             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            FEBRUARY 1998 SESSION
                                                       FILED
                                                         March 19, 1998
STATE OF TENNESSEE,                )
                                   )                   Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
                    APPELLEE,      )
                                   )          No. 02-C-01-9705-CR-00188
                                   )
                                   )          Shelby County
v.                                 )
                                   )          James C. Beasley, Jr., Judge
                                   )
                                   )          (Sentencing)
CONNIE L. FULTON,                  )
                                   )
                   APPELLANT.      )



FOR THE APPELLANT:                      FOR THE APPELLEE:

Robert M. Brannon, Jr.                  John Knox Walkup
Attorney at Law                         Attorney General & Reporter
295 Washington Ave., Suite 3            425 Fifth Avenue, North
Memphis, TN 38103                       Nashville, TN 37243-0493

                                        Elizabeth T. Ryan
                                        Assistant Attorney General
                                        425 Fifth Avenue, North
                                        Nashville, TN 37243-0493

                                        William L. Gibbons
                                        District Attorney General
                                        201 Poplar Avenue, Suite 3-01
                                        Memphis, TN 38103

                                        Karen Cook
                                        Assistant District Attorney General
                                        201 Poplar Avenue, Suite 3-01
                                        Memphis, TN 38103




OPINION FILED:_________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Connie L. Fulton (defendant), appeals as of right from a judgment

of the trial court revoking her probation and refusing to impose a second alternative

sentence. In this court, the defendant challenges the refusal of the trial court to impose

a second alternative sentence after revoking her probation. After a thorough review of the

record, the briefs submitted by the parties, and the law governing the issue presented for

review, it is the opinion of this court that the judgment of the trial court should be affirmed.

       This court’s review is hampered by the failure of the defendant to include a

presentence report in the record. This court assumes a presentence report was prepared

and considered by the trial court. The trial court alluded to certain salient facts which are

not included in the record. These facts are extremely relevant to whether the defendant

should receive another alternative sentence.

       The defendant entered a plea of guilty to the possession of cocaine with intent to

sell, a Class C felony, on February 5, 1993. The trial court entered a judgment of

conviction on June 4, 1993. The defendant was sentenced as a Range I standard

offender. The sentence consisted of a $2,000 fine and confinement for five (5) years in the

Shelby County Correctional Center. The court suspended all but fifty (50) days of the

sentence, which was to be served on weekends, and placed the defendant on probation

for five (5) years.

       On September 3, 1996, the State of Tennessee (state) filed a petition to revoke the

defendant’s probation. The petition alleged the defendant had failed to report to the

probation officer as directed and she had been arrested and convicted of one felony and

four misdemeanors while on probation for the offense in question. An evidentiary hearing

was held on December 17, 1996. The trial court revoked the defendant’s probation and

ordered that she serve the remainder of the sentence.

       The defendant was required to report to her probation officer each month. The

evidence introduced by the state revealed the defendant did not report to the probation

officer from September 30, 1994 until March of 1995. The probation officer attempted to

contact the defendant by telephone and by letter on numerous occasions. The defendant


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admitted she was living at the same address the entire time, but she never received the

letters sent to that address.

       When the defendant reported to the probation officer in March, she advised the

officer she had been arrested for the commission of new offenses. The officer advised the

defendant a revocation proceeding would be instituted because she had violated the terms

of her probation. Although the defendant was advised to continue to report, the defendant

did not report after the March meeting.

       In refusing to impose an alternative sentence, the trial court stated the defendant

had been convicted of seven counts of shoplifting and several misdemeanors before she

was placed on probation for the offense in question. On August 6, 1996, the defendant

entered pleas of guilty to theft over $500, a Class E felony, two counts of theft under $500,

Class A misdemeanors, driving after her license had been suspended, revoked or

canceled, also a Class A misdemeanor, and reckless driving, a Class B misdemeanor.

       When an accused challenges the refusal of a trial court to impose an alternative

sentence to incarceration, it is the duty of this court to conduct 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). 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). The presumption does not apply to the legal conclusions

reached by the trial court in sentencing the accused or to the determinations made by the

trial court which are predicated upon uncontroverted facts. State v. Smith, 891 S.W.2d

163, 166 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). However, this court is

required to give great weight to the trial court’s determination of controverted facts as the

trial court’s determination is based upon the witnesses’ demeanor and appearance when

testifying.

       In conducting a de novo review of a sentence, this court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, when

available, (c) the principles of sentencing, (d) the arguments of counsel relative to

sentencing alternatives, (e) the nature and characteristics of the offense, (f) any mitigating



                                              3
or enhancing factors, (g) any statements made by the accused in her own behalf, and (h)

the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.

§§ 40-35-103 and -210. State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app.

denied (Tenn. 1987).

       When the accused is the party challenging the sentence, the accused has the

burden of establishing that the sentence imposed by the trial court was erroneous.

Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d

at 169.

       While the defendant is entitled to the presumption of being fit for alternative

sentencing, Tenn. Code Ann. § 40-35-102(6), the record clearly rebuts this presumption.

The trial court noted the defendant had been convicted of seven counts of shoplifting and

other misdemeanors prior to being placed on probation in this case. While on probation,

the defendant committed and has been convicted of a felony and three misdemeanor

offenses. As the trial court insinuated, releasing the defendant back into the community

would result in the defendant committing additional criminal acts.

       Confinement in this case is necessary to protect society due to the defendant’s long

history of criminal conduct, Tenn. Code Ann. § 40-35-103(1)(A), and to avoid depreciating

the seriousness of the offense and deter the defendant and others from engaging in the

same course of conduct. Tenn. Code Ann. § 40-35-103(1)(B). Also, measures less

restrictive than confinement have recently been applied unsuccessfully to the defendant,

Tenn. Code Ann. § 40-35-103(1)(C), and it is apparent the defendant lacks the potential

for rehabilitation given her prior record and proclivity to commit a multitude of offenses

while on probation. Tenn. Code Ann. § 40-35-103(5).

       This court is of the opinion the trial court properly denied the defendant’s request

to be considered for a second alternative sentence for the foregoing reasons. Thus, the

judgment of the trial court is affirmed.




                                    ___________________________________________
                                           JOE B. JONES, PRESIDING JUDGE




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CONCUR:




______________________________________
        JOHN H. PEAY, JUDGE




______________________________________
     THOMAS T. WOODALL, JUDGE




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