         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 25, 2003

               STATE OF TENNESSEE v. MAURICE WHITLOCK

                Direct Appeal from the Criminal Court for Hamilton County
                          No. 237553    Stephen M. Bevil, Judge



                                 No. E2002-01388-CCA-R3-CD
                                        April 29, 2003

Pursuant to a plea agreement, the Defendant pled guilty to aggravated assault, a Class C felony and
received a three-year sentence with the manner of service to be determined by the trial court.
Following a sentencing hearing, the trial court ordered that the Defendant serve his three-year
sentence in the Tennessee Department of Correction. The Defendant now appeals, arguing that the
trial court erred by failing to grant the Defendant probation or alternative sentencing. Finding no
error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and JOHN EVERETT WILLIAMS, JJ., joined.

Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public
Defender (on appeal); and Myrlene Marsa, Assistant District Public Defender (at trial), Chattanooga,
Tennessee, for the appellant, Maurice Whitlock.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Christopher D. Poole, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                  I. FACTUAL BACKGROUND

       The following evidence was presented at the Defendant’s sentencing hearing. Anita Faye
Bivens, the victim in this case, testified as follows:
               It was . . . late one night and my nephew and them was outside playing and
       I had told them I was laying down on my couch. And I had told them I was going to
       leave the door unlocked so they can get in and out. So someone had knocked on my
       door and I was laying down and I said, “Who is it?” But I couldn’t really hear who
       it was, so I thought it was one of them, so I just told them to come on in. And when
       [the Defendant] came in, he asked for my cousin. I told him my cousin wasn’t there.
                And he locked my door. As he came in, he locked my door back. And I was
       on the phone with my sister at the time and he reached in his back and pulled out this
       big old gun and he said, “Bitch, give me the money and the dope.”
                And I’m like, “What is you talking about?”
                And he was like, “Get off the phone.”
                Because at that time I’m telling my sister, I’m like, “There’s a man in here
       with a gun.”
                ....
                And he was like, “Hang the phone up.”
                And I started telling her and at that time he done snatched the phone out of
       my hand and throwed [sic] it down on the table and hung it up. So I’m sitting there,
       I’m hysterical because he all in my face and everything. And at the time, my son was
       in the house, but he was back there on his computer and he didn’t hear me screaming
       and hollering.
                So the people next door, they heard me, and they came out and was standing
       by my window listening to everything he was saying to me and he was asking me was
       I willing to die for some money.
                And I’m like, “What money? I don’t have no money.”
                And he said that he was going to kill me and all that. And like I asked him
       to leave my house and he wouldn’t and then all of a sudden I start getting real scared
       and start . . . hyperventilating and everything and he kind of got scared and he left.
       He left my house.

       Bivens further testified that the Defendant had a “big old” handgun that he pointed at her
while he was in her home. She stated that she did not owe the Defendant any money and that she
had never seen the Defendant prior to this offense. Bivens testified that she did not “have anything
to do with dope or dealing dope.” She reported that the Defendant’s actions caused her to have a
“nervous condition” which made her “scared of anything.”

        On cross-examination, Bivens testified that when the Defendant entered her home, he asked
for her cousin, Edward Chubb. She stated that the Defendant asked for Chubb by his nickname,
“Gully.” Bivens did not recall the Defendant stating an amount of money that he was seeking. She
explained that although the Defendant did not physically injure her, he “had the gun in [her] face.”
Bivens stated that as the Defendant left her home, he stated, “Don’t cry, I didn’t mean to do this.”
Bivens stated that her cousin sometimes visited her and that on the day of the offense, he had left his
car at her house while he went fishing.

       The Defendant testified that he was twenty-eight years old. He stated that he was born in
Chattanooga, Tennessee, that he moved to Atlanta, Georgia when he was twelve years old, and that
he recently moved back to Tennessee. The Defendant testified that when he was younger, he
attended special education classes because he had a learning disability. He stated that although he


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“can” work, he has had difficulty keeping jobs because he “[c]ouldn’t understand certain stuff,” and
it was hard for him to follow directions. The Defendant reported that just prior to his arrest, he had
obtained his first apartment. He explained that he receives disability payments and that he was able
to get the apartment “[t]hrough Social Security.” He reported that his family had been paying for
his apartment since he has been incarcerated. The Defendant testified that his mother and his
siblings, a brother and a sister, help take care of him.

         The Defendant testified that he went to Bivens’ home “[b]ecause Gully had beat [him] out
of some money.” He stated that Gully had “sold [him] some bad drugs.” The Defendant admitted
that it was wrong for him to go to Bivens’ home. He stated that he took a gun to Bivens’s home
because Gully had drawn a gun on him in the past. The Defendant maintained that he was afraid of
Gully because he was “a big shot in the neighborhood.” He claimed that when he realized that
Bivens was upset, he apologized, told her not to cry, and left her home.

         The Defendant testified that when the police arrested him, he cooperated and explained what
had transpired in Bivens’s home. He stated that he told police that he “felt bad about what
happened.” The Defendant maintained that he did not intend to frighten Bivens. The Defendant
testified that he gave the police the gun that he used to threaten Ms. Bivens.

       The Defendant acknowledged that he had prior convictions for driving under the influence
and driving on a revoked license in Hamilton County. He also acknowledged that he had prior
offenses for assault and possession of cocaine in Atlanta, Georgia. The Defendant stated that there
was a pending charge against him in Atlanta for simple battery. The Defendant maintained that if
he was placed on probation, he would comply with any conditions ordered by the court and that he
would be able to perform public service work.

         On cross-examination, the Defendant acknowledged that he was originally placed on bond
in this case, but testified that he was arrested for failing to appear in court. He stated that in 1992,
he received three years’ probation for a cocaine charge in Atlanta. He also stated that in 1995, while
still on probation, he was convicted for possession of a firearm. The Defendant testified that he did
not know Bivens prior to this offense and that Bivens did not owe him any money or “wrong him
in any way.” He maintained that he did not point the gun at Bivens. The Defendant acknowledged
that at the time of the sentencing hearing, a charge was pending against him in Georgia for simple
battery.

        Upon questioning by the trial court, the Defendant testified that he knew at the time of the
offense he was violating the law by entering Bivens’s home with a gun. He stated that he was “just
trying to get [his] money back.” He admitted that he should not have been “dealing in drugs” but
“that he did it anyway.”

                                           II. ANALYSIS




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        The Defendant argues that the trial court erred by ordering that he serve his entire sentence
incarcerated. When a criminal defendant challenges the length, range, or manner of service of a
sentence, the reviewing court must conduct a de novo review of the sentence with a presumption that
the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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). In the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).

       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. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence “even if we would have
preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

       The trial court in this case applied the following two enhancement factors: (1) “[t]he
defendant has a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range,” Tenn. Code Ann. § 40-35-114(1); and (2) “[t]he
defendant has a previous history of unwillingness to comply with the conditions of a sentence
involving release in the community.” Id. § 40-35-114(8). The trial court stated that it applied the
following mitigating factors that were submitted in the sentencing memorandum: (1) the Defendant


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spent almost three years in custody for this charge, (2) the Defendant has family support, (3) the
Defendant is a slow learner and has difficulty understanding instructions, (4) the Defendant has a
young daughter, and (5) the Defendant has potential for rehabilitation. See id. § 40-35-113(13).
However, the trial court found that “the enhancement factors, due to their nature, outweigh” the
mitigating factors. The weight given to each enhancement or mitigating factor is within the
discretion of the trial court, provided that the trial court has complied with the purposes and
principles of the Sentencing Act and provided that its findings are supported by the record. State v.
Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997).

        The Defendant contends that the trial court erred by failing to apply the following mitigating
factors: (1) that the Defendant had made efforts to rehabilitate himself; (2) that the Defendant
immediately accepted responsibility for his actions and cooperated with police; (3) that the
Defendant was remorseful for having placed the victim in fear; (4) that the Defendant had a learning
disability; and (5) the Defendant’s family background. However, we conclude that the trial court did
not err by failing to apply these factors. There is no evidence in the record that the Defendant tried
to rehabilitate himself. On the contrary, he was repeatedly given opportunities to improve himself,
but he failed to do so. Although the Defendant did admit his responsibility for his actions, we note
that he did not do so until he was arrested. The trial court specifically found that the Defendant was
more remorseful about the fact that Ms. Bivens was in the home than the fact that he committed a
crime. Regarding the Defendant’s learning disability, the trial court stated that the Defendant was
able to understand his actions and that he purposefully went into Bivens’s home with a gun. Finally,
we conclude that although the Defendant’s father was no longer living with the rest of his family,
the Defendant did not allege how this affected his decisions or behavior.

       The Defendant next argues that the trial court erred by failing to grant him alternative
sentencing. Tennessee Code Annotated § 40-35-102(5) provides as follows:
               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 . . . .
A defendant who does not fall within this class of offenders “and who is an especially mitigated
offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court
must presume that a defendant sentenced to eight years or less and not an offender for whom
incarceration is a priority is subject to alternative sentencing and that a sentence other than
incarceration would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80
(Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a).

       However, all offenders who meet the criteria are not entitled to relief; instead, sentencing
issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing Moss, 727 S.W.2d at 235). Even if a defendant


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is presumed to be a favorable candidate for alternative sentencing under Tennessee Code Annotated
§ 40-35-102(6), the statutory presumption of an alternative sentence may be overcome if
                 (A) [c]onfinement is necessary to protect society by restraining a defendant
         who has a long history of criminal conduct;
                 (B) [c]onfinement 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
                 (C) [m]easures less restrictive than confinement have frequently or recently
         been applied unsuccessfully to the defendant . . . .
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent
part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-
103(5); see also State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). A court may also
consider the mitigating and enhancing factors set forth in Tennessee Code Annotated §§ 40-35-113
and 114 as they are relevant to the § 40-35-103 considerations. Tenn. Code Ann. § 40-35-210(b)(5);
State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

         We conclude that the Defendant is ineligible for community corrections. An offender who
is guilty of a “crime[] against the person” is not eligible for a community corrections sentence. See
Tenn. Code Ann. § 40-36-106(a)(2). In addition, the Defendant is ineligible for a community
corrections sentence because he was convicted of a violent offense, see id. §40-36-106(a)(3), and
because he was convicted of an offense in which the use or possession of a weapon was involved.
See id. §40-36-106(a)(4).

        The Defendant also argues that he should have been granted probation. With certain
exceptions, a defendant is eligible for probation if the sentence actually imposed is eight years or
less. Tenn. Code Ann. § 40-35-303(a). “Although probation ‘must be automatically considered as
a sentencing option for eligible defendants, the defendant is not automatically entitled to probation
as a matter of law.’” State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn. Code Ann. §
40-35-303(b) sentencing comm’n cmts). In determining whether to grant or deny probation, the trial
court may consider the circumstances of the offense; the defendant’s criminal record, background
and social history; the defendant’s physical and mental health; the deterrent effect on other criminal
activity; and the likelihood that probation is in the best interests of both the public and the defendant.
State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The Defendant has the burden of
establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b); Ashby, 823 S.W.2d at 169.

        The trial court found that the Defendant “is a threat to society because he . . . was convicted
of assault, he was placed on probation, he committed a crime while he was out on assault, involving
a handgun, which is a very serious matter, and after that was over and he had been convicted in this
particular case, he does the same thing again: He goes into the house, Ms. Bivens is there, with a
handgun.” The court stated that the Defendant “went in [Bivens’ home] with a handgun and he
didn’t go in with a handgun by accident, it was deliberate and purposeful, even after he had been


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convicted of carrying a handgun.” The trial court noted that regardless of the Defendant’s learning
disability, such dangerous behavior cannot be tolerated.

        The trial court stated that although the Defendant may have been remorseful that Bivens was
in the home, he did not show any remorse for carrying a handgun into the home in an effort to get
his money back. According to the court, the Defendant’s “only remorse” was that “it happened to
be Ms. Bivens there instead of Mr. Gully.” Thus, the court stated that the Defendant was “really not
remorseful for committing a crime, but only for the fact that [Bivens] happened to be there.” The
trial court found that confinement was necessary to protect society, that confinement was necessary
to avoid depreciating the seriousness of the offense, and that measures less restrictive than
confinement had been unsuccessfully applied in the past. See id. § 40-35-103(1)(A)-(C). We
conclude from our review of the record that each of these findings is amply supported by the
evidence. We therefore conclude that the trial court did not err by failing to grant the Defendant
probation.

       Accordingly, the judgment of the trial court is AFFIRMED.


                                                      ___________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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