          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON                FILED
                           MARCH SESSION , 1999             June 25, 1999

                                                        Cecil Crowson, Jr.
                                                       Appellate Court Clerk
STATE OF TENNESSEE,               )    C.C.A. NO. 02C01-9804-CR-00100
                                  )
            Appellee,             )
                                  )    SHELBY COUNTY
V.                                )
                                  )
                                  )    HON. BERNIE WEINMAN, JUDGE
WILL IE L. W ALES,                )
                                  )
            Appe llant.           )    (BURGLARY OF A BUILDING)



FOR THE APPELLANT:                     FOR THE APPELLEE:

CRAIG V. MO RTO N, II                  JOHN KNOX WALKUP
200 Jefferson, Suite 725               Attorney General & Reporter
Memphis, TN 38103
                                       GEORGIA BLYTHE FELNER
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       JOH N W. P IERO TTI
                                       District Attorn ey Ge neral

                                       JOHN MARSHALL
                                       Assistant District Attorney General
                                       Criminal Justice Center, Suite 301
                                       201 Poplar Avenue
                                       Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       The Defendant, Willie L. Wales, appeals as of right following his sentencing

in the Shelby County Criminal Court. Defen dant pled gu ilty to a charge of burglary

of a building, a Class D felony, in violation of Tennessee Code Annotated section 39-

14-402. Pursuant to the terms of the plea agreement, Defendant was to receive a

three (3) yea r sente nce w ith the tria l court to determ ine the man ner of s ervice o f his

sentence. The trial court denie d altern ative se ntenc ing an d the D efend ant ap peals

on this ba sis. W e affirm the judgm ent of the tria l court.



       When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the de termina tions ma de by the trial court are correct. Tenn. Code

Ann. § 40-35 -401(d). This p resum ption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing princip les an d all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code Ann. § 40-35-1 02, -103 , and -21 0; see State v. S mith, 735 S.W.2d 859,

863 (Ten n. Crim. App . 1987).



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      If our review reflects tha t the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, the n we m ay not m odify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).



      A defen dant w ho “is an especially mitigated or standard offender convicted of

a Class C, D or E felony is presumed to be a favorab le candidate for a lternative

sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102(6). 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

incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to

eight (8) years or less who is not an offender for who m inc arcera tion is a priority 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 circu mstan ces pre sented in each c ase. See State v.

Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).



      Additionally, the principles of sentencing reflect that the sentence should be

no greater than that deserved for the offense committed and should be the least

severe measure necessa ry to ach ieve the purpo ses fo r which the se ntenc e is

imposed. Tenn . Code Ann. § 4 0-35-10 3(3) - (4). The court should also consider the

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potential for rehab ilitation o r treatm ent of th e defe ndan t in determining the sentence

alternative. T enn. C ode An n. § 40-3 5-103(5 ).



         At the sentencing hearing, Defendant testified regarding the circumstances of

the offens e. On May 1 9, 199 7, his car stalled and he went into someone’s garage

to retrieve a pair of pliers. Defendant admitte d that he knew he should n ot have

entered that person’s garage. Defendant stated he had twelve (12) prior convictions,

including: burglary, occurring once on May 22, 1994 and again on August 12, 1993;

theft,   two (2) separate convictions on             January 9, 1993; driving on a

suspended/revoked license on January 2, 1997 and October 20, 1996, and various

drug offenses. Admittedly, he was on probation when he committed some of these

offenses.      He conceded during the hearing that he had an “unsuccessful

rehabilitative history,” but argues that does not tota lly negate the m itigating factors

and his e ligibility for Com munity C orrection s.



         The trial court denied any form of alternative sentencing based upon the

Defe ndan t’s lack of candor and his prior record. In sentencing the Defendant, the

trial court stated:

         Mr. Wa les, the only reason I was interested in the age of your bro thers
         and sisters was because I wanted to know if you were telling the truth.
         We ’re just going back to hon esty. M r. W ales, yo u’ve be en a h orrible
         citizen of this country. All the wa y from Texa s to Tenne ssee. You’ve
         caused a great deal of aggravation and proble ms w ith our w hole
         system , with our wh ole coun try. . . .

         I don’t know if you w ere on strict supe rvision or not, Mr. Wales,
         because I see you we re on proba tion for five years; and it mu st have
         worked really well because three years later you got another two year
         sentence. . . . [T]his com munity and this country and the people ha ve
         a right to be protected.

         I find it interesting -- and I don’t know , I haven’t checked -- but I noticed
         you said that you we re there because your car had stopped. I find that

                                              -4-
      really interesting because four months before that I see you were
      convicted of driving on a revoke d license. Now , maybe the y were
      reinstated in that four months. It seems to me if that’s not the case, you
      shou ldn’t have been driving at all. Your car couldn ’t have stalled on you
      becau se you w ouldn’t ha ve been driving it.

In summation, the trial court found that the Defendant was “a classic case of

someone that society need s to be protected from,” and denied his petition for

alternative s entenc ing.



      W hile the trial court did not specify that it was relying upon factor (1)(A) of

Tennessee Code Annotated section 40-35-103, it is apparent from his findings that

he relied upo n the fact that co nfinement was necessary to protect society by

restraining a defen dant with a long histo ry of crimina l conduc t. The presentence

report adequately reflects the lengthy criminal history of the Defendant. Included

within the report were the following charges:

      Evading Arrest                            5/19/97
      DWLSCR                                    1/2/97
      Operate MV w/Expired Tags                 1/2/97
      Failure to Appear                         12/28/96
      DWLSCR                                    10/20/96
      Burglary                                  5/22/94
      Burglary                                  8/12/93
      Theft of Property under $500              1/9/93
      Theft of Property over $500 (3 cts)       1/9/93
      PCS                                       1/9/93
      Theft of Property under $500              8/20/92
      Theft of Property over $500               6/22/92
      DWLSCR                                    6/22/92
      Burglary of Home                          1/24/89
      Burglary of Home                          8/15/84
      Delivery of Cont. Substance               8/15/84
      Marijuana Possession                      3/16/82
      Marijuana Possession                      12/20/79
      Burg larizing Vehic le                    10/1/76

As acknowledged by the Defendant, his rehabilitative history following these

offenses ha s been “un successfu l.”




                                          -5-
         W hile the Community Corrections Act allows certain elig ible offend ers to

participate in community-based alternatives to incarceration, a defendant must first

be a suitable candida te for alternative sentencing. Tenn. Code Ann. § 40-36-103.

W hile Defendant does meet the eligibility requirements of Tennessee Code

Annotated section 40-36-106(a), the Act does not pro vide tha t the offe nder is

autom atically entitled to su ch relief. State v. Grand berry, 803 S.W.2d 706, 707

(Tenn. Crim. A pp. 199 0); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.

1987).     The potential or lack of potential for rehabilitation was approp riately

considered by the trial court in determining that Defendant should not be granted an

alternative s entenc e. Tenn . Code Ann. § 4 0-35-10 3(5).



         In addition, the trial court considered Defendant’s lack of candor with the court

as proba tive of his prosp ect for re habilita tion. De fenda nt’s lack of truthfu lness at his

sentencing hearing was g erma ne to h is rehabilitation potential. State v. Zeolia , 928

S.W.2d 457, 463 (Tenn. Crim. App. 1996) (citations omitted). While Defendant

argues that the trial court failed to consider any relevant mitigating factors under

Tennessee Code Annotated section 40-35-113, our review fails to find any w hich are

applic able and capable of overshad owing his ow n prior fa ilures to confo rm his

conduct to the law. Where the defendant’s history indicates a clear disregard for the

law and m orals of so ciety and a failure of pa st efforts to rehabilitate, the trial court

did not abuse its discretion in denying an alterna tive senten ce. State v. Chrisman,

885 S.W .2d 834, 840 (Tenn. Crim . App. 1994 ).



         We affirm the ju dgme nt of the trial co urt.




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                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge



___________________________________
JOSEPH M. TIPTON, Judge




                               -7-
