             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE

                                 APRIL 1998 SESSION
                                                         FILED
                                                            June 25, 1998

                                                        Cecil W. Crowson
                                        §              Appellate Court Clerk
STATE OF TENNESSEE,
          APPELLANT
                                        §
VS.                                         C.C.A. No. 01C01-9707-CR-00295
                                        §   DAVIDSON COUNTY
                                            HONORABLE SETH NORMAN
DAVID RAY McCORMICK                     §
         APPELLEE                           (SENTENCING)




FOR THE APPELLANT                           FOR THE APPELLEE

John Knox Walkup                            Jeffrey A. Devasher
Attorney General and Reporter               Assistant Public Defender
425 Fifth A venue, N orth                   (On Ap peal)
Nashville, TN 37243

Karen M. Yacuzzo                            Stephen G. Young
Assistant Attorney General                        Assistant Public Defender
425 Fifth A venue, N orth                   (At Hearing)
Nashville, TN 378243                        1202 Stahlman Bldg.
                                            Nashville, TN 37201
Jim Milam
Assistant District Attorney General
Washington Square, Suite 500
222 Sec ond Av enue N orth
Nashville, TN 37201-1649




OPINION FILED: _______________________


REVERSED AND REMANDED

L. T. LAFFERTY, SPECIAL JUDGE
                                    OPINION

      The defendant, David McCormick, pled guilty to aggravated assault.

The trial court, after a sentencing hearing, sentenced the defendant to

confinement in the community corrections for six years. As conditions of

this placement in community corrections, the trial court required the

defendant to pay for electronic monitoring; ordered house arrest except for

employment; and ordered the defendant to pay fifty percent of his net

income for restitution and costs.

      In this appeal of right, the State contends that the trial court erred by

sentencing the defendant to the community corrections program for a crime

of violence. The State, also, contends the defendant is not entitled to

probation and, thus, the defendant should serve his sentence in confinement.

After a review of the record in this cause, briefs of the parties, and

applicable law, the trial court’s judgment is reversed and remanded to the

trial court for re-sentencing.

                                 Background

      In May, 1995, the Davidson County grand jury accused the defendant

of criminal attempt, to-wit: murder first degree involving the shooting of

one Ricky Stanfill in December, 1994. On March 6, 1997, the defendant

entered a plea of guilty to aggravated assault, agreeing to a Range I six year

sentence, and requested a hearing for alternative sentencing. A transcript

of the guilty plea entry was not included in the record. The trial court held a

bifurcated hearing on April 9 & 16, 1997, to determine the merits of the

defendant’s application for alternative sentencing.




                                      2
                            Sentencing Hearing

      Although present at the sentencing hearing, neither the victim nor

defendant testified.

      As part of its evidence, the State offered the testimony of Mr. Jim

Dallas Crouch. Mr. Crouch, a drummer in a band in a nightclub in

Davidson County, had stepped outside for a cigarette during a break. The

victim, Stanfill, and the defendant were standing outside in the parking lot.

Prior to Crouch’s going outside, he had heard some words being exchanged

between the victim and defendant and knew there was a “problem.” Crouch

observed the defendant shoot the victim. Crouch, a former Navy corpsman,

applied pressure to a wound in the victim’s abdomen, and took him inside

the bar to wait for an ambulance. Crouch never saw a gun or weapon in the

victim’s possession. The State also submitted a letter from the victim’s

doctors concerning his wound, two certified records of convictions of the

defendant, and a pre-sentence report.

       A summary of the defendant’s evidence for alternative sentencing

established that the defendant is employed as an operator in a steel

processing plant. His employer found the defendant reliable and

dependable and stated that the defendant would likely be promoted. The

employer has prior experience with persons on probation and agreed to

work with the court and the defendant if he were placed on community

corrections or probation. The defendant’s mother testified her son assists

her in paying her rent and utilities, sees to her medical problems and

believes he has straightened out his drinking. The mother admitted her son




                                     3
had a history of drinking and assaults and being on probation on several

occasions, but was unaware that any periods of probation were revoked.

Also, she was unaware of her son using marijuana. The defendant’s sister

testified in support of her brother. She has talked to the defendant about the

offense; he is very sorry about the shooting and has turned his drinking

around. She confirmed that the defendant assisted his mother in her debts.

Apparently while on bail for this offense, the defendant had been arrested

and convicted for the possession of marijuana, but the sister and defendant

did not tell their mother due to her bad health. The sister believes the

defendant should be placed on community corrections or probation.

      Based on this evidence the trial court placed the defendant on

community corrections supervision. Thus leading to this appeal.

                    Community Corrections/Probation
                        Alternative Sentences

      First, we will address the placement of the defendant on community

corrections in lieu of probation. Since the defendant entered a plea of guilty

to aggravated assault, a Class C felony, the defendant is presumed to be a

favorable candidate for probation or an alternative sentence, in the absence

of evidence to the contrary. Tenn. Code Ann.

§ 40-35-102 (6). The defendant has the burden of establishing that he is a

favorable candidate for alternative relief. Tenn. Code Ann. § 40-35-303(b).

Even when the State complains of the sentence of a defendant, we must

conduct a de novo review with a presumption of correctness. Tenn. Code

Ann. § 40-35-401(d). Therefore, the burden of showing the sentence is

improper is upon the State. The presumption that determinations made by




                                     4
the trial court are correct 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 (Tenn.

1991); State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App. 1994).

      If appellate review reflects that the trial court properly considered all

relevant facts and its finding of facts are adequately supported by the

record, this Court must affirm the sentence, “even if we would have

preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.

Crim. App. 1991). In arriving at the proper determination of an appropriate

sentence, the trial court must consider (1) the evidence, if any, received at

the plea of guilty; (2) the pre-sentence report; (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 enhancement and mitigating factors;

(6) any statements the defendant wishes to make in the defendant’s behalf

about the sentencing; and (7) the potential for rehabilitation or treatment.

Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-35-

103(5) (1990); State v. Holland, 860 S.W.2d 53 (Tenn. Crim. App. 1993).

      In it’s ruling the Court stated:

                  I’m going to put Mr. McCormick on work release--I
      mean, on six years probation. I’m going to require him to pay for
      electronic monitoring. He will not be allowed out of his house for
      any purpose, whatsoever, other than to go to work.

                   He will pay fifty percent of the net income that he
      derives from his employment towards any restitution and any cost
      and fines that have evolved out of this case. He will pay for it.




                                     5
                   He’ll be placed on Community Corrections for a period
      of six years. If he steps out of line one inch, I will double that
      sentence. That’s the ruling of the Court.

                   He is to have electronic monitoring before the sun sets
      today, and he not to go out of that house--except to go to work.

      The State contends, since the trial court did not make any findings

regarding relevant sentencing considerations, this Court should conduct a de

novo review without the presumption of correctness. Naturally, the

defendant contends the trial court was correct in its judgment. We believe

the State is correct and will conduct a de novo review without the

presumption.

      The State contends, and the defendant concedes, that the defendant,

having been convicted of aggravated assault in this case, is ordinarily

ineligible for sentencing under the Community Corrections Act. Tenn.

Code Ann. § 40-36-106(a). Under section (a), those convicted of violent

felony offenses and those convicted of felony offenses involving crimes

against the person are normally statutorily excluded from community

corrections sentences. State v. Braden, 867 S.W.2d 750 (Tenn. Crim. App.

1993); State v. Birge, 792 S.W.2d 723 (Tenn. Crim. App. 1990). Since

violent offenders are not statutorily eligible for community corrections,

section (c) of Tenn. Code Ann. § 40-36-106, however, provides as follows:

                   Felony offenders not otherwise eligible under
      subsection (a), and who would be usually considered unfit for
      probation due to histories of chronic alcohol, drug abuse, or
      mental health problems, but whose special needs are treatable
      and could be served best in the community rather that in a
      correctional institution, may be considered eligible for
      punishment in the community under the provisions of this
      chapter.




                                    6
      The State contends the trial court failed to find any special needs

applicable to the defendant in its ruling and thus is ineligible for community

corrections. Of course, the defendant maintains the trial court did find

special needs based on the defendant’s past abuse of alcohol. A trial court,

in its determination for placing a defendant in the community corrections

program under section (c), must consider (1) the offender has a history of

chronic alcohol, drug abuse, or mental health problems; (2) these factors

were reasonably related to and contributed to the offender’s criminal

conduct; (3) the identifiable special need (or needs) are treatable; and, (4)

the treatment of the special need could be served best in the community

rather than in a correctional institution. State v. Boston, 938 S.W.2d 435

(Tenn. Crim. App. 1996).

      Since this Court is conducting a de novo review of the defendant’s

sentence, we will be guided by the same criteria as the trial court. As to

factor (1) the defendant through his mother and sister offer evidence of a

history of alcohol abuse. Between November, 1983, and January, 1991, the

defendant has three convictions for driving under the influence of alcohol.

Since this present offense occurred at a bar, it can be reasonably inferred

that alcohol was involved. Also, the defendant has attended AA meetings,

which have evidently been unsuccessful. Although the pre-sentence report

indicates that the defendant quit using marijuana in 1982, he has two

convictions for drug possession since 1983. It is obvious that at the

sentencing hearing, the trial court was concerned about the defendant’s

history of alcohol abuse and possibly, inferentially, that is the reason why




                                     7
the trial court placed the defendant on community corrections. However,

the defendant failed to establish by a preponderance of the evidence just as

to how this special need, abuse of alcohol, could be effectively treated in the

community. Based on the defendant’s history of criminal behavior as

outlined in the pre-sentence report, the defendant’s history of criminal

convictions and behavior, to-wit: four assaults and one weapon offense, the

defendant has failed to establish his placement in the community corrections

program was proper. The trial court was in error for this placement.

      Second, now we will consider the question of probation. The State

argues that the defendant, based on his past criminal convictions and

behavior, is not entitled to straight probation, but at least one year

confinement and then, if applicable, probation. The defendant contends the

State did not present evidence that rebuts the statutory presumption that the

defendant is entitled to probation.

      In State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994),

this Court examined the standards governing a trial court’s determination of

whether continuous confinement is necessary:

                   Our Sentencing Act reflects the individualized
      nature of alternative sentencing. When imposing a sentence of
      total confinement, the trial court should base its decision on the
      considerations listed in Tenn. Code Ann. § 40-35-103(1):

                    (A) Confinement is necessary to protect society by
      restraining a defendant who has a long history of criminal
      conduct;

                   (B) Confinement is necessary to avoid
      depreciating the seriousness of the offense or confinement is
      particularly




                                      8
      suited to provide an effective deterrence to others likely to
      commit similar offenses; or

                  (C) Measures less restrictive than confinement
      have frequently or recently been applied unsuccessfully to the
      defendant.


      From our analysis of the record the defendant would not be entitled to

straight probation. However, the trial court, after observing the witnesses

and the defendant and after reviewing the reports, in its determination to

grant community corrections saw or felt something at this hearing.

Therefore, this Court reverses and remands this case to the trial court to

determine an appropriate sentence, including split confinement and any

other reasonable condition of probation, if any.



                                         _________________________
                                         L. T. Lafferty, Special Judge


CONCUR:

_________________________
Gary R. Wade, Presiding Judge

_________________________
Thomas T. Woodall, Judge




                                     9
