         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 30, 2007

      STATE OF TENNESSEE v. NAPOLEON JAMES MOORE, ALIAS

                       Appeal from the Criminal Court for Knox County
                           No. 83961    Jerry Scott, Senior Judge



                   No. E2007-00426-CCA-R3-CD - Filed December 4, 2007


The Defendant, Napoleon James Moore (alias), pled guilty to and was convicted of attempted
possession of over .5 grams of cocaine with the intent to sell, a Class C felony. In accordance with
his plea agreement, he was sentenced as a Range I, standard offender to five years in the Department
of Correction. The manner of service of the sentence was left to the discretion of the trial court. On
appeal, he argues that the trial court erred by denying probation. Following our review, we affirm
the sentence of confinement ordered by the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and D. KELLY
THOMAS, JR., JJ., joined.

Mark Stephens, District Public Defender, Knoxville, Tennessee, for the appellant, Napoleon James
Moore, Alias.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Patricia Cristil, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                         Factual Background
        A Knox County grand jury indicted the twenty-three-year-old Defendant with the following
four offenses: (1) possession of over .5 grams of cocaine with the intent to sell; (2) possession of
over .5 grams of cocaine with the intent to deliver; (3) evading arrest; and (4) criminal trespass. The
crimes were alleged to have been committed on June 15, 2005. He was released on bond, but he
failed to appear on his initial court date. A warrant was issued for his arrest.
         Subsequently, he pled guilty to attempted possession of over .5 grams of cocaine with the
intent to sell, a lesser included offense of the first count of the indictment. In exchange for his guilty
plea, the second possession of cocaine charge was merged into the first, and the remaining two
charges were dropped. In accordance with the plea agreement, the trial court ordered a $2,000 fine,1
declared him to be a Range I, standard offender, and fixed his punishment at five years. The trial
court reserved judgment on alternative sentencing, pending receipt of a presentence report, and the
Defendant was again released on bond.

        The Defendant failed to appear at his sentencing hearing. Subsequently, the Defendant was
arrested and brought before the trial court for a hearing on his application for probation. The
presentence report presented to the trial court noted that he had a prior felony conviction for a drug
related offense, three misdemeanor convictions for assault and criminal trespass, and a juvenile-
offender history consisting of ten delinquency adjudications beginning when the Defendant was
eleven years old. The presentence report also reflected that he had failed to adhere to the terms of
a probationary sentence in the past, and the investigating officers ultimately concluded that the
Defendant was a “high risk candidate for probation.” The trial court also noted that, according to
the presentence report, the Defendant had fathered five children whom he did not support and was
employed for only one month from June of 2000 until January of 2006.

         At the close of the hearing, the trial court denied probation, finding that it was “very clear”
that the Defendant was “not a suitable candidate for probation.” In addition, the following statement
is included in the judgment of conviction regarding the court’s decision to deny probation:

        The Defendant’s application for probation [was] heard and the court having
        considered the evidence in the instant case and the report of the pre-sentence
        investigator, the court finds that all require the imprisonment of the Defendant for his
        own best interest and especially for the protection of the public. The Defendant’s
        application for probation is hereby denied.


      It is from the order of the trial court denying a sentencing alternative to incarceration that the
Defendant appeals.

                                               Analysis
        On appeal, the Defendant contends that his “sentence is excessive and inconsistent with the
sentencing considerations set out in the pertinent statutes.” Specifically, the Defendant argues that
he is presumed by Tennessee Code Annotated section 40-35-102 to be a favorable candidate for
alternative sentencing options and that the trial court did not properly consider sentencing principles
“involving rehabilitation and alternatives to incarceration . . . .” As such, he asserts that no
presumption of correctness should be afforded the trial court’s judgment and that this Court’s review
is therefore de novo. In addition, the Defendant avers that his prior record does not indicate a


        1
            The Defendant expressly waived the constitutional monetary limit on judicially imposed fines.

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lengthy history of previous criminal behavior, and although he failed to complete the probationary
sentence previously imposed, it must be taken into account that he has never been treated for
substance abuse.

         A trial court must consider the following factors before imposing sentence on a defendant:
(a) the evidence adduced 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) evidence and information offered by the parties
on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections
40-35-113 and 40-35-114; (f) any statistical information provided by the Administrative Office of
the Courts as to Tennessee sentencing practices for similar offenses; and (g) any statement the
defendant wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. §
40-35-210(b); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate
review, the trial court is required to place on the record its reasons for imposing the specific
sentence, including the identification of the mitigating and enhancement factors found, the specific
facts supporting each enhancement factor found, and the method by which the mitigating and
enhancement factors have been evaluated and balanced in determining the sentence. See State v.
Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, this Court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). However, this presumption “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). 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 the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act and (2) the trial court’s findings are adequately supported
by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that
a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

       A defendant who does not possess a criminal history showing a clear disregard for society’s
laws and morals, who has not failed past rehabilitation efforts, and who “is an especially mitigated
or standard offender convicted of a Class C, D or E felony, should be considered as a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code
Ann. § 40-35-102(6). The following considerations provide guidance regarding what constitutes
“evidence to the contrary”:




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             (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

               (B) Confinement 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) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant . . . .

Id. § 40-35-103(1).


        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 necessary to achieve
the purposes for which the sentence is imposed. Id. § 40-35-103(2), (4). The court should also
consider the defendant’s potential for rehabilitation or treatment in determining the appropriate
sentence. Id. § 40-35-103(5).

        A defendant is eligible for probation if the actual sentence imposed upon the defendant is ten
years or less and the offense for which the defendant is sentenced is not specifically excluded by
statute. See Tenn. Code Ann. § 40-35-303(a). The trial court shall automatically consider probation
as a sentencing alternative for eligible defendants; however, the defendant bears the burden of
proving his or her suitability for probation. See id. § 40-35-303(b). No criminal defendant is
automatically entitled to probation as a matter of law. See id. § 40-35-303(b), Sentencing
Commission Comments; State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Rather, the defendant
must demonstrate that probation would serve the ends of justice and the best interests of both the
public and the defendant. See State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

        In determining whether to grant probation, the court must consider the nature and
circumstances of the offense; the defendant’s criminal record; his or her background and social
history; his or her present condition, both physical and mental; the deterrent effect on the defendant;
and the defendant’s potential for rehabilitation or treatment. See id. If the court determines that a
period of probation is appropriate, it shall sentence the defendant to a specific sentence but then
suspend that sentence and place the defendant on supervised or unsupervised probation either
immediately or after the service of a period of confinement. See Tenn. Code Ann. §§ 40-35-303(c),
-306(a).

        In denying the Defendant’s application, the trial court made a number of findings as to why
he was not a suitable candidate for probation, including his substantial criminal history, failure to
support his children, and his sporadic or nonexistent work history. Accordingly, based on our review
of the record, we conclude that the trial court considered the relevant sentencing factors and the



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presumption of correctness accompanies the trial court’s determination. See Fletcher, 805 S.W.2d
at 789. Moreover, we agree that a sentence of confinement is proper.

         Notwithstanding the Defendant’s arguments on appeal, the record supports incarceration in
this case in order to protect society because the Defendant has a long history of criminal activity.
See Tenn. Code Ann. § 40-35-103(1)(A). In addition, it is apparent from our review of the
Defendant’s presentence report that measures less restrictive than confinement have frequently and
recently been applied unsuccessfully to the Defendant. See Tenn. Code Ann. § 40-35-103(1)(C).
Moreover, the Defendant’s failure to appear at two court proceedings in this matter, including his
initial sentencing hearing, reflects poorly on his potential for rehabilitation. The Defendant’s
addiction issues may be treated in a correctional facility. We conclude that the trial court did not err
or abuse his discretion by denying a sentencing alternative to incarceration.

                                             Conclusion
        Based on our review of the record in this case, we affirm the sentence of confinement ordered
by the trial court.



                                                        ______________________________
                                                        DAVID H. WELLES, JUDGE




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