         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 20, 2007

          STATE OF TENNESSEE v. DODRICK LOSAME HOUSTON

                 Direct Appeal from the Criminal Court for Davidson County
                    Nos. 2006-I-19, 2006-I-187  Mark J. Fishburn, Judge



                     No. M2006-00889-CCA-R3-CD - Filed March 20, 2007


The defendant, Dodrick Losame Houston, pled guilty to burglary and violating the motor vehicle
habitual offender law, Class D and E felonies respectively. He was sentenced as a Range I, standard
offender to two years for the former and one year for the latter, with the sentences to be served
consecutively, for an effective sentence of three years. On appeal, he argues that the trial court erred
by denying probation. Following our review, we affirm the sentences ordered by the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL, JJ., joined.

Jeffrey A. DeVasher, Assistant Public Defender (on appeal), and Jonathan Levy, Assistant Public
Defender (at trial), for the appellant, Dodrick Losame Houston.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        At his February 9, 2006, submission hearing for the burglary charge, the defendant agreed
to a two-year sentence in exchange for his guilty plea, and the State set out the underlying proof:

       [The] proof in this case would show that on November 18th of [2005], officers
       responded to a burglary alarm at Main Street Market in Davidson County. When
       they arrived, the owner came out yelling, “[S]omeone’s inside there, hurry.” The
       officer went inside and found the defendant laying [sic] on the floor beside the
       counter. There was a hole in the ceiling and a rope in the hole, which the defendant
       had entered the building with. He was bleeding from the head and he said the
       business owner hit him with a stick on the head and leg. The owner said he only hit
       him because he was afraid of him. The defendant had (unintelligible) up some
       cigarettes and other items on a string in order to get them out through the hole.

        Similarly, at his March 17, 2006, submission hearing, the defendant agreed to a consecutive
one-year sentence for the motor vehicle habitual offender offense, and the State offered the following
factual basis:

       [O]n September 15 of 2005, the defendant was driving a [Chevrolet] Beretta with no
       license plate or temporary tag. A traffic stop was initiated, and he presented a
       Tennessee ID only card. When the officer checked the status, it revealed that the
       defendant was a revoked habitual motor vehicle offender. He was taken into custody
       at that time . . . .

        Also on March 17, 2006, the trial court held a sentencing hearing to determine the manner
in which the defendant would serve his sentences. At the hearing, Amy Ritenaw, an evangelist and
president of Moral Ministries, Inc., testified that the defendant had moved to Nashville from
Memphis in August 2005 because he had a “hard time” in Memphis and wanted to “start over.” She
said that she had been in daily contact with the defendant, and, at one point, he had been able to buy
a car and take the G.E.D. test. He obtained a job, but “the job ended,” and “when these inciden[ts]
happened he was homeless.” The defendant had lived with her intermittently for more than a week,
and if he were released on probation, she “could help him locate a place to stay” and another
individual was prepared to “help him find a good place to work.” On cross-examination, Ritenaw
acknowledged that she did not know that the defendant had eight prior felony convictions in Shelby
County.

        The defendant testified that he was not proud of his criminal record, that the community he
came from in Shelby County “was a bad environment,” and that he had “started using drugs at an
early age.” He stated that his previous convictions for theft, burglary, and robbery were the result
of his “high drug habit.” He admitted that he had an outstanding burglary warrant in Shelby County,
that he committed the present offenses while on probation for a felony conviction, and that he had
been convicted of seven other felonies for which he had served sentences of confinement. Lastly,
the defendant acknowledged that he was receiving a “good deal” because, with his record, he could
have been sentenced to eight to twelve years for the burglary conviction alone.

        After hearing argument, the trial court denied probation and ordered that his sentences be
served in confinement. The defendant appealed.

                                            ANALYSIS




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        On appeal, the defendant argues that the trial court erred by ordering that his sentences be
served in confinement. Specifically, “[h]e contends that the trial court should have placed him on
immediate probation, or, alternatively, probation following a period of confinement.”

        When reviewing the denial of probation, this court conducts a de novo review on the record,
“with a presumption that the determinations made by the court from which the appeal is taken are
correct.” Tenn. Code Ann. § 40-35-401(d) (2005). The presumption of correctness 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).
Additionally, if appellate

       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 that the trial court’s
       findings are adequately supported by the record, then we may not modify the
       sentence even if we would have preferred a different result.”

State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000) (quoting State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991)). As it is apparent from our review of the record on appeal that the trial court
considered appropriate principles of sentencing, the arguments of counsel, and evidence presented
at the defendant’s sentencing hearing before imposing a lawful sentence, the presumption that the
determinations made by the trial court are correct applies in the present case.

        A defendant shall be eligible for probation, subject to certain exceptions, “if the sentence
actually imposed upon such defendant is ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a)
(2005). Even if eligible however, the defendant is not automatically entitled to probation as a matter
of law; “the burden of establishing suitability for probation rests with the defendant.” Tenn. Code
Ann. § 40-35-303(b) (2005); State v. Summers, 159 S.W.3d 586, 599 (Tenn. Crim. App. 2004)
(citing Ashby, 823 S.W.2d at 169).

        There is no bright line rule for determining when a defendant should be granted probation.
State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by
Hooper, 29 S.W.3d at 9-10. Every sentencing decision necessarily requires a case-by-case analysis.
Id. Factors to be considered include the circumstances surrounding the offense, the defendant’s
criminal record, the defendant’s social history and present condition, the need for deterrence, and
the best interest of the defendant and the public. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim.
App. 1997); see also Tenn. Code Ann. § 40-35-103(1)(A) (2005). Also relevant is whether a
sentence of probation would unduly depreciate the seriousness of the offense, see Tenn. Code Ann.
§ 40-35-103(1)(B) (2005); State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997), and whether
“[m]easures less restrictive than confinement have frequently or recently been applied unsuccessfully
to the defendant.” Tenn. Code Ann. § 40-35-103(1)(C) (2005).




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        In the present case, after considering the general principles of sentencing, the trial court found
two enhancement factors applicable: (1) the defendant “has a previous history of criminal
convictions or criminal behavior”; and (2) the defendant was on supervised release in the community
when he committed the offenses at issue. See Tenn. Code Ann. § 40-35-114(1), (13). The court also
ruled that one mitigating factor applied – the “criminal conduct neither caused nor threatened serious
bodily injury.” See Tenn. Code Ann. § 40-35-113(1).

        Additionally, the court stated:

                The biggest problem that the Court has, in addition to his lengthy record, is
        that even if I accept, and I will accept, that [the defendant] wants to change his life,
        and for a period of time when he was working with Reverend Ritenaw it may have
        been going in that direction, but as soon as the first slip occurs, i.e., he is unemployed
        and he doesn’t have a place to live, he then jumps back in his old habits and those old
        habits, unfortunately, is to steal from other people.

Ultimately, the court ruled that the defendant had failed to demonstrate that he was able to
successfully complete an alternative sentence – stating that he had not shown that he would be in a
structured environment, how he would be employed, where he would live, or in what way he would
“address his treatment needs.”

       The defendant argues the court’s ruling was error because in addition to being eligible for
probation, under Tennessee Code Annotated section 40-35-102(6), “he is considered a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary, having been
convicted of” Class D and E felonies. We disagree. In Hooper, our supreme court instructed that
Tennessee Code Annotated section 40-35-103(1) provides “[g]uidance as to what may constitute
‘evidence to the contrary’– or evidence that the defendant is a member of the population for whom
incarceration is a priority.” Hooper, 29 S.W.3d at 5. The statute provides:

               (1) Sentences involving confinement should be based on the following
        considerations:

              (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[.]




                                                   -4-
Tenn. Code Ann. § 40-35-103(1) (2005) (emphasis added). Contrary to the defendant’s assertions,
he is not a favorable candidate for alternative sentencing because, based on his record, he has a long
history of criminal conduct, see Tenn. Code Ann. § 40-35-103(1)(A) (2005), and because he was on
probation when he committed the immediate offenses, measures less restrictive than confinement
have recently been applied unsuccessfully to the defendant. See Tenn. Code Ann. § 40-35-103(1)(C)
(2005); see also Hooper, 29 S.W.3d at 5.

        The defendant also argues that because all three of the considerations listed in Tennessee
Code Annotated section 40-35-103(1) are not applicable, he should have been granted a probationary
sentence. This argument is without merit: it is clear from the statute that a sentence of confinement
may be based on any one of the three factors alone. See Tenn. Code Ann. § 40-35-103(1)(A)-(C)
(2005).

                                           CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the sentences ordered by the trial
court.

                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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