        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs February 23, 2010

                  STATE OF TENNESSEE v. ADAM D. SLUDER

                 Appeal from the Criminal Court for Sullivan County
           Nos. S53,603; S54,133; S54,134; S55,354   R. Jerry Beck, Judge


                   No. E2009-01705-CCA-R3-CD - Filed June 4, 2010


The Defendant, Adam D. Sluder, pled guilty to theft over $500, two counts of violating the
sexual offender registration law, six counts of statutory rape, and felony failure to appear, all
Class E felonies. The Defendant received a two-year sentence for each offense as a Range
I, standard offender with the failure to appear sentence to be served consecutively, for an
effective four-year sentence. The trial court denied the Defendant’s request to serve his
sentence on probation or in community corrections. The Defendant appeals the trial court’s
decision, contending that confinement is an improper punishment given the nature of the
offenses, his criminal history, and his rehabilitation. We affirm the judgments of the trial
court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant Public
Defender, for the appellant, Adam D. Sluder.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and Julie Canter,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       This case stemmed from the Bristol Tennessee Police Department’s investigation of
a theft of baseball cards. In January 2007, a witness saw the Defendant walk into a
residence, take the cards, and leave in a white car. During the course of the investigation,
the police learned that the Defendant was a convicted sex offender who had failed to register
after moving to Bristol. The police questioned the Defendant’s girlfriend on March 1, 2007.
She told them that she and the Defendant had had sex several times over the last six months.
During that period, the Defendant was twenty-one or twenty-two, while his girlfriend was
sixteen or seventeen. After he was indicted for theft, statutory rape, and violating the sexual
offender registration law, the Defendant incurred a criminal charge for failing to appear in
court on June 6, 2008. The Defendant pled guilty to these charges.

        At the sentencing hearing, the presentence report, a letter from a probation officer, and
the Defendant’s own testimony recounted the Defendant’s history. The Defendant was
convicted of drug possession in Smythe County, Virginia, in late 2004, and he was convicted
of statutory rape in Johnson County, Tennessee, in May 2005. In both cases, the Defendant
received probation.

        The Defendant violated his probation six times over the next four years. According
to the letter from his probation officer, the Defendant failed to maintain employment, to
report to the probation officer, to pay court costs, to participate in sex offender treatment, and
to perform community service work. The Defendant also violated his probation by
committing the crimes in this case.

        The Defendant contended that alternative sentencing was the proper punishment. He
apologized for his behavior and asked the court for a second chance. He testified that he was
trying to “[put] one foot in front of the other in the right direction” since his arrest and the
birth of his son. He testified that he had not violated his probation since August 2008 and
had passed routine drug tests since January 2009–a claim verified by the letter from his
probation officer. He also said he had given up using drugs and alcohol.

        The Defendant also pointed to the fact that he married the victim of the statutory rape
and that they now had a child together. He admitted that he and his wife lived apart, but he
attributed the separation to the geographical demands of his probation. He also admitted that
the Department of Human Services revoked his custody of the child due to a pending drug
paraphernalia charge. He said the agency gave custody to his mother shortly thereafter.
Despite the various challenges to his family life, the Defendant testified that he regularly saw
his wife and supported his child.

        The Defendant introduced a letter from a previous employer. The letter said that the
Defendant had performed construction jobs for the company but was eventually laid off due
to a lack of work. The letter said that the Defendant was a “hardworking, credible man” and
was still in good standing with the company.




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       The trial court denied the Defendant’s request for alternative sentencing based upon
the Defendant’s criminal history. The court found that the Defendant’s previous conduct on
probation raised concerns that he would violate the law again if he were given alternative
sentencing.

       The Defendant now appeals the trial court’s ruling, arguing that confinement was
improper because of his potential for rehabilitation. He requests alternative sentencing in the
form of either probation or community corrections. The State responds that the sentence was
proper.

        When a Defendant appeals the manner of service of a sentence imposed by the trial
court, this court conducts a de novo review of the record with a presumption that the trial
court’s determinations are correct. T.C.A. § 40-35-401(d). The burden is now on the
appealing party to show that the sentence is improper. Id., Sent’g Comm’n Cmts. If the trial
court followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991). However, “the presumption of correctness which accompanies the
trial court’s action 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).

        The record reflects that the trial court properly applied the sentencing principles to the
case. The court affirmed that it had reviewed the evidence and cited the Defendant’s
criminal history and prior probation violations as reasons for the sentence of confinement.
The court also stated that the Defendant was likely to violate the law again if given
alternative sentencing, therefore finding that the Defendant lacked potential for
rehabilitation. Because the trial court’s consideration of these sentencing principles is on the
record, the trial court’s ruling is entitled to the presumption of correctness. The burden now
falls on the Defendant to prove that the sentence was improper.

        First, the Defendant claims that the trial court erred by denying probation. A
Defendant has to prove his suitability for probation. T.C.A. § 40-35-303(b). This burden
includes demonstrating that probation will “subserve the ends of justice and the best interest
of both the public and the Defendant.” State v. Housewright, 982 S.W.2d 354, 357 (Tenn.
Crim. App. 1997) (quoting State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.
1995)). Although “probation must be automatically considered as a sentencing option for
eligible Defendants, the Defendant is not automatically entitled to probation as a matter of
law.” T.C.A. § 40-35-303(b), Sent’g Comm’n Cmts.; see State v. Fletcher, 805 S.W.2d at

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787. Placing an eligible defendant on probation falls within the court’s discretion. See
T.C.A. §§ 40-35-303(c)(1), -102(6)(D).

       When choosing between confinement and alternative sentencing such as probation,
the court should consider whether (1) confinement is needed to protect society by restraining
a defendant who has a long history of criminal conduct, (2) confinement is needed to avoid
depreciating the seriousness of the offense or confinement is particularly suited to provide
an effective deterrence to people likely to commit similar offenses, or (3) less restrictive
measures than confinement have frequently or recently been applied unsuccessfully to the
defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. § 40-35-103(1)(A)-(C)). The court may
also consider the mitigating and enhancing factors set forth in Tennessee Code Annotated
sections 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). In addition, the court should consider a defendant’s potential
or lack of potential for rehabilitation when determining if an alternative sentence would be
appropriate. T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.

       The trial court decided against probation because of the Defendant’s criminal history,
his prior probation violations, and his lack of potential for rehabilitation–all of which are
factors supporting a sentence of confinement. See T.C.A. §§ 40-35-103(1)(C), (5), -114(1),
(13)(C). The Defendant committed six probation violations after his convictions for
possession of drugs and statutory rape in 2004 and 2005. The first four violations took place
between 2004 and 2006 and included such offenses as failing to participate in sex offender
treatment and ignoring community service obligations. He then committed the four separate
felonies in this case. One of these felonies was statutory rape–the very offense for which he
was already on probation. In response to the proof of his criminal history, the Defendant
acknowledged that he made mistakes and asked the trial court for a second chance. He
claimed to be a hard working family man with a newfound respect for the law and introduced
proof that he had not violated his probation in over a year and had passed drug tests since
January 2009.

        The Defendant has failed to overcome the presumption of correctness afforded the
trial court’s sentencing determinations. See Housewright, 982 S.W.2d at 357. Because we
must defer to the trial court, which properly applied the sentencing principles and followed
the sentencing procedures, we affirm its denial of probation.

       Second, the Defendant claims that the trial court erred by denying him participation
in community corrections. Again, the Defendant has failed to prove any error by the trial
court. The Defendant was never eligible for community corrections. The Defendant was
convicted of statutory rape, a crime against a person. T.C.A. § 39-13-506; see T.C.A. § 40-
36-106(a)(1). Those convicted of crimes against persons are barred from participation in

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community corrections. See T.C.A. § 40-36-106(a)(1). The trial court did not err by denying
an alternative sentence for which the Defendant was not eligible.

      The Defendant has failed to prove that the trial court erred by sentencing him to
confinement. In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.


                                          _______________________________________
                                          JOSEPH M. TIPTON, PRESIDING JUDGE




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