          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON                FILED
                            FEBRUARY SESS ION, 1998          March 27, 1998

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TE NNE SSE E,               )   C.C.A. NO. 02C01-9705-CC-00185
                                     )
            Appellee,                )
                                     )   HARDEMAN COUNTY
V.                                   )
                                     )
                                     )   HON. JON KERRY BLACKWOOD,
BEVELYN BAILEY,                      )   JUDGE
                                     )
            Appe llant.              )   (THEFT)



FOR THE APPELLANT:                       FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR.                        JOHN KNOX WALKUP
113 North Court Squ are                  Attorney General & Reporter
P.O. Box 26
Wa verly, TN 37185                       JANIS L. TURNER
(ON AP PEAL O NLY)                       Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

GARY F . ANTRICAN                        ELIZABETH T. RICE
District Public Defender                 District Attorn ey Ge neral

JEANNIE KAESS                            JERRY W. NORWOOD
Assistant Public Defender                Assistant District Attorney General
P.O. Box 700                             Hardeman County Courthouse
Somerville, TN 38068                     Bolivar, TN 38008




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

                                OPINION
      The Defen dant, Bevelyn Bailey, appeals as of right the sentence imposed by

the trial court upon his conviction of theft. Defendant was indicted by the Hardeman

Coun ty Grand Jury of burglary, theft and criminal impersonation. Defendant pled

guilty to theft of property worth between $1,000 and $10,000 in violation of

Tennessee Code Annotated section 39-14-103. The trial court sentenced Defendant

to eight (8) years incarc eration as a R ange II Multiple O ffender and de nied

Defendant’s request for alternative sentencing. The sentence was ordered to run

consecutively to a prior fifteen (15) year sentence imposed in Fayette County, for

which he was on parole at the time of the present offense. In this appeal, Defendant

argues that the trial co urt erred in senten cing him to eight (8) years incarceration and

in finding that he was not a favorable candidate for alternative sente ncing of split

confinement or Community Corrections. We affirm the judgment of the trial court.



      Defendant testified on his own behalf at the sentencing hearing. He testified

that in the past he wa s “just w ild” but th at he “g rew up men tally” wh ile he w as in

prison. He stated that he obtained a job when he was on parole, but became

addicted to crack c ocaine in 1995. D efendant testified that this addiction to crack

cocaine caused him to skip work and to ultimately quit his job. He further testified

he would not ha ve comm itted the present offense of theft if he had not been on

cocaine .



      When an accused challenges the length, range, or the manner of service of

a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with

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

Code Ann. § 4 0-35-40 1(d). Th is presum ption is “co nditioned upon th e affirmative

showing in the record that the trial court considered the sentencing principles and

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all relevant facts and circums tances .” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). There are, however, exceptions to the presumption of correctness. First, the

record must demonstrate that the trial court considered the sentencing principles and

all relevant facts and circums tances . Id. Seco nd, the presu mptio n doe s not a pply

to the legal conclusion s reached by the trial court in sentenc ing.          Third, the

presum ption does not ap ply when the d eterminations made b y the trial court are

predicated upon u ncontro verted fac ts. State v. Smith, 898 S.W.2d 742, 745 (Tenn.

Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn . 1995).



      Our review requires an analysis of: (1) The evidence, if any, received at the

trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defen dant’s

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, & -

210; see Sta te v. Smith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentenc e after having given due consideration and

proper weight to the facts and principles set out under the sentencing law, and that

the trial court’s findings of fact are ad equa tely supported by the record, then we may

not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v.

Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).



      Upon review of the record, we find that the trial court failed to state specific

findings of fact justifying the enhancement and mitigating factors applied and how

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it determined the weigh t to be app lied to eac h of them . Furthermo re, the trial court

did not explicitly se t forth its reasoning for the sentence imposed or for the denial of

alternative sentencing, and hence, failed to follow proper statutory sentencing

procedure. Therefore, review by this Court is de novo without a presumption of

correctness.



        Defendant first argues that the eight (8) year sentence imposed was

excess ive. At the brief sentencing hearing, the trial court noted two enhancement

factors to be applicable: (1) D efendant ha d a previous h istory of criminal convictions

or criminal behavior; and (2) the felony was com mitted while on parole from a prior

felony conviction. Tenn. Code Ann. § 40-35-114(1) and (13)(B). T he trial court

considered two mitigating factors: (1) that the offense neither caused nor threatened

bodily injury; and (2) Defendant admitted guilt. Tenn. Code Ann. § 40-35-113(1) and

(13).



        The pre-sentence report indicates that Defendant was previously convicted

of the follo wing o ffense s: seco nd de gree b urglar y in 1976, two cou nts of attem pt to

com mit the felony of burglary in 1979, possession of stolen property in 1980,

receiving stolen property in 1982, first-degree burglary on two separate occasions

in 1985, and larceny, second-degree burglary and first-degree burglary in 1988. At

the time he committed the present offense, he was on parole from a prior fifteen (15)

year sen tence im posed in 1988 in Fayette C ounty.



        Tennessee Code Annotated section 40-35-210(c) provides that the minimum

sentence within the range is the presumptive sentence for a Class D fe lony. If there

are enhancing and mitigating factors, the court must start at the minimum sentence

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in the range and enhance the sentence as appropriate for the enhancement factors

and then reduce the sentence within the range as appropriate for the mitigating

factors. Tenn. Code Ann. § 40-35-210(e). It was stipulated by the parties that the

Defendant would be senten ced as a Ran ge II Multiple O ffender. T heft of prop erty

between $1,000 and $10,000, a Class D felony, has a sentence range of four (4) to

eight (8) years for a Range II offender. Tenn. Code Ann. §§ 40-35-1 12(b)(4), 39-14-

103 and 39-14-105(3). Even if some evidence of mitigation existed, which was

acknowledged by the tr ial court, where the mitigating factors are strongly outweighed

by the enhancement factors, the maximum senten ce is warra nted. State v. Ruane,

912 S.W.2d 766, 785 (Tenn. Crim. A pp. 1995). Based upon Defendant’s lengthy

criminal history and the fact that the present offense was committed while Defendant

was on parole, it was well within the trial court’s discretion to impose the maximum

sentence. Thus, the trial was justified in imposing the maximum sentence of eight

(8) years.



      Tennessee Code A nnotated se ction 40-35-10 2 outlines whe n alternative

sentencing is appropriate. A defendant who “is an especially mitigated or standard

offender convicted of a Clas s C, D or E felony is pres ume d to be a favor able

candid ate for altern ative se ntenc ing options in the absence of evidence to the

contrary.” Tenn . Code Ann. § 40-35-102(6). As noted above, Defen dant ag reed to

plead guilty as a Range II Multiple Offender, so he is not within the parameters of

Tennessee Code A nnotated se ction 40-35-102(6), and is therefore not presumed

to be a favo rable can didate for a lternative se ntencing . Our sentencing law also

provides that “convicted felons committing the most severe offenses, possessing

criminal histories evincing a clear disregard for the laws and morals of society, and




                                         -5-
evincing failure of past efforts at rehabilitation shall be given first priority regarding

sentences involving incarceration.” T enn. Cod e Ann. § 40 -35-102(5).



       When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations which

militate against alternative sentencing include: the need to protect society by

restraining a defendant having a long history of criminal conduct, whether

confinement is partic ularly ap propr iate to e ffectively deter o thers lik ely to com mit a

similar offense, th e need to avoid depreciating the seriousness of the offense, and

the need to order confinement in cases in which less restrictive measures have often

or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-

103(1)(A ) - (C).



       In the case sub judice, we find tha t confin eme nt is neces sary to pro tect socie ty

from Defendant b ased o n his exten sive crimin al record dating ba ck to 197 6. See

Tenn. Code Ann. § 4 0-35-10 3(1)(A). He has been previously convicted of numerous

felony offenses and the present offense was c omm itted wh ile on parole from a prior

felony conviction .    The D efenda nt has apparently failed at all past efforts of

rehabilitation. See Tenn. Code Ann. § 40-35-103(5). Based on these facts, the

Defendant apparently has a total disregard for the laws and morals of society.

Regarding Defe ndan t’s reque st for sp lit confin eme nt, this Court has h eld that where

a defend ant’s histor y indicates a clear dis regard fo r the law an d mora ls of society

and a failure of p ast efforts to rehabilitate , the trial judg e doe s not a buse his

discretion in denying probatio n. State v. Chrisman, 885 S.W.2d 834 (Tenn. Crim .

App. 19 94).

                                             -6-
      The Defendant also argues that Com mun ity Corre ctions would be a su itable

alternative to incarce ration. The Com mun ity Corre ctions Act allo ws ce rtain eligible

offenders to participa te in community based alternatives to incarceration, how ever,

a defendant must first be a suitable candidate for alternative sentencing. Tenn.

Code Ann. § 40-35-104(9).        Therefore, since the Defendant is n ot a su itable

candid ate for alternative sentencing because of the factors discus sed a bove, this

preclud es him from pa rticipating in th e Com munity C orrection s progra m.



      W hile the trial court may h ave failed to specify certain facts to support the

sentence imposed, we find that the record provides the facts necessary to affirm the

trial court’s decision. Based upon the evidence presented at the sentencing hearing,

the presentence report, the princip les of sen tencing s et forth in T enn. C ode An n. §

40-35-102, -103, -104, the nature of the offense, and the Defendant’s potential for

rehabilitation, we find that the trial court did not err in imposing the maximum

senten ce and denying the Defe ndant a ny type of a lternative se ntencing .




                                           -7-
    Accordingly, the judgment of the trial court is affirmed.



                              ____________________________________
                              THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
JOHN H. PEAY, Judge




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