                                                    FILED
         IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

                            AT NASHVILLE
                                                       June 26, 1997

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
                         February 1997 SESSION



STATE OF TENNESSEE,                )
                                   )
            Appellee,              )   C.C.A. No. 01C01-9605-CC-00220
                                   )
vs.                                )   Dickson County
                                   )
STEVEN A. BUSH,                    )   Honorable Robert E. Burch
                                   )
            Appellant.             )   (Voluntary manslaughter)
                                   )
                                   )

FOR THE APPELLANT:                     FOR THE APPELLEE:

MICHAEL J. FLANAGAN                    JOHN KNOX WALKUP
DALE M. QUILLEN                        Attorney General & Reporter
Attorneys At Law
95 White Bridge Road #208              SANDY R. COPOUS
Nashville, TN 37205                    Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       DAN MITCHEM ALSOBROOKS
                                       District Attorney General

                                       ROBERT WILSON
                                       Asst. District Attorney General
                                       P.O. Box 580
                                       Charlotte, TN 36036




OPINION FILED: _____________

AFFIRMED AS MODIFIED


CURWOOD WITT, JUDGE
                                     OPINION

              The defendant, Steve A. Bush, brings a direct appeal from the Circuit

Court of Dickson County where he was indicted for murder in the second degree

and was convicted of voluntary manslaughter, a Class C felony. He received a

sentence of six years to serve in the Tennessee Department of Correction and was

ordered to pay restitution in the amount of $8,500.00.1 On appeal the defendant

challenges only the trial court’s denial of probation. After a thorough review of the

record, we affirm the trial court’s judgment; however, we hold that the order for

payment of restitution should be vacated.



              The defendant was convicted of the voluntary manslaughter of his

son-in-law, Danny Leaster, who was nineteen years of age and lived with his wife,

Rachel (the defendant’s daughter), and their infant son in a mobile home located

on property owned by the defendant. The Leasters hosted a small gathering at their

mobile home on the evening of November 4, 1994. After the Leasters and guests

consumed food and alcohol, Danny and Rachel Leaster argued. The argument

culminated in Rachel Leaster leaving the mobile home in Danny Leaster’s truck.

Upon learning later that his wife had wrecked the truck, Danny Leaster and two

companions, Billy Adams and Lisa Leaster, went to Stephanie Springer’s house

where Rachel Leaster, who was not hurt seriously in the accident, had gone after

the accident. Rachel Leaster, Danny, Lisa and Billy Adams went together to get

Danny Leaster’s truck. When the group arrived at the wreck location, Danny Leaster

determined that a wrecker would be required to recover the truck. At his request,

Rachel and Lisa Leaster took Adams’ vehicle to obtain a wrecker.




1

        The defendant was ordered to pay restitution to the victim’s mother. The
trial court found that she, and not the victim’s estate, had paid the funeral and
burial expenses.

                                         2
              A few minutes after they departed, the defendant arrived in his car.

He was accompanied by his wife, Stephanie Springer, and Springer’s infant

daughter. Danny Leaster approached the defendant’s car casually, in a non-

threatening manner. The defendant, who remained seated in his car, accused

Leaster of assaulting and contributing to the delinquency of Rachel. Danny Leaster

replied, “No, I ain’t been hitting her. I’m just trying to get my G-d truck out of the

ditch that your daughter put in there.” Adams, who had remained on the scene,

testified, “The next thing I knowed, bam.” Adams testified that when the fatal shot

was fired the victim was standing “a little over arm’s distance” from the defendant’s

car and was pointing to his truck. He testified that the victim was unarmed.



              Stephanie Springer testified that, after Rachel Leaster wrecked the

victim’s truck and came to Springer’s house, Springer spoke with the defendant on

the telephone and informed him that the Leasters had fought, that Rachel had

thrown the first punch, and that Danny Leaster “hit her once.” Springer testified that

the defendant and his wife then came to pick up Springer so that she could show

them where the accident had occurred. She further testified that prior to the

shooting there was no “bad argument, not really yelling, but more of a high tone.”

She testified that the victim never made any movements or threatening gestures

toward the defendant and that, after the shooting, the defendant appeared calm.

Rachel Leaster was not present at the scene when Danny Leaster was shot.



              The jury convicted the defendant of voluntary manslaughter.

Testimony at the sentencing hearing (including the defendant’s) and the

presentence report show that the defendant was sixty-one years of age at the time

of the sentencing. He had been regularly and continuously employed for a long

time at a stove plant in Ashland City. He testified that his wife is diabetic and has

other illnesses and that he needed to remain employed in order to have medical

insurance coverage available for her. In denying probation, the trial judge referred




                                          3
to the provisions of Tennessee Code Annotated section 40-35-210(b). Specifically,

he cited his reliance upon the evidence adduced at trial and at the sentencing

hearing,   the principles of sentencing, the arguments of counsel, the facts

supporting enhancement and mitigating factors, and the nature and circumstances

of the crime. The court declined to find any applicable mitigating factors and found

only one enhancement factor, that the defendant used a firearm during the

commission of the offense. Tenn. Code Ann. § 40-35-114(9) (Supp. 1996). The

trial judge acknowledged the principle of presumptive minimum sentencing in Class

C cases and that the defendant was essentially a good man who had “worked hard

all his life . . . the type of man . . . the country can be proud of.” The court also

acknowledged that the defendant was remorseful.           However, the trial judge

determined that the presence of enhancement factor (a) outweighed all other

considerations and justified the maximum sentence within the range. The trial judge

then alluded to the facts of the case that were accredited by the jury, including the

defendant’s arming himself prior to the shooting and the lack of provocation. In the

trial court’s expressed opinion, the proof supported a conviction for second-degree

murder.



              The trial court sentenced the defendant to serve six years, the

maximum within Range I, Class C. The trial court then acknowledged that it was

required by law to consider alternative sentencing. The trial judge stated,

       Essentially what we have is a homicide. And the law of this state is
       that a suspended sentence is inappropriate in a situation in which a
       homicide occurs. And I think that is the case here, that it would not
       be appropriate to suspend the sentence in a homicide case,
       particularly, in one of this nature in which a firearm was used and
       there was no provocation and so forth.

With this explanation, the court denied the defendant’s request for probation.



              On appeal, the defendant concedes the appropriateness of the length

of sentence but challenges the denial of probation.



              When there is a challenge to the length, range, or manner of service


                                         4
of a sentence, it is the duty of this court to conduct a de novo review of the record

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d) (1990). 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). “The burden of showing that the sentence is improper is

upon the appellant.” Id. In the event the record fails to demonstrate the required

consideration by the trial court, review of the sentence is purely de novo. Id. If

appellate review reflects the trial court properly considered all relevant factors and

its findings of fact are adequately supported by the record, this court must affirm the

sentence, “even if we would have preferred a different result.” State v. Fletcher, 805

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



              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 alternative; (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) (Supp. 1996); Tenn. Code Ann. §

40-35-103(5)(1990); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).



              In Ashby, our supreme court said:

       “[A] case-by-case approach to sentencing underlies this Act as a
       fundamental policy. An individual criminal is sentenced based on the
       nature of the offense and the totality of the circumstances in which it
       was committed, including the defendant’s background... Any case-by-
       case approach will embody discretion, since all of the appropriate
       factors and circumstances must be weighed and considered as a
       whole for the disposition of each case.”



                                          5
State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991) (quoting State v. Moss, 727

S.W.2d 229, 235 (Tenn. 1986)).



                             I. Alternative Sentencing.



              The defendant is clearly eligible for alternative sentencing in general,

Tenn. Code Ann. § 40-35-102(5), (6) (Supp. 1996), and he is eligible for probation

as a particular alternative to confinement. Tenn. Code Ann. § 40-35-102(6). The

trial court is required to automatically consider probation as a “part of the sentencing

determination at the conclusion of the sentencing hearing.” Tenn. Code Ann. § 40-

35-303(b) (Supp. 1996). The defendant is presumed to be a favorable candidate

for alternative sentencing, but the presumption of suitability for alternatives to

confinement may be overcome by evidence to the contrary. Tenn. Code Ann. § 40-

35-102(6).



              When the defendant requests alternative sentencing, we look first to

the presumption of favorable candidacy and to the presence or absence of evidence

that would overcome the presumption. Our analysis includes the considerations

enumerated in Tennessee Code Annotated sections 40-35-210(b) and -103(5).

One of these considerations is the “nature and characteristics of the criminal

conduct involved.” Tenn. Code Ann. § 40-35-210(b)(4) (Supp. 1996); Ashby, 823

S.W.2d at 169. In addition we utilize the considerations for ordering confinement

that appear in section 40-35-103(1). One of these is semantically linked to the

nature and circumstances of the offense. It is the consideration found in section 40-

35-103(1)(B): Confinement may be ordered when it is “necessary to avoid

depreciating the seriousness of the offense.” Tenn. Code Ann. § 40-35-103(1)(B)

(1990).



              The nexus between the nature and circumstances of the offense and

sentencing to avoid depreciating the seriousness of the offense is well recognized.



                                           6
State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991). The nature and

circumstances of the offense may serve as the sole basis for denying probation

when the facts are “especially violent, horrifying, shocking, reprehensible, offensive

or otherwise of an excessive or exaggerated degree; and it would have to be clear

that, therefore, the nature of the offense, as committed, outweighed all other factors

... which might be favorable to grant of probation.” State v. Travis, 622 S.W.2d 529,

534 (Tenn. 1981); see also State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985).

“This standard has essentially been codified in the first part of T.C.A. Section 40-

35-103(1)(B) which provides for confinement if it is necessary to avoid depreciating

the seriousness of the offense.” Hartley, 818 S.W.2d at 375. Thus, the Travis

qualifiers apply under the first clause of section 40-35-103(1)(B) to assist the court

in determining when the need to avoid depreciating the seriousness of the offense

overcomes the presumption of suitability for alternative sentencing.



               In the case now before us, the defendant asks for probation, although

he mentions on appeal, for the first time in the case, the possibility of split

confinement.     Since split confinement is a sentence composed partially of

confinement and partially of probation, we discern his request for alternative

sentencing to be a request for probation entirely, or failing that, probation as a part

of split confinement.



               At the sentencing hearing, probation was the only form of alternative

sentencing proposed to the trial court.       When probation is the only form of

alternative sentencing sought, a trial court’s denial of the probation request could

be founded upon (1) a threshold finding that the presumption of suitability for

alternative sentencing has been overcome by evidence to the contrary, or (2) a

finding that the defendant, although found to be suitable for alternative sentencing,




                                          7
has failed to carry his burden of showing that he is entitled to probation. See State

v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995);

see also Tenn. Code Ann. § 40-35-303(b) (Supp. 1996).



              For purposes of our review in this case, we find that the trial court

disposed of the issue of alternative sentencing at the threshold stage.             He

entertained the threshold question of suitability for alternative sentencing in general

and essentially found that confinement was necessary. This finding is, of course,

a finding that the presumption in favor of alternative sentencing is overcome and

that the defendant’s claim to alternative sentencing is defeated. His claim to

probation, as an included form of alternative sentencing, is necessarily defeated

ipso facto.



              Given this history of the proceeding, we review the trial court’s

disposition of the issue at the threshold stage. We find that the trial judge placed

on the record his reliance upon the principles of sentencing and upon the other

factors mandated by Tennessee Code Annotated section 40-35-210(b) and that he

recorded his findings and recited the basis for such findings. Therefore, we review

the trial court’s judgment with the presumption that the determinations are correct.



              The defendant asserts that the trial court acted arbitrarily in denying

probation merely because this is a homicide case. He cites the trial court’s

comment that in homicide cases probation would be inappropriate. Although it has

been held that “exceptional circumstances must be shown in order to support

probation in a case involving the death of another person,” Kilgore v. State, 588

S.W.2d 567, 568 (Tenn. Crim. App. 1979), the legislature has altered the rule by

making probation available for offenses such as the one now before us. “[R]eliance

upon the mere fact that a violent crime was committed in order to deny probation

is ordinarily insufficient to justify total denial of probation.” State v. Howard Martin

Adams, No. 03C01-9403-CR-00123, slip op. at 18 (Tenn. Crim. App., Knoxville,



                                           8
January 11, 1995). Indeed, “when the legislature provides probation eligibility for

an inherently violent offense, the mere fact that the offense was committed is an

insufficient basis to deny probation.” Id; see also State v. Travis, 622 S.W.2d 529,

533-534 (Tenn. 1981); State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App.

1991). Therefore, if the trial judge denied probation merely because this probation-

eligible offense was committed, the denial of probation for such reason alone would

be unjustified.



              We note that the trial judge qualified his comments about the propriety

of probation in homicide cases by adding that probation is not appropriate,

“particularly, in [a case] of this nature.” Furthermore, the court expressly grounded

the denial of alternative sentencing in the evidence, the statutory principles of

sentencing, and on the nature and circumstances of the offense. The defendant

armed himself and then shot the victim. In the court’s view, there was no privilege

nor provocation for committing this homicide. In its order overruling the motion for

new trial, the court stated that confinement was necessary to avoid depreciating the

seriousness of the offense. Tenn. Code Ann. § 40-35-103(1)(B) (1990). The trial

judge reached this result, “given the facts of this case and the length of the

sentence,” because he determined that the jury had extended leniency to the

defendant in acquitting him of second-degree murder. This factor is properly

considered by the court in finding that confinement is necessary under section

103(1)(B). See State v. Fredrick Dona Black, No. 03C01-9404-CR-00139, slip op.

at 3-4 (Tenn. Crim. App., Knoxville, April 6, 1995); see also State v. Nealy Walter

Perry, No. 89-133-III, slip op. at 4-5 (Tenn. Crim. App., Nashville, August 29., 1990)

(Dwyer, J., concurring and dissenting).



              The record in this case demonstrates a basis for concluding that the

nature of the offense as committed is especially reprehensible and/or offensive,

satisfying Travis and Hartley. The punishment for the unjustified killing of this

unarmed, non-threatening victim is limited to a term of six years. The record



                                          9
supports the trial court’s denial of alternative sentencing based on its finding that

confinement is necessary to avoid depreciating the seriousness of this offense.



              As pointed out above, alternative sentencing issues must be

determined by the facts and circumstances of the individual case. State v. Moss,

727 S.W.2d 229, 235 (Tenn. 1986). If the trial court has considered the relevant

facts and the findings are adequately supported in the record, the trial court has the

discretion to resolve these issues, bottoming the case upon its own facts. State v.

Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987); see Ashby, 823 S.W.2d at

168; Fletcher, 805 S.W.2d at 789.



              The presumption of suitability for alternative sentencing has been

overcome by proof to the contrary.        Accordingly, the trial court’s ruling that

confinement is necessary to avoid depreciating the seriousness of the offense is

supported in the record, and the action of the trial court in denying alternative

sentencing is affirmed.



                                  II. Restitution.



              On this appeal the defendant has not raised the issue of the trial

court’s order of restitution. Nevertheless, we review this issue under our authority

to address plain error:

       An error which has affected the substantial rights of an accused may
       be noticed at any time, even though not raised in the motion for new
       trial or assigned as error on appeal, in the discretion of the appellate
       court where necessary to do substantial justice.

Tenn. R. Crim. P. 52(b). The ordering of restitution in this cause is an error

affecting the substantial rights of the defendant in light of the Tennessee law

applicable to this case as amplified in State v. Davis, 940 S.W.2d 559 (Tenn. 1997).

In Davis our supreme court considered whether a trial court had the statutory

authority to order restitution along with a sentence of incarceration. The court

reviewed the language of Tennessee Code Annotated sections 40-35-104(c)(2), -

                                         10
303(d)(10), and -304(a) and found that restitution may be ordered in conjunction

with a sentence of confinement only when the latter is suspended and the

defendant placed on probation. Davis, 940 S.W.2d at 561. The court concluded

that a trial court has no authority to “impose restitution as part of a custodial

sentence.” Davis, 940 S.W.2d at 562.



              The legislature amended section 40-35-104(c)(2) in order to provide

for the payment of restitution in addition to “any other sentence authorized by this

subsection.” Pub. Acts, ch. 699 (1996). This amendment applies to any defendant

sentenced on or after July 1, 1996. The defendant in the case now before us was

sentenced on June 21, 1995. Therefore, the rule announced in Davis controls, and

we must conclude that the trial court did not have the statutory authority to order

restitution as a part of the defendant’s sentence of confinement. See also State v.

Timothy Alan Lockridge, No. 01C01-9603-CR-00090, slip. op. at 6 (Tenn. Crim.

App., Nashville, May 7, 1997) (finding that an order of restitution in conjunction with

confinement is not statutorily-authorized under Davis, when the sentencing occurred

prior to July 1, 1996). The requirement of the payment of restitution must be

vacated.



                                  III. Conclusion.



              The judgment of the trial court is modified in order to vacate the order

of payment of restitution, and in all other respects the judgment of the trial court is

affirmed.




                                                  _____________________

                                                     Curwood Witt, Judge




                                          11
CONCUR:




_________________________

Gary R. Wade, Judge




_________________________

David G. Hayes, Judge




                            12
