         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                           SEPTEMBE R SESSION, 1997 December 18, 1997

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,              )    C.C.A. NO. 01C01-9611-CR-00469
                                 )
      Appellee,                  )
                                 )    DAVIDSON COUNTY
                                 )
V.                               )
                                 )    HON. THOMAS H. SHRIVER, JUDGE
BENJAMIN F. WARNER,              )
                                 )
      Appe llant.                )    (VOLUNTARY MANSLAUGHTER)




FOR THE APPELLANT:                    FOR THE APPELLEE:

KARL DEAN                             JOHN KNOX WALKUP
District Public Defender              Attorney General & Reporter

JEFFREY A. DeVASHER                   KAREN M. YACUZZO
Assistant Public Defender             Assistant Attorney General
1202 Stahlman Building                2nd Floor, Cordell Hull Building
Nashville, TN 37201                   425 Fifth Avenue North
                                      Nashville, TN 37243

                                      VICTO R S. JO HNS ON, III
                                      District Attorney General

                                      NICHOLAS BAILEY
                                      Assistant District Attorney General
                                      Washington Square, Suite 500
                                      222 Se cond A venue S outh
                                      Nashville, TN 37201




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                OPINION

      The Defendant, Benjamin F. Wa rner, a ppea ls as of right from his sentence

of eight (8) years in the Tennessee Department of Correctio n. Defendant pled

guilty to the charge of voluntary manslaughter with an ag reed ma ndatory

sentence of eight (8) years to be imposed, with the manner of service of the

sentence to be dete rmined by the trial court. After a hearing, the trial cou rt

sentenced Defen dant to eig ht (8) years of incarce ration as a Rang e II Multiple

Offender to be serv ed at a ra te of thirty-five percent (35%), but denied probation

and alternative sentencing.     Defendant argues that the trial c ourt er red in

impos ing a sen tence o f continuo us con fineme nt.



      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 pres ump tion that the dete rminatio ns ma de by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all rele vant facts a nd circum stance s.” State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).



      In conducting a de novo review of a sentence, this court m ust 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 characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement



                                        -2-
that the defendant made on his own behalf; and (g) the potential or lack of

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

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



       If our review reflects that 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, then we may not

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

Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       At the sentencin g hearing, the victim ’s sister, Geo rgia Hightower, testified

as to how th e loss of h er sister had affected her life. She stated that her sister

was thirty-one (3 1) years o f age and was in good health when she was killed.

Cathy Edmondson testified for the Defendant. Edmondson stated that she had

known the Defendant for thirty-five (35) or forty (40) years, and that over the

years he ha d help ed he r to do th ings sh e cou ld not d o by he rself. H is health is

progr essive ly getting worse, and she knew he had problems walking.               She

described an inc ident b etwee n the vic tim and the Defe ndan t in whic h the vic tim

beca me h ostile with the Defe ndan t and E dmo ndso n talke d with h er to ca lm her

down. She de scribed th e Defe ndant a s a goo d perso n with no previous episodes

of violence .



       The Defendan t testified on his own b ehalf.        H e des cribed his he alth

problems as including throat cancer, high blood pressure and recurrent leg

problems from an old injury. He is receiving medical attention for both his throat

                                          -3-
cancer and th e high blood press ure, bu t did not go into de tail as to any treatment

he was receiving other than taking pills. The Defendant stated that he was

seventy-two (72) years old and the victim was forty (40) years old at the time of

the shooting.



       When asked to describe the events preceding the shooting, Defendant

stated he was sitting in the corner of his bedroom in a chair and the victim asked

him for some money. Defendant handed her a twenty (20) dollar bill and she

started to fuss with him. As the victim went into the kitchen, the Defendant stated

that he believed she was getting a butcher knife out of her purse. His pistol was

lying nearby, so he grabbed the gun and shot her when she walked back into the

room. Wh ile he doe s adm it to shooting her, the D efenda nt testified that his

intention when he picked up the gun was “just keep her off of me was what I was

trying to do, to ke ep her fro m getting to me. It wa sn’t my inte ntion of killing h er.”

He the n dialed 9 11 and advised the dispa tcher of the incident.



       Defendant describe d his relation ship with th e victim as one with problems,

and that he had called 911 four (4) different times when the victim was beating

him. He ad mitted that he did no t ever h ave the victim a rreste d bec ause he did

not want to see h er put in to jail. He state d that he felt really bad about what

happened to the victim.



       On cross-examination, Defendant admitted that his testimony regarding

the events which preceded the victim’s death at the sentencing hearing was

different than what h e had initially told the police.          The statement which

Defendant gave to the police read as follows:

                                           -4-
       According to the suspect he was at home when the victim came
       over. He sta ted tha t the victim accused him of seeing other women.
       He stated that sh e cam e towa rds him while h e was sitting in a cha ir
       next to the bed and stated she would kill him if he was seeing
       another woman. It was at this time that he picked up from the
       dresser a thirty-eight caliber revolver and shot her one time in the
       chest.

The Defen dant ad mitted tha t the statem ent he g ave to the police was not rea lly

true. He also admitted that he previously stabbed another person to death, but

did not inte nd to kill that p erson e ither.



         The trial court den ied the Defen dant any type o f alternative sentencing

and senten ced him to eight (8) years incarceration in the Tennessee Department

of Correction. The trial court noted that although the Defendant stated that he

acted under strong provocation, there was no proof off ered tha t tended “to

excus e and justify his cond uct. If he acted in self defense, it’s a defense. If he

didn’t, then, he pled guilty, which means he said he didn’t act in self-defense.”

On the issue of the Defendant’s age, he noted that this was the second time that

he had killed som eone.



       Another pertinent factor which the trial court addressed was the

inconsistency in the Defendant’s statements to the court and the police regarding

the events which led to the victim’s death. The trial court noted that as the

Defendant agreed to plead guilty as a Range II Offender to a sentence of eight

(8) years, the various mitigating factors offered by the Defendant were not

applicable. As far as the Defendant’s health is concerned, the trial court believed

that the State ha d a “pretty g ood se cond d egree m urder ca se . . . and instead of

getting fifteen (15) years . . . he got an eight (8) year sentence.    It’s not a bad




                                            -5-
deal for him. That took into c onside ration his h ealth and his physic al condition .”



         A defendant who “is an especially mitigated or standard offender convicted

of a Cla ss C, D , or E felo ny is pre sum ed to b e a favo rable c andid ate for

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

Code Ann. § 40-35-102(6). As noted above, the Defendant agreed to plead g uilty

as a Range II Multiple Offender, so he is not w ithin the parameters of Tennessee

Code Annotated section 40-35 -102(6) and is not presum ed to be a favo rable

candidate for alternative sentencing. 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 o f past e fforts at r ehab ilitation sha ll be given first p riority

regarding sentencing involving incarceration.” Te nn. Code Ann. § 40-3 5-102(5).



         When imposing a sentence of total con fineme nt, our Criminal Sentencing

Reform Act mandates the trial cour t to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations

which militate against alternative sentencing include: the need to protect so ciety

by restraining a defendant having a long history of criminal conduct, whether

confinement is particularly a ppropria te to effectively deter others likely to c omm it

a similar offense, the need to avoid depreciating the seriousness of the offense,

and the need to order confinement in cases in which less restrictive measures

have often or recently been unsuccessfully applied to the defendant. Tenn. Code

Ann. § 40-35 -103(1); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994).




                                          -6-
        The record revea ls that th e trial co urt failed to con sider a ll of the

sentencing principles and all relevant facts and circumstances. Therefore, the

standard of review for this c ourt is de novo without a presumption of correctness.

See State v. Conn ors, 924 S.W.2d 362 (Tenn. Crim. App. 1996). Our de novo

review of the entire record on appeal convinces us that the trial court was correct

in denyin g the Defendant alternative sentencing in lieu of incarceration. The

burden is on the D efenda nt to show that the sentence he received is impro per,

and the Defendant has failed to prove that he is entitled to p robation . See Ashby,

823 S.W .2d at 169 .



        W hile the Defendant would have us to believe that his age and health

constitute circumstances such that he is entitled to probation, there was no

testimony other than the Defendant’s that his age and health required constant

medical attention. In the presentence report, the probation officer reported that

Defendant suffere d from throat c ance r, high b lood p ressu re, arth ritis and a slight

limp.    While the probation officer noted that documentation was received

regarding the Defendant’s medical condition from the attending physicians at

Nash ville General Hospital, this information was not provided for our review. The

only evidence of medical attention the Defendant receives for his various medical

conditions is his own statement that he takes pills daily for his high blood

pressu re.



        Another factor which supports the trial court’s decision includes the

Defe ndan t’s lack of candor. Defendant admitted during the sentencing hearing

that he had not been truthful describing the events preceding the victim’s death.

A defen dant’s truthfulness is a factor that may be considered and probation may

                                           -7-
be denie d on th is ground . State v. Dykes, 803 S.W.2d 250, 259-60 (Tenn. Crim.

App. 1990) (citations omitted). Lack of truthfulness is probative on the issue of

amen ability to reha bilitation. United States v. Grayson, 438 U.S. 41 (1978).



      Other factors favoring Defe ndan t’s incar ceratio n inclu de the Defe ndan t’s

past criminal record and the deterrent effect upon both Defendant and s ociety in

gene ral. While Defendant’s criminal record is remote in time and many of the

offenses comm itted were not violent o nes, their nume rosity is significa nt. In

addition, the Defendant has a prior homicide conviction in his criminal record.

Although the prior homicide conviction was in 1948, the punishment of two (2) to

three (3) years confinement at that time did not deter Defendant from committing

the offense in this case, and, therefore, we conclude that incarc eration is

necessa ry to protect socie ty by restrain ing the D efenda nt. Tenn . Code Ann. §

40-35-103 (1)(A).



      Defendant argue s that th is court has previously held that the “fact that the

death of another results from the defendant’s conduct does not, alone, make the

offense sufficiently violent to justify a denia l of probation.” See State v. Butler,

880 S.W.2d 395, 400-01 (Tenn. Crim. App. 1994). He cites several unpublished

case s in supp ort of his argum ent. See Montg omery v. State, No. 03C01-9401-

CR-00380, Sevier C ounty (T enn. C rim. App ., at Knoxville, Augu st 18, 1995);

State v. Black, No. 01C01-9401-CC-00006, Robertson Coun ty (Tenn. Crim. A pp.,

at Nashv ille, July 14, 19 95); State v. Harris , No. 03C01-9505-CR-0 0131,

Ham ilton County (Tenn . Crim. A pp., at Kn oxville, April 4, 1 996); State v. Pann,

No. 02C01-9510-CR-00295, Shelby County (Tenn. Crim. App., at Jackson, June

10, 1996). As the State correctly points out, in each of these cases, there was

                                         -8-
a presu mptio n that th e defe ndan t was a favora ble ca ndidate for alternative

sentencing unde r Ten ness ee Co de An notate d sec tion 40 -35-1 02(6) , and th is

court held th at the tria l court could not de ny alter native s enten cing o n the s ole

basis that defendant’s criminal conduct caused death. The Defendant’s case can

be distinguished as he was not a presum ably favorable can didate for alternative

sentencing, and his conduct causing the death of the vic tim wa s not th e sole

factor in denying probation.



       As the evide nce in the record s upports both the factual and s tatutor y basis

for the trial c ourt’s s enten cing d ecisio n, this c ourt will n ot interpose a different

senten ce. W e affirm the judgm ent of the tria l court.


                                    ____________________________________
                                    THOMAS T. W OODALL, Judge

CONCUR:

___________________________________
GARY R. WA DE, Judge

___________________________________
J. CURWO OD W ITT, JR., Judge




                                            -9-
