            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE                FILED
                                FEBRUARY 1997 SESSION
                                                                  May 30, 1997

                                                            Cecil W. Crowson
STATE OF TENNESSEE,                 *                      Appellate Court Clerk
                                          C.C.A. # 01C01-9604-CC-00139

             Appellee,              *     GILES COUNTY

VS.                                 *     Hon. Jim T. Hamilton, Judge

RICKEY COLEMAN,                     *      (theft (3 counts); attempted forgery
                                           (3 counts); forgery (16 counts); passing
      Appellant.            *       worthless checks (16 counts); assault
                                           (1 count))
                                    *


For Appellant:                            For Appellee:

Shara Flacy                               Charles W. Burson
District Public Defender                  Attorney General & Reporter

John R. Wingo                             Karen M. Yacuzzo
Assistant Public Defender                 Assistant Attorney General
128 North Second Street                   Criminal Justice Division
P.O. Box 1208                             450 James Robertson Parkway
Pulaski, TN 38478                         Nashville, TN 37243-0493

                                          Mike Bottoms
                                          District Attorney General
                                          252 N. Military Avenue
                                          Lawrenceburg, TN 38464

                                          Richard Dunavant
                                          Asst. District Attorney General
                                          10 Public Square
                                          P.O. Box 1619
                                          Columbia, TN 38401


OPINION FILED: __________________



AFFIRMED



GARY R. WADE, JUDGE
                                                   OPINION

                  The defendant, Rickey Coleman,1 pled nolo contendere to 16 counts

of forgery, 16 counts of passing worthless checks, 3 counts of theft, 3 counts of

attempted forgery, and 1 count of assault. The plea agreement with the state

provided for an effective eight-year sentence with the trial court to determine the

manner of service.



                  In this appeal of right, the defendant claims that the trial court erred by

denying any form of alternative sentencing. We find no error and affirm the

judgment of the trial court.



                  The record contains little information about the offenses. All appear to

have been committed in July, August, and October of 1994. The indictments

suggest that two of the offenses were for theft of checks for less than $500. The

third offense is based on a theft of over $1000 in property from Mary Simington.

The assault conviction was the result of the defendant's enticing a victim to drink a

cup of bleach over ice. The remaining offenses involved the defendant's drawing

checks on the accounts of others.



                  The presentence report shows that the defendant had been granted

probation on earlier offenses. He was convicted of aggravated assault in 1992 and

received an eleven months, twenty-nine days sentence on probation. In March of

1994, only months before these offenses, the defendant was convicted of theft and

sentenced to eleven months, twenty-nine days on probation. The presentence

report also indicates that after the defendant was arrested on August 10, 1994, and



         1
          W hile so me plead ings refe r to the defe nda nt as "Rick y Orla ndo Cole ma n," it is th e polic y of
this court to refer to the defend ant as his nam e appe ars on th e indictm ent.

                                                        2
released from custody, he wrote five additional fraudulent checks on August 12,

1994.2



                 The defendant, twenty years of age at the time of sentencing, has

completed eleventh grade. His work history is limited. Three of his employers

reported poor performance or absenteeism.



                 When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court 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

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



                 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 defendant's

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

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




         2
          On November 8, 1994, the defendant pled guilty to misdemeanor theft. The report shows
that on Se ptem ber 26, 1 995, only we eks be fore sen tencing in th is case, th e defen dant ente red guilty
pleas to theft of property, attempted theft of property, and false reports. On April 11, 1995, he pled
guilty to misdemeanor theft. On February 14, 1995, he pled guilty to criminal trespassing. Because
we cannot determine when the crimes were committed, we have not considered them in our review.

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              Among the factors applicable to the defendant's application for

probation are the circumstances of the offense, the defendant's criminal record,

social history, and present condition, and the deterrent effect upon and best interest

of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-

102(6). With certain statutory exceptions, none of which apply here, probation must

be automatically considered by the trial court if the sentence imposed is eight years

or less. Tenn. Code Ann. § 40-35-303(a), (b).



              The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103. The Community Corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn.1990). That a defendant meets

the minimum requirements of the Community Corrections Act of 1985, however,

does not mean that he is entitled to be sentenced under the act as a matter of law

or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987). The following

offenders are eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;



                                           4
              (3) Persons who are convicted of nonviolent felony
              offenses;

              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



              Alternative sentencing issues must be determined by the facts and

circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.

1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at

922.



              In denying alternative sentencing, the trial court observed the

defendant's "past record [was] horrendous," and that "the number of criminal

offenses that are represented by these indictments" was unusually large. Thus, due

regard was given to the defendant's prior record and the seriousness of his

offenses. In our view, the defendant has failed to overcome the presumptive

correctness of the ruling in the trial court. See Tenn. Code Ann. § 40-35-401(d).

His prior record fully warranted the denial of an alternate sentence. See Tenn.

Code Ann. § 40-35-103(1)(A).



              Due in great measure to the criminal history of the defendant and his

failure to rehabilitate despite previous terms of probation, we yield to the

discretionary authority of the trial court. The defendant has previously received the


                                           5
largesse of the law by being given post-plea diversion and probation. In spite of

this, the defendant has continued to violate the law. "Measures less restrictive than

confinement have ... recently been applied unsuccessfully to the defendant." Tenn.

Code Ann. § 40-35-103(1)(C). His behavior indicates a blatant disregard for the

laws of our society. A period of confinement is necessary to protect society from the

defendant's propensity to violate the law.



             Accordingly, the judgment of the trial court is affirmed.



                                  ________________________________________
                                  Gary R. Wade, Judge

CONCUR:



___________________________
David G. Hayes, Judge



___________________________
Curwood Witt, Judge




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