         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs May 15, 2002

                    STATE OF TENNESSEE v. RONNIE DANIEL

                   Direct Appeal from the Circuit Court for Wayne County
                            No. 10738     Stella Hargrove, Judge

                                         Filed July 1, 2002

                                  No. M2001-01217-CCA-R3-CD


On March 6, 1997, the defendant pled guilty to a two-count indictment for passing worthless checks
in an amount over $10,000, a Class C felony, and in an amount over $1,000, a Class D felony. He
was granted judicial diversion and placed on probation. The trial court subsequently revoked the
defendant's diversion and sentenced him to concurrent sentences of four years and six months for
the Class C felony and two years for the Class D felony, all suspended except seven months service
in the county jail. In this appeal, the defendant contends he should have received full probation or
community corrections upon being revoked from judicial diversion. We disagree and affirm the
judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Robert D. Massey, Pulaski, Tennessee, for the appellant, Ronnie Daniel.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Mike Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

         The technical record before this court is exceedingly sparse. Omitted from the technical
record are the subject indictment and order or pleading placing the defendant on judicial diversion.
Although two prior revocation warrants were issued in April 1997 and July 1998, it is not totally
clear as to what, if anything, occurred relative to the dispositions of these warrants. No disposition
is reflected in the technical record. Nevertheless, we are able to ascertain sufficient information from
the revocation hearing to enable us to perform an appellate review. Therefore, we will address the
sentencing issue on its merits.
       On March 6, 1997, the defendant pled guilty to two worthless check counts, one of which
was a Class C felony and the other a Class D felony. He was granted judicial diversion and placed
on probation. See Tenn. Code Ann. § 40-35-313(a)(1)(A).

        He then pled guilty on April 10, 1997, to simple possession of marijuana and possession of
drug paraphernalia and received concurrent probationary sentences of 11 months and 29 days for
each offense. The defendant committed these offenses prior to being placed on judicial diversion
in the instant cases.

        On the same date, April 10, 1997, a revocation warrant was issued alleging the defendant
tested positive for marijuana on that date. The affidavit of the probation officer reflects that the
defendant admitted to using marijuana. No disposition of that warrant is reflected in the record.

        On November 20, 1997, the defendant pled guilty to two counts of Class E felonious sales
of marijuana and received sentences of two years probation to run concurrently with each other and
his prior sentences. The defendant committed these offenses prior to being placed on judicial
diversion.

         On July 29, 1998, a second petition to revoke judicial diversion was filed, alleging the
defendant was arrested on July 26, 1998, for DUI, violation of implied consent, reckless
endangerment, simple possession of marijuana, and simple possession of cocaine. There is no
indication of this petition’s disposition in the technical record. The record does reflect that the
defendant was convicted of the underlying DUI and simple possession of marijuana on December
1, 1998, received an effective sentence of 11 months and 29 days, to serve 30 days, and was fined
a total of $600.

       On May 23, 2000, the defendant was arrested and charged with DUI, possession of drug
paraphernalia, possession of a schedule VI substance, and possession of a schedule IV substance.
The third revocation warrant was issued on June 12, 2000, based upon these charges. These
underlying charges were pending at the time of the subject sentencing hearing.

         The trial court revoked judicial diversion by order entered on March 8, 2001. The revocation
itself is not in dispute. A sentencing hearing was conducted on April 24, 2001. At the sentencing
hearing, the state introduced the testimony of the presentence report officer, the presentence report,
and various documents which established the matters set forth above. The defendant did not testify
but did introduce several letters from others in support of the defendant.


                                          SENTENCING

       The defendant does not challenge the length of his effective four and one-half year sentence,
to serve seven months with the balance on probation; rather, he challenges the denial of full
probation and community corrections.

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A. Procedure Upon Revocation of Judicial Diversion

       Upon finding a violation of probation by a defendant on judicial diversion, the trial court may
revoke judicial diversion and should, and here did, proceed to sentence the defendant pursuant to the
standard provisions of the Sentencing Act. State v. Johnson, 15 S.W.3d 515, 519 (Tenn. Crim. App.
1999). As stated, the only issue in this appeal is whether the trial court erred in denying full
probation or community corrections.

B. Standard of Review

       A defendant who challenges his or her sentence has the burden of proving the sentence
imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s duty to conduct a
de novo review of the record with a presumption the trial court’s determinations are correct when
a defendant appeals the length, range, or manner of service of his or her sentence. Tenn. Code Ann.
§ 40-35-401(d). The presumption of correctness 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999).

        An especially mitigated or standard offender convicted of a Class C, D or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). However, although a defendant may be presumed to
be a favorable candidate for alternative sentencing, the defendant has the burden of establishing
suitability for total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); Tenn.
Code Ann. § 40-35-303(b). A defendant seeking full probation bears the burden on appeal of
showing the sentence imposed is improper, and that full probation will be in the best interest of the
defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). In
determining whether to grant or deny probation, a trial court should consider the circumstances of
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. State v. Grear, 568 S.W.2d
285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995).

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also Ashby, 823 S.W.2d at 169.

C. Analysis

     The trial court denied the defendant’s request to be placed on immediate probation or
community corrections and sentenced the defendant to split confinement, which is a form of


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alternative sentencing. See Tenn. Code Ann. § 40-35-104(c)(5); State v. Williams, 52 S.W.3d 109,
120 (Tenn. Crim. App. 2001). The trial judge made model findings relating to the sentences
imposed under the Sentencing Act. She carefully reviewed the relevant sentencing principles in
denying full probation and community corrections. The sentences imposed by the trial court are
clearly entitled to a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).

        The trial court noted the defendant had “not taken advantage of any break that any [c]ourt
has ever given him.” Truer words have never been spoken. Less than one month after being placed
on judicial diversion, the defendant tested positive for marijuana and admitted to the probation
officer he had used marijuana after being placed on judicial diversion. The defendant was arrested
for DUI and possession of marijuana on July 26, 1998, and convicted on those offenses on December
1, 1998. Moreover, the defendant, at the time of sentencing on the instant two felonies, had six prior
convictions, two of which were felonies. Thus, over a relatively short period of time defendant had
amassed convictions for eight offenses, four of which were felonies. Defendant had numerous other
charges pending at the time of his sentencing hearing.

       The defendant has a long history of criminal conduct, and measures less restrictive than
confinement have proven totally unsuccessful. See Tenn. Code Ann. § 40-35-103(1)(A), (C). The
defendant has failed to establish that the denial of full probation and community corrections was
improper. We will not disturb the sentences imposed by the trial court.

       We affirm the judgment of the trial court.


                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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