        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

                           APRIL SESSION, 1998


STATE OF TENNESSEE,             )   C.C.A. NO. 03C01-9707-CC-00272
                                )
      Appellee,                 )
                                )
                                )   BLOUNT COUNTY
VS.

RAYMOND E. WOODS,
                                )
                                )
                                )
                                                       FILED
                                    HON. D. KELLY THOMAS, JR.
                                    JUDGE
                                )                        July 7, 1998
      Appe llant.               )   (Direct Appeal - Denial of Probation)
                                                      Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk




FOR THE APPELLANT:                  FOR THE APPELLEE:

SHAWN GRAHAM                        JOHN KNOX WALKUP
Office of the Public Defender       Attorney General and Reporter
419 High Street
Maryville, TN 37804                 ELLEN H. POLLACK
                                    Assistant Attorney General
GERALD L. GULLEY, JR.               425 Fifth Avenu e North
(On App eal Only)                   Nashville, TN 37243
P. O. Box 1708
Knoxville, TN 37901                 MIKE FLYNN
                                    District Attorney General

                                    KIRK ANDREWS
                                    Assistant District Attorney General
                                    363 Court Street
                                    Maryville, TN 37804



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION

      On Decem ber 20, 1996 , Appellant, Raym ond Woods, pled guilty to passing

a $19.40 worthless check, for which there was a $15.00 service charge. The trial

court accep ted the gu ilty plea. At the sentencing hearing, Appellant testified that

he pled guilty because he had missed work often to come to court, and he

“wanted to try to get it over with.” The trial court asked who had written the check,

and Appellant responded that he did not know. Appellant’s testimony was that

someone had s tolen h is chec ks an d forge d his name, but he did not know who

had done so. He also testified that the payee of the check had not don e any work

for him. An employee of the payee identified Appellant as the person who brought

in a radiator to the business to be worked on and as the person who passed the

check. Appellant then made a motion to withdraw his guilty plea. The trial court

denied the mo tion and s entenced Appellant to eleven months and twenty-nine

days, ninety days to be served in the county jail, the rest to be served on

probation. Appellant appeals from the denial of his motion and from the denial of

full probation.



      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                        I. Withdrawal of the Guilty Plea




      Initially, Appella nt challen ges the trial court’s de nial of his m otion to

withdraw the guilty plea. An accused is not entitled to withdraw a plea of guilty as

a matter o f right. State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App.

1995)(citing      State v. Anderson, 645 S.W.2d 251, 253-54 (Tenn. Crim.


                                         -2-
App.198 2);     8A Moore's Federal Practice § 32.09[1] at p. 32-87 (1991

Revision)).Whether the accu sed sh ould be permitte d to withdraw a plea of g uilty

is a question that is addressed to the sound discretion of the trial court regardless

of when the motion is filed. Id. at 355 (citing Henning v. State, 201 S.W.2d 669,

671(Tenn. 1947); State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim . App. 1986 ),

per. app. denied (Tenn .1986); State v. Anderson, 645 S.W.2d at 254(Tenn. Crim.

App. 1982)). A n appe llate court w ill not interfere with the exercis e of this

discretion unless clear abuse appears on the face of the record. Id. at 355 (citing

Henning v. State, 201 S.W .2d at 671 ; State v. Drake, 720 S.W.2d at 799; State

v. Anderson, 645 S.W.2d at 254). On this record, we cannot find that the trial

court in any way abused its discretion in denying Appellant’s motion. This issue

is without m erit.




                          II. Sentence of Confinement




       Appellant also argues that the trial court erred in sentencing him to nin ety

days in jail and no t to a sentence of full probation. When a defendant complains

of his or her sentence, we must conduct a de novo review with a presumption of

correctness. Tenn. Code Ann. § 40-35-401(d). The burden of showing that the

sentence is improper is up on the app ealing party. Tenn. Code Ann. § 40-35-

401(d) Senten cing Co mm ission C omm ents. This pre sum ption, h owev er, is

conditioned upon an affirmative showing in the re cord that the trial court

considered the se ntenc ing prin ciples        and   all   the   relevant facts   and

circum stance s. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).




                                         -3-
      The Sentencing Reform Act of 1989 established specific procedures which

must be followed in sentencing. These procedures, codified at Tennessee Code

Annotated § 40-35-210, mandated the court’s consideration of the following:


      (1) The evidence, if any, received at the trial and the
      sentencing hearing ; (2) [t]he pres entenc e report; (3) [t]he
      principles of senten cing and argum ents as to sentencing
      alternatives; (4) [t]he nature and characteristics of the
      criminal conduct involved; (5) [e]vidence and information
      offered by the parties on the enhancement and mitigating
      factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny
      statement the defendant wishes to make in his own b ehalf
      about sentencing.

Tenn. Code Ann. § 40-35-210. The Sentencing Reform Act also provides that the

trial court shall place on the record either orally or in writing what enhancement

or mitigating factors it found, if any. These findings are crucial for review of the

trial court’s decision upon appeal. The Act further provides that a defendant who

receives a sentence of eight years or less and who is not among those for whom

incarceration is a priority is presumed to possess capabilities for rehabilitative

alternative s entenc ing option s. State v. Ashby, 823 S.W .2d 166 (Te nn. 1991).



      In the matter sub judice, the trial court found that Appellant’s prior

instances of passing worthless checks indicative of the unlikelihood of Appellant

being rehabilitated. T he cou rt further foun d that Ap pellant’s un willingnes s to

accept responsibility for his crime indicated that Appellant had not “made the first

step in being rehabilitated.” The trial court a ccord ingly set Appellant’s sentence

to include confinem ent. This issue is with out me rit.



      Accordingly, the judgment of the trial court is affirmed.




                                         -4-
                         ____________________________________
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
J. CURWOOD WITT, JR., JUDGE




                              -5-
