  IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE                                        FILED
                   NOVEMBER SESSIONS, 1999                                 December 1, 1999

                                                                          Cecil CROWS ON, Jr.
                                                                          Appellate Court Clerk
STATE OF TENNESSEE                 )
                                   )
       APPELLEE                    )
                                   )
VS.                                )       C.C.A. NO. 03C01-9908-CR-00293
                                   )       CAMPBELL CO. CRIMINAL NO. 9653
MACARTHUR COFFEY                   )       HON. E. SHAYNE SEXTON, JUDGE
                                   )
       APPELLANT                   )


FOR THE APPELLANT:                         FOR THE APPELLEE:

JULIE A. RICE                              PAUL G. SUMMERS
P.O. Box 426                               Attorney General & Reporter
Knoxville, Tennessee 37901
                                           CLINTON J. MORGAN
CHARLES HERMAN                             425 Fifth Avenue North
P.O. Box 337                               Nashville, Tennessee 37243
Jacksboro, Tennessee 37757
                                           MIKE RIPLEY
                                           Assistant District Attorney
                                           P.O. Box 326
                                           Jacksboro, Tennessee 37757




OPINION FILED:____________________

AFFIRMED:
JOE H. WALKER, Sp. JUDGE




                                       OPINION

       Appellant appeals the judgment of the trial court with regard to the manner of

service of sentence.



       Appellant entered a plea of guilty to three counts of burglary of a vehicle, and one
count of theft of over $1,000.00, with agreed sentences of two years as a Range I offender
for each of the three auto-burglary charges, and four years as a Range I offender for the D

felony of theft, with the further agreement that the sentences would run concurrently. The

trial court determined the manner of service of his sentences.
         The trial court ordered incarceration, and appellant appeals, assigning as error

whether the trial court erred by failing to sentence appellant to an alternate sentence of

split confinement.


         A review of the record reveals that the defendant was granted bond pending appeal

to this court. That while on bond he was arrested and charged on May 26, 1999, with a
felony offense of burglary, and misdemeanor theft. On July 15, 1999, appellant was again

arrested and charged with the offenses of domestic violence, resisting arrest, and evading

arrest. The trial court revoked bond pending appeal.



         The defendant entered a plea of guilty to the charges in this case on June 19, 1998.

He was arrested June 29, 1998, and charged with two counts of assault. He was arrested

June 30, 1998, and charged with cultivating marijuana on his premises, and domestic

violence by assault.

         At the sentencing hearing the court heard testimony from a deputy sheriff about the

charges on which appellant was accused after the entry of the plea. The court also heard

testimony from the officer that prepared the presentence report, and the report was

submitted by agreement.

         The report reveals that appellant has other misdemeanor convictions in 1995, 1993,

and 1990. It showed that appellant was unemployed, currently used alcohol, and used

marijuana within four months.

         The burden of establishing suitability for probation rests with the person seeking

probation. T.C.A. 40-35-303(b). The testimony heard by the trial court did not show any

reason for appellant to receive probation. Appellant did not offer any proof. The trial

court made its decision on the proof presented by the state and the pre-sentence report. In

State v. Galloway, 696 S.W.2d 364 (Tenn.Crim.App. 1985), the court found that inasmuch

as the defendant had failed to testify or offer any proof, he failed to carry his burden of

proving his worthiness for probation. See, State v. Bell, 832 S.W.2d 583 (Tenn.Crim.App.

1991).

         When considering the issue of probation, the trial court as well as this Court

considers the nature and circumstances of the offense or offenses, the defendant’s criminal

record, the defendant’s social history, the defendant’s present mental and physical
condition, the deterrent effect upon other criminal activity, and the likelihood that
probation will serve both the public and the defendant’s best interests. State v. Biggs, 769

S.W.2d 506 (Tenn.Crim.App. 1988); T.C.A. 40-35-303.



       The trial court stated that appellant was not suitable for probation, finding that the

previous history of appellant indicated that he could not abide by the terms of probation.

The conduct of appellant since the guilty plea was entered further indicated his inability to
abide by probation. The trial court further found that he was not suitable for community

corrections, and determined his sentence should be served with the Department of

Corrections.
       This court finds that the record on appeal is sufficient to determine that the trial

court did not err in sentencing the defendant to prison rather than probation or

community corrections. A felon’s rehabilitation potential and the risk of repeating

criminal conduct are fundamental in determining whether he is suited for alternate

sentencing. T.C.A. 40-35-103(5). The conduct of appellant both before entry of his guilty

plea and after entry of his guilty plea demonstrated poor potential for rehabilitation, which

is sufficient reason to justify a term of incarceration rather than probation or alternative

sentencing. State v. Zeolia, 928 S.W.2d 457 (Tenn.Crim.App. 1996).

       This court can not say that the trial court abused it’s discretion in denying appellant

probation, or alternate sentencing.




       The judgment of the trial court is affirmed.

                                                          _____________________________
                                                          JOE H. WALKER, Sp. JUDGE



CONCUR:

________________________
DAVID G. HAYES, JUDGE

________________________
ALAN E. GLENN, JUDGE
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT KNOXVILLE

                               NOVEMBER SESSIONS, 1999

STATE OF TENNESSEE                  )
                                    )
       APPELLEE                     )
                                    )
VS.                                 )      C.C.A. NO. 03C01-9908-CR-00293
                                    )      CAMPBELL CO. CRIMINAL NO. 9653
MACARTHUR COFFEY                    )      HON. E. SHAYNE SEXTON, JUDGE
                                    )
       APPELLANT                    )




                                         JUDGMENT

       Came the appellant, Macarthur Coffey by counsel, and the state, by the Attorney
General, and this case was heard on the record on appeal from the Criminal Court of

Campbell County; and upon consideration thereof, this Court is of the opinion that there is

no reversible error in the judgment of the trial court.



       Our opinion is hereby incorporated in this judgment as if set out verbatim.
       It is, therefore, ordered and adjudged by this Court that the judgment of the trial
court is AFFIRMED, and the case is remanded to the Criminal Court of Campbell County

for execution of the judgment of that court and for collection of costs accrued below.



       It appears that appellant is indigent. Costs of appeal will be paid by the State of

Tennessee.



                                                  PER CURIAM


                                                  DAVID G. HAYES, JUDGE
                                                  ALAN E. GLENN, JUDGE
                                                  JOE H. WALKER, III, Sp. JUDGE
