         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE         FILED
                       OCTOBER 1996 SESSION      February 24, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )    NO. 03C01-9604-CC-00148
      Appellee,                  )
                                 )    HAMBLEN COUNTY
VS.                              )
                                 )    HON. JAMES E. BECKNER,
DARRELL KENNETH McCONNELL,       )    JUDGE
                                 )
      Appellant.                 )    (Denial of Alternative Sentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:

PAUL G. WHETSTONE                     JOHN KNOX WALKUP
502 N. Jackson Street                 Attorney General and Reporter
Morristown, TN 37814-3915
                                      TIMOTHY F. BEHAN
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      C. BERKELEY BELL, JR.
                                      District Attorney General

                                      JOHN F. DUGGER, JR.
                                      Assistant District Attorney General
                                      Hamblen County Justice Ctr.
                                      510 Allison Street
                                      Morristown, TN 37814




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                    OPINION


       The defendant, Darrell Kenneth McConnell, pled guilty in the Hamblen

County Circuit Court to one (1) count of Class D criminal simulation and six (6)

counts of Class E criminal simulation. The trial court denied alternative sentencing

and imposed concurrent sentences of two (2) years and one (1) day for the Class

D felony and one (1) year for each of the Class E felonies. On appeal, defendant

challenges the trial court’s denial of alternative sentencing. We affirm the judgment

of the trial court.



                                       FACTS



       The facts giving rise to the guilty pleas were stated by the assistant district

attorney general as follows:

               Your Honor, the proof would show in case number 94-CR-305
       that on September the 29th, 1994, at approximately 8:10 p.m. that
       Officer Mark Campbell of the Morristown Police Department was
       dispatched to the College Square Mall to the store Afterthoughts. The
       proof would be that he talked to the store manager, Ms. Jamie Wyatt,
       and she stated she had received a counterfeit one hundred dollar bill,
       and she noticed the man was still in the mall and pointed him out to
       the officer.

              The proof would be that Officer Campbell approached Mr.
       McConnell and asked him if he had made a purchase there, and he
       confirmed that he had, and asked him if he had change and also
       other money on him.           He produced a wallet with various
       denominations of bills. Proof would be that he had other money, U.S.
       Currency, in his front pocket. Upon checking the wallet, he had six
       hundred and thirty dollars of counterfeit bills in that wallet, and he had
       good currency in his front pocket.

               The proof would further show that a search of his car showed
       he had six thousand four hundred and thirty dollars in counterfeit bills
       in his vehicle.

              And that checking with other stores, he had passed a hundred
       dollar bill to Sears for a purchase price of thirty-four dollars and
       ninety-nine cents, and that bill was counterfeit; a twenty dollar bill to
       Radio Shack, and the purchase price that he bought there was two
       dollars and ninety-nine cents. He received change.

              He passed another one hundred dollar bill to G.N.C. for
       purchasing items of twelve dollars and seventy-four cents, and
       received change.




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               He passed another one hundred dollar counterfeit bill to the
        Footlocker for purchase of items of thirty-nine dollars and ninety
        cents, and he received change for that.

               He passed another one hundred dollar counterfeit bill to
        Afterthoughts, purchasing nineteen dollars and fifty-three cents.

                All those bills were counterfeit bills.

                  And the proof would further show that he had scrubbers in his
        wallet that are used on counterfeit money to rub up the paper to make
        it feel like real money instead of just being slick. He had scrubbers in
        his wallet.

              And he also had a pen that is used to check counterfeit bills,
        to mark it, and it makes a certain color whether it’s counterfeit or not;
        he had that on his person.

              Your Honor, that would be the proof in these cases, and they
        occurred in Hamblen County, Tennessee.

To these facts the defendant entered an Alford plea and agreed the plea was in his

best interest.1     The defendant refused to acknowledge guilt and stated the

scrubbers were only used to clean contacts.                 Although the parties agreed to

concurrent sentences of two (2) years and one (1) day for the Class D felony and

one (1) year for each of the Class E felonies, the issue of alternative sentencing was

submitted to the trial court for determination.



                                  SENTENCING HEARING



        At the sentencing hearing the defense presented a character witness, a

landlord who leased commercial property to the defendant and the defendant’s wife

of twenty-eight (28) years. All testified as to the defendant’s positive attributes. The

testimony also revealed that the defendant suffered from a heart condition. It was

further established that the defendant, while on bond for the subject charges, was

arrested in the State of Virginia for passing a counterfeit bill for which defendant

was expected to receive a suspended sentence.                          The defendant’s wife

acknowledged the presence of a color copy machine in their residence, although

she stated it was to be used for screen printing t-shirts. The defendant did not


        1
           In North Carolina v. Alford, 400 U.S. 25, 91S.Ct. 160, 27 L.Ed.2d 747 (1970); the United States
Supreme court held that a criminal defendant may enter a guilty plea without admitting guilt if the defendnt
intellig ently c onc ludes his be st inte rests wou ld be s erve d by a p lea of guilty.

                                                 3
testify except in the submission of his guilty plea. The defendant’s version of the

counterfeiting scheme remained a mystery.

       The trial court specifically found that the defendant had been untruthful and

had failed to acknowledge his personal responsibility for the extensive counterfeiting

scheme. The court further noted the passing of another counterfeit bill while the

defendant was on bond for the present offenses. Although the trial court noted the

poor health of the defendant, the trial court observed that he could be placed in a

special facility in the Department of Correction. The trial court denied alternative

sentencing.



                             STANDARD OF REVIEW



       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. 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. Tenn. Code Ann. § 40-35-102(6).

       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also


                                          4
State v. Ashby, 823 S.W.2d at 169.



       A court may also consider the mitigating and enhancing factors set forth in

Tenn. Code Ann. §§ 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). Additionally, a court should consider the

defendant’s potential or lack of potential for rehabilitation when determining if an

alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State

v. Boston, 938 S.W.2d at 438.



                                  CONCLUSION



       The trial court’s finding that the defendant had been untruthful and failed to

acknowledge personal responsibility for his criminal conduct is significant as it

relates to the potential for rehabilitation. See State v. Zeolia, 928 S.W.2d 457, 463

(Tenn. Crim. App. 1996); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.

1994). The passing of another counterfeit bill while the defendant was on bond is

also indicative of the lack of potential for rehabilitation. It is also apparent that

confinement is necessary to depreciate the seriousness of these counterfeiting

offenses. We find no error in the denial of alternative sentencing.



       The judgment of the trial court is AFFIRMED.



                                          _________________________________
                                          JERRY L. SMITH, JUDGE




CONCUR:



________________________________
GARY R. WADE, JUDGE


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________________________________
DAVID H. WELLES, JUDGE




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