, the defendant had

approximately eight months in jail credits.



              In this appeal of right, the defendant complains that he should have

been granted an alternative sentence.



              On September 25 and 26 of 1995, the defendant passed three forged

checks in the amounts of $35.00, $75.00, and $150.00. Although not written by the

defendant, the defendant cashed the checks and used the money to purchase crack

cocaine.



              The defendant, thirty-six years of age, was homeless at the time of the

sentencing hearing. He has one child, five years old at that time, who lives with her

grandmother. The defendant acknowledged that he was an alcoholic and that he

was addicted to cocaine. The defendant has a sporadic work record. He is a farm

worker during the summer months and occasionally does odd jobs such as mowing

or raking yards. He takes medication for an illness and has received some disability

payments. The defendant was diagnosed HIV-positive in 1990.



              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 with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). The presumption is "conditioned upon the affirmative showing


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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

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

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

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and circumstances of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's application for

probation or any other alternative sentence are the circumstances of the offense,

the defendant's prior criminal record, social history, present condition, and the

deterrent effect upon and best interest of the defendant and the public. State v.

Grear, 568 S.W.2d 285, 286 (Tenn. 1978). Especially mitigated or standard

offenders convicted of Class C, D, or E felonies are presumed to be favorable

candidates "for alternative sentencing options in the absence of evidence to the

contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions,

none of which apply here, probation must be automatically considered by the trial

court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-

303(a).   Because the defendant is a Range III offender, he is not presumed to be a

favorable candidate for alternative sentencing options. Tenn. Code Ann. § 40-35-

102(6).




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              The trial court found two mitigating factors. It ruled that the defendant

played a minor role in the offense and that his conduct neither caused nor

threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1) and (4). Thus,

the trial court imposed the minimum sentence possible for a Range III offender.

Tenn. Code Ann. § 40-35-112(c)(5). Service of forty-five percent is required by a

Range III offender. Tenn. Code Ann. § 40-35-501(e).



              Only five months before this offense, the defendant received a

sentence which included a four-year term of probation. A sentencing consideration

is whether measures that did not include confinement had "recently been applied

unsuccessfully to the defendant." Tenn. Code Ann. § 40-35-103(1)(C). The

defendant has a prior criminal record which began as early as 1987 and which

includes convictions for burglary (two counts), attempted burglary, grand larceny,

and a sale of cocaine. The forgeries were committed while the defendant was on

probation for the most recent burglary conviction. All of that, in our view, suggests a

lack of amenability for rehabilitation. For these reasons, the trial court had a

reasonable basis for the denial of an alternative sentence. The sentence of

confinement is appropriate under these circumstances.



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge




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CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
Curwood Witt, Judge




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