           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                               Assigned on Briefs August 21, 2001

              STATE OF TENNESSEE v. EVELYN ELISSA DUCKETT

                      Direct Appeal from the Circuit Court for Blount County
                            No. C-12171    D. Kelly Thomas, Jr., Judge



                                     No. E2000-02273-CCA-R3-CD
                                            October 9, 2001

The defendant was indicted for robbery and convicted of misdemeanor theft, for which she was
sentenced to eleven months and twenty-nine days, and payment of restitution, with the defendant to
serve thirty percent of the sentence. She timely appealed, arguing that the entire sentence should
have been probated. Based upon our review, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOHN
EVERETT WILLIAMS, J., joined.

Raymond Mack Garner, District Public Defender, and Stacey D. Nordquist, Assistant District Public
Defender, for the appellant, Evelyn Duckett.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                OPINION

       The defendant, Evelyn Elissa Duckett Melton,1 was convicted of misdemeanor theft and
sentenced to eleven months and twenty-nine days, with thirty percent of this sentence to be served
in confinement and the remainder probated. The defendant appealed, raising as the sole issue,
whether the entire sentence should have been probated.

         The victim, Charles H. Ritchey, who was seventy-five years old at the time of the incident,
testified that the defendant came to his house at about 9:15 p.m. on July 15, 1999. He was the owner
of a used car lot which was located next to his house. He said that the defendant had come to his car
lot to look at cars on three other occasions. He carried a pistol as he went to the door, but put it

       1
           The defendant married Bobby Melton in December 1999.
down when he recognized the defendant. She asked to use the restroom at his home as well as his
telephone. He declined to allow her to come into the house to use his restroom but brought his
telephone to the garage; she spoke on it for about three minutes.

        The defendant then asked the victim if she could have a soft drink, and he turned to go get
one for her. As he was going up the stairs, the defendant hit him in the back and grabbed his right
ankle, causing him to fall face-first on the floor. The defendant got on top of him and took his wallet
from his back pocket. As she ran to her car and left, the victim telephoned 911 for assistance.

       The victim testified that his wallet contained “a twenty dollar bill and two fives and some
ones” and four credit cards. Even though he reported the credit cards as stolen, he still received
statements for unauthorized charges at Wal-Mart for a television, Sears for a vacuum cleaner and
attachments, and Lowe’s Hardware for some air tools and attachments.

        The defendant testified that she had been to the victim’s home on other occasions and that,
on one of these visits, he had offered to pay her for sex, and to pay her $50 if she would return for
the same purpose. She said that she had returned to collect this money on July 15, 1999, but the
victim told her that he did not have it. According to the defendant, the victim fell as he was going
up the stairs, and she never touched him. The defendant admitted taking the victim’s wallet but
denied using any of his credit cards. She said that she took $35 to $40 out of the victim’s wallet and
then threw the wallet down as she was leaving the victim’s driveway.

         Officer Doug Moore, of the Blount County Sheriff’s Department, testified that he had
interviewed the defendant two days after the incident. The videotape of the interview was played
for the jury. Although the sound quality was poor, it appeared the defendant gave Officer Moore the
same version of events that she testified to at trial.

       Following the presentation of this proof, the defendant was convicted of the lesser-included
offense of misdemeanor theft and sentenced to eleven months and twenty-nine days, with the
defendant to serve thirty percent of the sentence and the remainder on probation. Additionally, the
defendant was ordered to pay $330.57 in restitution to the victim and submit to drug and alcohol
screens, as ordered by her probation officer.

       At the sentencing hearing, the victim reiterated his trial testimony, denying the defendant’s
claims at trial that he had sought her for sexual favors and that he owed her money for that purpose.

        The defendant stated that her testimony at trial had been truthful. She again admitted taking
the victim’s wallet but denied using his credit cards. She said that she had had an alcohol problem
in the past and that she was disabled because she suffered from major depression, osteoarthritis,
asthma, and scoliosis.

      On November 22, 1999, the defendant had entered pleas of guilty in the Knox County
General Sessions Court to several offenses. She pled guilty to having passed worthless checks on


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February 8, 1999, for $28.48; February 11, 1999, for $37.62; and February 21, 1999, for $51.74,
receiving concurrent sentences in each case of eleven months and twenty-nine days at seventy-five
percent, with each sentence suspended, and the defendant ordered to pay restitution. Additionally,
she pled guilty the same day to criminal trespass after, according to the affidavit of complaint,
propositioning a truck driver for sex, and was sentenced to thirty days, with the sentence probated.
This offense occurred approximately two weeks after she had been released on bond following her
arrest for the instant offense. Finally, she pled guilty on March 6, 2000, to criminal impersonation,
committed on November 28, 1999, and was sentenced to six months confinement, which was
suspended.

        Additionally, the defendant told the trial court that, as of the date of the sentencing hearing,
she had a burglary case pending in Knox County, which was set for trial in February 2001. Also, she
admitted to a number of misdemeanor arrests over a period of, at least, several years. However, the
record on appeal, which does not contain a presentence report, is insufficient for us to make a precise
determination as to her record of convictions.

       At the sentencing hearing, the defendant’s mother-in-law, Inez Melton, testified that there
was “a big difference in [the defendant’s] life.” She stated that the defendant stayed at home more
and was “not out running the road and getting into trouble.” She further said that the defendant had
never been violent with her or her husband.

        At the sentencing hearing, the trial court sentenced the defendant as follows:

                        Based upon the verdict of the Jury, it’s the judgment of the
                Court that you are guilty of theft. The sentence imposed is 11
                months, 29 days. The place of confinement is the Blount County Jail.
                Your release eligibility is 30 percent, which means you will serve 30
                percent of the sentence and then be released to serve the balance of
                that sentence on probation.

                      A condition of your probation will be paying restitution of
                $330.57 and the court costs.

                        You can report to serve your jail sentence on Friday. That
                will give you an opportunity to decide whether you want to appeal the
                verdict or the sentence or not. And if you wish to appeal, then we can
                address the question of bond.

                        In setting the sentence as I did, I considered your very long
                criminal history. You have very many, many misdemeanor
                convictions and you have what led to three misdemeanor convictions
                after committing this offense. I think I’m giving you a lot of credit
                for what your mother-in-law testified to, by not ordering you to serve


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               the whole 11 months and 29 days. I’m giving you the benefit of
               serving 30 percent of that sentence in jail and the rest of it on
               probation.

                       The Jury did not find you guilty of robbery. But the Jury did
               find you guilty of theft beyond a reasonable doubt. And there’s – the
               circumstances that led to your being there to take the wallet from Mr.
               Ritchie [sic] were very suspect. And even if you took everything that
               you say to be true, you still went down there to get money from him.
               And based on your testimony and about what you say that he said
               when you went there, he wasn’t willing to give you money until you
               did some more things, even by your story. And you didn’t, you just
               took the money from him. And by Mr. Ritchie’s [sic] story, went
               down there to take his money even though the Jury wasn’t convinced
               that you used violence to do it, you still went down there and took the
               man’s money.

                       Your chances of rehabilitation, I think appear to be much
               improved from what it was before. I’m going to require that during
               the time that you’re on probation that you follow the probation
               officer’s instructions about any drug or alcohol treatment that’s
               needed. You are at a point where you can serve the bulk of this
               sentence on probation and continue to improve your life. But just
               because you’re doing better doesn’t mean you don’t have to pay up
               for what you’ve already done. And that’s basically what this is.

                                            ANALYSIS

                                        Standard of Review

        When an accused challenges the length and manner of service of a sentence, 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. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d
163, 166 (Tenn. Crim. App. 1993). However, this court is required to give great weight to the trial
court’s determination of controverted facts as the trial court’s determination of these facts is
predicated upon the witnesses’ demeanor and appearance when testifying.



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        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, (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 or enhancement factors, (g) any statements made by
the accused in his 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. 1987).

        The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
imposed by the trial court is erroneous.

                                             Probation

       The sole issue on appeal is whether the trial court erred in not granting full probation. The
defendant contends that her entire sentence should have been probated.

          Tennessee Code Annotated Section 40-35-303(a) states that a defendant shall be eligible
for probation, subject to certain exceptions, if the sentence imposed upon the defendant is of eight
years or less. Even if eligible, however, the defendant is not automatically entitled to probation as
a matter of law. See Tenn. Code Ann. § 40-35-303(b). The burden is upon the defendant to show
that he is a suitable candidate for probation. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim.
App. 1997); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann.
§ 40-35-303(b). In order to meet this burden, the defendant “must demonstrate that probation will
‘subserve the ends of justice and the best interest of both the public and the defendant.’” State v.
Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250,
259 (Tenn. Crim. App. 1990)). The statutory presumption favoring an alternative sentence is limited
to Class C, D, and E felonies. See Tenn. Code. Ann. § 40-35-102(6).

        There is no bright line rule for determining when a defendant should be granted probation.
Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a case-by-case
analysis. Id. Factors to be considered include the circumstances surrounding the offense, the
defendant’s criminal record, the defendant’s social history and present condition, the need for
deterrence, and the best interest of the defendant and the public. Goode, 956 S.W.2d at 527.
Another appropriate factor for a trial court to consider in determining whether to grant probation is
a defendant’s credibility or lack thereof, as this reflects on the defendant’s potential for
rehabilitation. Id. Also relevant is whether a sentence of probation would unduly depreciate the
seriousness of the offense. See State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997).

       Misdemeanor sentencing guidelines are codified at Tennessee Code Annotated Section
40-35-302(d) which provides, in pertinent part:



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               In imposing a misdemeanor sentence, the court shall fix a percentage
               of the sentence which the defendant shall serve. . . . In determining
               the percentage of the sentence to be served in actual confinement, the
               court shall consider the purposes of this chapter, the principles of
               sentencing, and the enhancement and mitigating factors set forth
               herein, and shall not impose such percentages arbitrarily.

       Trial courts have more flexibility in misdemeanor sentencing than in felony sentencing. State
v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999), perm. to appeal denied (Tenn. 2000).
Further, in sentencing a misdemeanant, the court need not make explicit findings of enhancement
and mitigating factors as in a felony case. State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim. App.),
perm. to appeal denied (Tenn. 1999).

         Our review of misdemeanor sentencing, unlike that for a felony, is to determine whether the
trial court considered the purposes of the Criminal Sentencing Reform Act, the sentencing principles,
and the enhancement and mitigating factors, and did not impose an arbitrary sentence. Here, the trial
judge had the benefit of presiding over the trial and observing the defendant testify at both the trial
and the sentencing hearing, as well as hearing from the other witnesses.

        Since the record on appeal does not include a presentence report, we cannot determine the
number of previous arrests for the defendant, or over what period of time they extended. She was
asked if she had been arrested nineteen times in Blount County since 1994, but her answer was
unclear, although she did appear to admit to a DUI arrest and others for public intoxication.
Apparently, the DUI arrest resulted in her being convicted and placed on probation. Additionally,
she had at least five misdemeanor convictions since being released on bond for the instant offense,
three of which were committed after the incident which resulted in that charge.

         In determining that the defendant should serve thirty percent of her sentence, the trial court
observed that the defendant’s “chances of rehabilitation . . . appear to be much improved from what
it was before.” Based upon this statement, and the testimony of Inez Melton, the defendant’s
mother-in-law, the defendant argues that she “has good potential for rehabilitation.” The defendant
had a lengthy arrest history, her most recent arrest being on November 28, 1999. We conclude, as
did the trial court, that the defendant, not having been arrested during the ten months prior to the
sentencing hearing, appeared to have “much improved” rehabilitative chances. However, the trial
court’s rating of “improved” cannot be equated to “good.” Additionally, the lack of arrests for
crimes of violence cannot erase the defendant’s substantial record over a long period. Considering
all of these factors, we cannot conclude that the trial court, after observing the defendant and hearing
testimony from all of the witnesses, abused its discretion in concluding that the defendant’s
rehabilitative prospects would be enhanced by serving thirty percent of her sentence in confinement.
Accordingly, we affirm the judgment of the trial court.

                                       CONCLUSION



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       It is clear from the trial court’s comments that consideration was given to the appropriate
principles, and that the sentence was not arbitrary. Accordingly, we affirm the judgment of the trial
court.



                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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