         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 4, 2003

                   STATE OF TENNESSEE v. CURTIS E. WELLS

                 Direct Appeal from the Circuit Court for Williamson County
                         No. I-1001-321-A   Donald P. Harris, Judge



                  No. M2002-02290-CCA-R3-CD - Filed September 18, 2003


The appellant, Curtis E. Wells, pled guilty in the Williamson County Circuit Court to robbery, a
Class C felony. The plea agreement provided that the appellant would receive a sentence of six
years, with the manner of service to be determined by the trial court. Following a sentencing
hearing, the trial court ordered the appellant to serve one year at one hundred percent (100%) in the
Williamson County Jail, with the remainder of the sentence to be suspended and served on intensive
probation. On appeal, the appellant asserts that the trial court erred by not granting total probation.
Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH, JJ., joined.

Virginia Lee Story and Dana M. Ausbrooks, Franklin, Tennessee, for the appellant, Curtis E. Wells.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Matthew T. Colvard, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

       The record before this court does not include a transcript of the guilty plea hearing.
Accordingly, the following facts are gleaned from the presentence report and the transcript of the
sentencing hearing.

        At the sentencing hearing, the appellant explained the events leading up to the robbery. Two
months prior to the robbery, the appellant’s cousin, Jonathan Wells, asked the appellant if he would
like “to rob his job.” The appellant, who had worked at a Sonic drive-in restaurant for three years,
declined. Shortly thereafter, the appellant “got into [his] first little piece of trouble.” According to
the appellant, he and co-worker, James Proctor, were involved in vandalizing a stranger’s vehicle.
Although he was not arrested, the appellant was questioned by police about the offense. Adrian
Parker, another co-worker at Sonic, informed the appellant that Proctor had “snitched” on him. The
appellant decided “to get back” at Proctor.

        On the night of the instant offense, after leaving work, the appellant went to his cousin
Jonathan’s residence and told him, “let’s go get James.” The appellant explained that by “go get”
he meant that he and Jonathan were going to rob Proctor. Demetrius Wade, who was at Jonathan’s
house, asked if he could accompany the pair. The appellant drove Jonathan and Wade to Sonic. The
appellant “pulled up . . . in the neighborhood behind Sonic and Jonathan and [Wade] jumped out of
the car and just went and robbed James. Then they came back to the car and we took off.”

        The appellant testified that before getting out of the car, Jonathan and Wade disguised
themselves by wrapping t-shirts around their faces and Jonathan pulled out a chrome .25 caliber
pistol. When the appellant saw the gun, he decided to remain in the car because “all I really wanted
to do was kick [Proctor’s] butt.” However, the appellant admitted that he later shared in the proceeds
of the robbery, taking $1000 of the $1700 which was stolen.

         In October 2001, the appellant was charged with one count aggravated robbery. On June 25,
2002, the appellant pled guilty to the lesser charge of robbery. The plea agreement provided that the
appellant would receive a six year sentence, with the manner of service to be determined by the trial
court. At the sentencing hearing for the appellant and co-defendant Wade, the appellant asked the
trial court to allow him to serve his six year sentence on intensive probation. The appellant testified
that at the time of the instant offense, he was twenty years old. He stated that he was a high school
graduate and currently employed. In fact, the appellant introduced into evidence a letter from his
employer, which letter stated that the appellant had “demonstrated perfect attendance and good job
performance.” The appellant further related that he was also enrolled in an internet course to become
a “certified microsoft systems engineer.”

        The appellant testified that he had no prior criminal history as an adult or a juvenile. After
acknowledging the danger created by his actions, the appellant expressed remorse about committing
the offense, stating, “that was not my style.” The appellant insisted that, since committing the instant
offense, he had not been involved in any other illegal activity. Although he had used marijuana and
cocaine in the past, the appellant maintained that he had no problems with drugs or alcohol.
Moreover, the appellant explained that because he worked from 10:45 p.m. to 7:15 a.m., he would
not be “on the street at night.”

        After considering the appellant’s testimony and the presentence report, the trial court found,
                I am aware that the defendants are convicted of Class C felonies and
                according to our statute, they’re presumed to be favorable candidates
                for alternative sentencing. However, by case law in this state, I’m
                allowed to look at the offense that was actually committed and that’s


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               an armed robbery for which they would not be eligible for alternative
               sentencing. However, in Mr. Curtis Well’s case, I find that he is in
               fact a good candidate for alternative sentencing, but I will order a
               sentence of split confinement. He will serve one year at one hundred
               percent in the Williamson County Jail, five years on intensive
               probation, a condition of which shall be that he’ll be subject to
               random drug screens, pay his costs, . . . [and] maintain full-time
               employment.
On appeal, the appellant contends that the trial court erred by not granting total probation.

                                             II. Analysis

         When an appellant challenges the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). 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 the record demonstrates that the trial court failed to consider the sentencing principles and
the relevant facts and circumstances, review of the sentence will be purely de novo. Id.

        In conducting our review, this court must consider (1) the evidence, if any, received at trial
and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the
arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of the
offense; (5) any mitigating or enhancement factors; (6) any statements made by the appellant on his
own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-
35-102 and -103 (1997), -210 (Supp. 2002). See also Ashby, 823 S.W.2d at 168. The burden of
showing that a sentence was improper is on the appellant. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.

        Tennessee Code Annotated section 40-35-102(5) provides that only “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 or standard offender convicted of a Class C,
D or E felony is presumed to be a favorable candidate for alternative sentencing options.” Tenn.
Code Ann. § 40-35-102(6). Furthermore, “[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) (citation omitted); see also Tenn.
Code Ann. § 40-35-303(a) (Supp. 2002). However, the presumption of alternative sentencing may
be rebutted by “evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); see also State v.
Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). Guidance as to what constitutes “evidence to the contrary”



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is found in Tennessee Code Annotated section 40-35-103(1) (1997), which provides for confinement
when:
               (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.

        Because the appellant was convicted of a Class C felony and sentenced as a Range I standard
offender, the appellant was presumed to be a favorable candidate for alternative sentencing. The trial
court acknowledged this fact and imposed an alternative sentence, ordering the appellant to serve
one year in confinement, followed by five years of intensive probation. The appellant contends that
the trial court erred by not granting total probation. Specifically, the appellant asserts that “[i]t
appears the trial court relied upon the fact that the court can look at the actual crime of aggravated
robbery to determine the sentence.” The appellant argues that this is not a sufficient reason to deny
probation. We disagree.

        Even if an appellant is presumed to be a favorable candidate for alternative sentencing, the
appellant bears the burden of establishing suitability for total probation. State v. Boggs, 932 S.W.2d
467, 477 (Tenn. Crim. App. 1996); see also Tenn. Code Ann. § 40-35-303(b) (Supp. 2002). To meet
this burden, “the appellant must demonstrate that probation will ‘subserve the ends of justice and
the best interest of both the public and the defendant.’” Id. (quoting State v. Bingham, 910 S.W.2d
448, 456 (Tenn. Crim. App. 1995).

        After considering “the offense that was actually committed,” the trial court determined that
although the appellant was a favorable candidate for alternative sentencing, he was not entitled to
total probation. When determining the proper sentence for a guilty plea, a trial court is permitted to
look behind the plea bargain and consider the actual offense committed. State v. Jonathan Omar
Echevarria, No. M2001-02703-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 781, at *9 (Nashville,
Sept. 16, 2002) (citing State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983)). In the instant
case, the actual offense committed was aggravated robbery. Seeking revenge on co-worker James
Proctor, the appellant went to his cousin Jonathan’s residence and told him that he wanted to “go get
James.” The appellant then drove Jonathan and co-defendant Wade to Sonic, the site of the robbery.
The appellant watched as Jonathan and Wade disguised themselves and Jonathan grabbed a gun.
Although the appellant claimed that all he wanted to do was “kick [Proctor’s] butt,” he did nothing
to prevent the robbery. Instead, the appellant planned the robbery, waited as his companions robbed
Proctor at gunpoint, and later shared in the proceeds. Based upon the nature and circumstances of
the offense, we conclude that the appellant has failed to establish his suitability for total probation.




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                                 III. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.




                                              ___________________________________
                                              NORMA McGEE OGLE, JUDGE




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