        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                              AT KNOXVILLE                       August 10, 1999

                                                                Cecil Crowson, Jr.
                         APRIL SESSION, 1999                    Appellate C ourt
                                                                    Clerk



STATE OF TENNESSEE,           )   C.C.A. NO. 03C01-9806-CR-00196
                              )
      Appellee,               )
                              )
                              )   BLOUNT COUNTY
VS.                           )
                              )   HON. D. KELLY THOMAS, JR.
STEVE EUGENE HILL,            )   JUDGE
                              )
      Appe llant.             )   (Direct Appeal - Probation)




FOR THE APPELLANT:                FOR THE APPELLEE:

JULIE A. MAR TIN                  JOHN KNOX WALKUP
Contract Appellate Defender       Attorney General and Reporter
P. O. Box 426
Knoxville, TN 37901-0426          ELLEN H. POLLACK
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243

                                  MIKE FLYNN
                                  District Attorney General

                                  EDWARD P. BAILEY, JR.
                                  Assistant District Attorney
                                  363 Court Street
                                  Maryville, TN 37804



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION


       The appellan t, Steve Euge ne Hill, p led gu ilty in the Blount County Criminal

Court to o ne (1) co unt of eva ding arre st, a Class E felony, and one (1) count of

reckless driving, a Class B misdemeanor. The trial court sentenced him to

concurrent terms of one (1) year for evading arrest and six (6) months for

reckless driving. The trial court further ordered that the appellant be placed on

supervised probation upon his service of fifteen (15) days in jail. On appeal, the

appellant contends that the trial court erred in requiring him to serve fifteen (15)

days in jail before being placed on probation. After a thorough review of the

record before this Cou rt, we conclude that there is no revers ible error and affirm

the trial cou rt’s judgm ent.



                                          I




       On July 18, 1997, Officer James L. Wilson observed the appellant driving

his automobile in speeds in excess of the posted speed limit on Highway 321

We st. He also observed the appellant unlawfully changing lanes and otherwise

driving in an e rratic manne r in heavy traffic. W hen O fficer W ilson a ctivated his

blue lights to stop the appellant’s vehicle, the appellant fled from the officer. The

appellan t was later a pprehe nded a nd place d unde r arrest.

       Subseq uently, the appellant pled guilty to one (1) count of reckless driving

and one (1) count of felony evading arrest. Pursuant to the plea agreement, he

received concurrent sentences of six (6) months for reckless driving and one (1)




                                         -2-
year for felony evading arrest, with the manner of service to be determined by the

trial court.

       At the sentencing h earing, the app ellant admitted tha t he had bee n drag

racing on Highway 321 when he was arrested. However, he denie d inten tionally

evading the officer’s signal to stop. He testified that he was self-employed and

did not drink alcohol or take illegal drugs. When the prosecutor questioned the

appellant regard ing his prior convictions, he testified that he did not remember

ever being arrested. The pre-sentence report indicates that the appellant has a

prior criminal history including convictions for leaving the scene of an acc ident,

public intox ication, ass ault and b attery and driving on a revoked license.

       At the co nclus ion of th e hea ring, the trial cou rt deter mined that the

appellant should serve fifteen (15) days in jail before being placed on supervised

proba tion. Fro m his sente nce, th e app ellant b rings th is app eal.



                                           II




       This Court’s review of the sentenc e impose d by the trial court is de novo

with a presumptio n of co rrectn ess. T enn. C ode A nn. § 4 0-35- 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 (T enn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is simply de novo. State v. Poo le, 945 S.W.2d 93, 96

(Tenn. 19 97).

       The burden is upon th e appe aling party to show th at the sente nce is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comm ents.

                                          -3-
In conducting our review, we are required, pursuant to Ten n. Cod e Ann. §

40-35-210, to consider the following factors in sentencing:

      (1) the evidence, if any, received at the trial and the sentencing
      hearing;

      (2) the pre senten ce repo rt;

      (3) the principles of sentencing and arguments as to sentencing
      alternatives;

      (4) the nature and characteristics of the criminal conduct involved;

      (5) evidence and information offered by the parties on the
      enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;
      and

      (6) any statement the defen dant w ishes to ma ke in h is own beha lf
      about s entenc ing.

      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 in the

absence of evidence to the con trary. Ten n. Cod e Ann. § 40-35-1 02(6). A tr ial

court must presume that a defendant sentenced to eight years or less and who

is not an offende r for whom inc arceration is a priority is subjec t to alternative

sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It

is further presumed that a sentence other than incarceration would resu lt in

successful rehabilitation unless rebutted by sufficient eviden ce in the reco rd. Id.

at 380. H owev er, although a defe ndan t may b e pres ume d to be a favor able

candidate for alternative sentencing, the defendant has the burden of estab lishing

suitability for total probatio n. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.

App. 1996); see Tenn. Code Ann. § 40-35-303(b). Even though probation must

be autom atically con sidered , “the defend ant is not a utoma tically entitled to

probation as a m atter of la w.” Te nn. C ode A nn. § 4 0-35- 303(b ) Sen tencin g

Commission Com ments ; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.


                                         -4-
App. 1991). Indeed, a defendant seeking full probation bears the burden on

appeal of showing that the sentence ac tually im pose d is imp roper and th at full

probation will be in both the best interests of the defendant and the public. State

v. Bingham, 910 S.W .2d 448, 456 (Tenn. Crim . App. 1995 ).

      A trial court should consider the circumstances of the offense, the

defen dant’s criminal record, the defendant’s social history and present condition,

the need for deterrence, and the best interest of the d efend ant an d the p ublic in

determining whethe r to grant o r deny pro bation. State v. Boyd, 925 S.W.2d 237,

244 (Tenn . Crim. A pp. 199 5); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim.

App. 1995). In d etermin ing if incarce ration is ap propriate , 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 con finement is pa rticularly appropriate to effective ly deter others

likely to comm it similar offenses, and whether less re strictive measure s have

often or recen tly been u nsucce ssfully app lied to the d efenda nt. Tenn. Code Ann.

§ 40-35-103(1); see also State v. Grigsby, 957 S.W .2d 541 , 545 (T enn. C rim.

App. 1997 ).



                                          III




      The appellant argues that he is entitled to a presumption o f alternative

sentencing becau se he w as con victed of a Class E felony and a Class B

misdem eanor. Furthermore, he contends that a period of fifteen (15) day s in

confinement is overly excessive under the facts of this case.

      The appellant received a sentence of split confinement, which is a form of

alternative sentencing under Tenn. Code Ann. § 40-35-104(c)(4). It is the

                                          -5-
appe llant’s burden, how ever, to establish that total probation will be in both the

best interests of the defendant and the pub lic. State v. Bingham, 910 S.W.2d at

456.

       In this case, the appellant has a prior criminal history consisting of

convictions for leaving the scene of an accident, public intoxication, assault and

battery and d riving on a revok ed lice nse. T he ap pellant did no t reme mbe r his

convictions for these offense s and he d enied having a criminal history to the

officer prep aring the pre-sen tence re port.

       The trial court m ade no findings w ith regard to its decisio n to confine the

appellant for a period of fifteen (15) days. However, upon this Court’s de novo

review, we conclude that a period of confine ment is w arranted in this case . Albeit

somewhat mino r, the ap pellan t has a prior crim inal his tory extending ove r a

period of ten (10) years. Moreover, the appellant committed and was convicted

of the offens e for lea ving the scen e of an accide nt while on bond awaiting trial for

the present offenses. This re flects n egative ly on his potential for rehabilitation.

Additionally, it appears that the appellant was less than can did with the trial court

in claiming that he did not recall ever being arrested. This Court has recognized

that an appellant’s lack of candor with the trial court reflects negatively on the

appe llant’s rehabilitation potential. State v. Zeolia , 928 S.W.2d 457, 463 (Tenn.

Crim. App . 1996).

       After considering the nature of the offenses committed, the appellant’s prior

record and the appellant’s potential for rehabilitation, we conclude that a period




                                          -6-
of fifteen (15) days confinement is appropriate under the circumstances of th is

case. Accordingly, the judgment of the trial court is affirmed.



                                ____________________________________
                                JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




                                       -7-
