        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                         JUNE SESSION, 1998                 FILED
                                                          July 9, 1998
STATE OF TENNESSEE,        )    C.C.A. NO. 02C01-9710-CR-00381
                           )                           Cecil Crowson, Jr.
      Appellee,            )                                Appellate C ourt Clerk
                           )
                           )    SHELBY COUNTY
VS.                        )
                           )    HON. JOHN P. COLTON, JR.
MICHAEL J. ADKINS,         )    JUDGE
                           )
      Appe llant.          )    (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

MICH AEL J . GAT LIN            JOHN KNOX WALKUP
P.O. Box 27331                  Attorney General and Reporter
Memphis, TN 38167-0331
                                JANIS L. TURNER
                                Assistant Attorney General
                                425 5th Avenu e North
                                Nashville, TN 37243

                                JOHN W. PIEROTTI
                                District Attorney General

                                JAMES M. LAMMEY
                                Assistant District Attorney General
                                Criminal Justice Complex, Ste. 301
                                201 Poplar Street
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Michael J. Adkins, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appella te Proce dure. He entered a plea of g uilty to

the offense o f voluntary m anslau ghter. The agreed sentence for this Class C

felony was three years, the minim um in the ran ge for a standard offender. The

manner of service of th e sente nce wa s left to the discretion of the trial judge. The

judge ordered that six months of the sentence be served in the local workhouse,

followed by six months of intensive probation, with the balance of the sentence

to be served on regular probation. The Defe ndan t appe als from th e trial jud ge’s

denial of fu ll probation . We affirm the ju dgme nt of the trial co urt.



       On the nig ht the vic tim was killed, the Defendant had been drinking beer

and smoking marijuana. He was in the company of several other individuals.

One of the other individuals had purchased what was supposedly LSD from the

victim. The LSD turned out to be either counterfeit or “bad” and the Defendant

and three o ther ind ividuals went to the victim’s residence to get a refund of the

purchase price. While there, one of the other individuals “pistol-whipped” the

victim and then shot him in the head and killed him. The pistol used in the killing

had originally belonged to the Defendant, but he testified that he was in the

process of selling it to the individual who did the shooting.



       All four individuals were indicted on a charg e of second degree m urder.

The Defendant who was the “trigger man” pleaded guilty to second degree

murder and received a fifteen year sentence. The Defendant and his other two



                                           -2-
codefendan ts pleaded guilty to voluntary manslaughter. The recommended

sentence for the two code fendants wh o pleaded g uilty to voluntary manslaughter

was six years. The recommended sentence for the defendant was three years.

The trial judge conducted a sentencing hearing during which the S tate

recommended that the Defe ndan t’s sentence be served on probation. The trial

judge declined to follow the State’s recommendation in full and instead ordered

that the Defendant serve six months of his sentence in the local workh ouse. It

is from the order of th e trial court denying full probation that the Defendant

appeals.



      When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial cour t are corre ct.

Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is ?conditioned upon

the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).



      In conducting a de novo review of a se ntenc e, this court must consider: (a)

the evidenc e, if any, rece ived at the tr ial and the sentencing hearing; (b) the

presentence report; (c) the principles of senten cing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the de fenda nt ma de on his own be half; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

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

                                        -3-
      If our review reflects that the trial court followed the statutory sentencing

procedure, that the trial court imposed a lawful sentence after having given due

conside ration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sen tence even if we would have

preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



      A defen dant w ho “is a n esp ecially mitigated or standard offender convicted

of a Class C, D or E felony is presumed to be a favorable candidate for

alternative sentencing options in the absence of evidence to the contrary.” Tenn.

Code Ann. § 40-3 5-102(6). Ou r sentencing law also provides that “convicted

felons com mitting the m ost se vere o ffense s, pos sess ing crim inal his tories

evincing a clear disregard for the laws and morals of society, and evincing failure

of past efforts at rehabilitation shall be given first priority regarding sentencing

involving incarceration.” Id. § 40-35-102(5). Thus, a defendant sentenced to

eight years or less who is not an offender for who m inc arcera tion is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not pro vide tha t all offenders who meet the

criteria are entitled to such relief; rather, it requires that sentencing issues be

determined by the facts and circumstances presented in each case. See State

v. Taylor, 744 S.W .2d 919 , 922 (T enn. C rim. App . 1987).

      Additionally, the principles of sentencing reflect that the sentence shou ld

be no greater than that deserved for the offense committed and should be the

least severe me asure necessary to achieve the purposes for which the sentence

is imposed. Tenn. Code Ann. § 40-35-103(3)-(4). The court should also consider

                                         -4-
the poten tial for rehabilitation or treatment of the defendant in determining the

senten ce alterna tive. Id. § 40-35 -103(5).



       Because the Defendant was a sta ndard offender convicted of a Class C

felony, he was presumed to be a favorable candidate for an alternative

sentencing option.     The trial judge gave the Def enda nt the b enefit o f this

presumption, sentencing him to split confinement. See id. § 40-35-104(c)(5). The

Defendant seeks the mo re favorab le alternative of total prob ation. See id. § 40-

35-104(c)(3). As we have stated, the Defendant has the burden of establishing

suitab ility for full probation, even tho ugh he is en titled to the statutory

presumption of alternative senten cing. See State v. Bingham, 910 S.W.2d 448,

455 (Tenn. Crim. App. 1995). There is no “bright line rule” for determining when

a defend ant is entitled to full proba tion. Id. at 456. A trial jud ge is vested with a

great deal of discretion on the issue of probatio n. Facto rs to be conside red are

whether probation will serve the ends of justice and the best interest of both the

public and the Defendant, the nature and circumstances of the crime, the

Defendant’s potential fo r rehab ilitation, w hethe r full prob ation w ould u nduly

deprec iate the seriousness of the offense, and w hether full probation w ould serve

the nee d to provid e an effec tive deterre nt. See id., at 456.



       The presentence report reflects that the Defendant was almost nineteen

years old at the time of the offense. At the time of sentencing he was single and

lived with his mother, for whom he provided some assistance and support. He

did not graduate from high school but had obtained his GED. His employment

record was good. He had no criminal record as an adult and no significant

juvenile record. H e reported that he began using alcohol at about the age of

                                          -5-
twelve and had also used marijuana, cocaine, and LSD. At the sentencing

hearing he tes tified tha t it had been over 2½ years since he had used any illegal

drugs. He stated that he had no intentions of killing the victim and did not know

that his codefe ndant w as going to do so. He stated that because of this incident

he had changed his life and had become a very religious person who was active

in his chu rch. He h ad sup port from mem bers of h is church .



       In assessing the Defendant’s sentence, the trial judge expressed his

concern over the nature and circumstances of the offense -- spec ifically, tha t this

killing was related to a d rug transaction. It is clear from the record that the

reason the defendants approached the victim was because they thought the

victim had sold them poor quality or counterfeit LSD. The court also noted that

a death was involved and that a firearm was used to commit the crime. The

judge also stated that he did not believe the Defendant showed true remorse for

what he had done. We again point out that the gun used to commit the killing

initially belonged to the Defendant, although he testified that the “trigger-man”

was bu ying it from h im and had ac tually poss essed it for two or thre e week s.



       Trial judge s are tra ditiona lly vested with broad discre tionary powe rs in

sentencing matters.      As we have stated, the Defendant has the burden of

establishing suitability for full probation, even though he is entitled to the statutory

presumption of alternative sentencing. Appellate courts should not place trial

judges in a judicial straight-jacket on sentencing matters, and we should be

reluctant to interfere with their traditional discretionary powers. Moten v. State,

559 S.W. 770, 773 (Tenn. 1977).        The trial court is in a much better position to

assess a defendant’s credibility, feelings of remorse, and potential for

                                          -6-
rehabilitation than an appellate court can determine from the record. From this

record, we cannot conclude that the trial judg e erred or abu sed h is discr etion in

ordering the Defe ndant to serve a p ortion of his sentence in confinement. The

judgment of the trial court is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE




CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE. G. RILEY, JUDGE




                                           -7-
