            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE              FILED
                          JANUARY 1998 SESSION
                                                       February 18, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )    C.C.A. NO. 01C01-9703-CC-00103
             Appellee,            )
                                  )    HICKMAN COUNTY
VS.                               )
                                  )    HON. CORNELIA A. CLARK,
BRIAN KEITH HARDING,              )    JUDGE
                                  )
             Appellant.           )    (Sentencing)



FOR THE APPELLANT:                     FOR THE APPELLEE:


JOHN HENDERSON                         JOHN KNOX WALKUP
Public Defender                        Attorney General & Reporter

ELAINE B. BEELER                       KAREN M. YACUZZO
Asst. Public Defender                  Asst. Attorney General
P.O. Box 68                            450 James Robertson Pkwy.
Franklin, TN 37065                     Nashville, TN 37243-0493

                                       JOSEPH D. BAUGH
                                       District Attorney General

                                       RONALD DAVIS
                                       Asst. District Attorney General
                                       P.O. Box 937
                                       Franklin, TN 37065




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was indicted on several charges stemming from three

separate incidents. He was charged with two counts of aggravated burglary, one count

of theft of property valued at less than one thousand dollars ($1000), and two counts of

theft of property valued at less than five hundred dollars ($500). He ultimately pled guilty

to two counts of aggravated burglary and one count of theft of property valued at less

than five hundred dollars ($500). As part of the plea bargain, he agreed to three year

sentences for each of the aggravated burglaries and a thirty day sentence for the theft;

all of which were to run concurrently. A sentencing hearing was held to determine the

manner in which the defendant should serve his sentence. The trial court denied his

request for probation and ordered him to serve his sentences in the Tennessee

Department of Correction.



              In this appeal as of right, the defendant argues that the trial court erred

when it denied his request for probation. After a review of the record and applicable law,

we find no error and affirm the judgment of the court below.



              As the defendant entered a guilty plea, there are few facts in the record

regarding the offenses for which he was convicted. Only one witness testified at the

sentencing hearing and her testimony was not relevant to the instant convictions. The

defendant did not testify nor did he call anyone to testify on his behalf.



              The presentence report reflects that on September 25, 1995, the defendant

entered the home of Dwayne Jordan and took electronic equipment which he later sold

to a nearby pawn shop. On October 23, 1995, the defendant entered the home of Torrey



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Shelby and took a Nintendo game and game cartridge, a necklace, and some cash. On

June 28, 1995, the defendant took two newspaper vending machines. He evidently

confessed to at least two of the crimes.



              The presentence report further reflects that the defendant, who was twenty-

one years old at the time of sentencing, had been previously convicted of theft,

vandalism, and making a false report. For these convictions, he had been sentenced to

probation and thus was on probation when he committed the October 1995 offense. The

report also indicated that the defendant had been given a less than honorable discharge

from the United States Army after he had been AWOL for several months.                The

defendant reported a sporadic employment history: he worked approximately one month

at Pizza Hut, approximately two months at Domino’s, approximately two months for a

temporary service, and approximately six months at Wal-Mart.



              At the sentencing hearing, the defendant’s attorney told the court that since

the presentence report had been filed, the defendant had married and had been working

at Propper Sales, a distribution center primarily for military clothing. The defendant now

argues that he is a suitable candidate for probation.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments. 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).



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              Tennessee Code Annotated § 40-35-103 sets out sentencing considerations

which are guidelines for determining whether or not a defendant should be incarcerated.

These include the need "to protect society by restraining a defendant who has a long

history of criminal conduct," the need "to avoid depreciating the seriousness of the

offense," the determination that "confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses," or the determination that

"measures less restrictive than confinement have frequently or recently been applied

unsuccessfully to the defendant." T.C.A. § 40-35-103(1).



              In determining the specific sentence and the possible combination of

sentencing alternatives, the court shall consider the following: (1) any evidence from the

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

and the arguments concerning sentencing alternatives, (4) the nature and characteristics

of the offense, (5) information offered by the State or the defendant concerning enhancing

and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the defendant's

statements in his or her own behalf concerning sentencing. T.C.A. § 40-35-210(b). In

addition, the legislature established certain sentencing principles which include the

following:

              (5) In recognition that state prison capacities and the funds to
              build and maintain them are limited, 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 sentencing involving
              incarceration; and

               (6) A defendant who does not fall within the parameters of
               subdivision (5) and 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.



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T.C.A. § 40-35-102.



               After reviewing the statutes set out above, it is obvious that the intent of the

legislature is to encourage alternatives to incarceration in cases where defendants are

sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,

it is also clear that there is an intent to incarcerate those defendants whose criminal

histories indicate a clear disregard for the laws and morals of society and a failure of past

efforts to rehabilitate.



               The defendant complains that the court should not have denied his request

for probation. In determining whether the defendant should be granted probation, the

court must consider the defendant’s criminal record, social history, present physical and

mental condition, the circumstances of the offenses, the deterrent effect upon the criminal

activity of the accused as well as others, and the defendant’s potential for rehabilitation

or treatment. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993). In this

case, the sentencing court found that the defendant had a history of criminal convictions

and that measures less restrictive than confinement had been unsuccessful, given that

he committed one of the instant offenses while on probation. The trial court further noted

that the defendant had evidenced a clear disregard for the laws of this state and had

further evidenced a lack of potential for rehabilitation, given that the offenses occurred

over several months, indicating a sustained intention to violate the law.



               The evidence presented in the presentence report fully supports the trial

court’s findings. Furthermore, these findings clearly support the trial court’s conclusion

that probation is not proper for this defendant. The judgment of the trial court is therefore

affirmed.



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                                      __________________________________
                                      JOHN H. PEAY, Judge



CONCUR:



_______________________________
JERRY L. SMITH, Judge



_______________________________
THOMAS T. W OODALL, Judge




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