         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 4, 2008

                  STATE OF TENNESSEE v. MARICO FOWLER

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 05-08602    W. Mark Ward, Judge




                      No. W2007-01631-CCA-R3-CD - Filed July 10, 2009


Following a jury trial, Defendant, Marico Fowler, was convicted of aggravated assault, a Class C
felony, reckless endangerment, a Class A misdemeanor, reckless endangerment with a deadly
weapon, a Class E felony, and vandalism, a Class A misdemeanor. At the conclusion of the
sentencing hearing, the trial court sentenced Defendant to concurrent sentences of eleven months,
twenty-nine days for vandalism, eleven months, twenty-nine days for reckless endangerment, three
years for reckless endangerment with a deadly weapon, and ten years for aggravated assault, for an
effective sentence of ten years. The felony sentences are as a Range II multiple offender. The trial
court ordered Defendant to serve his sentences in confinement. On appeal, Defendant argues that
the trial court erred in denying his request for alternative sentencing. After a thorough review of the
record, we affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and D.
K ELLY T HOMAS, J R ., JJ., joined.

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Marico Fowler.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Scot Bearup, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                             OPINION

I. Background

       On July 1, 2005, the victim, Faye Boyce, and her husband, James Bowles, were visiting with
some friends at the friends’ home. Defendant drove up to the home and told the victim that he had
always wanted to have sex with her. Mr. Bowles asked Defendant not to speak to his wife like that
and Defendant began cursing. After observing this behavior, the owners of the home asked
Defendant to leave their property. Defendant entered his vehicle and “rammed” the victim’s car
twice. The victim then called the police and filed a report. The police informed her that they needed
Defendant’s license tag number in order to follow up on the report.

        The next day, July 2, 2005, the victim was at her mother’s home when Defendant drove by.
He stopped and got out of his car and yelled at the victim. The victim then went over to her car to
retrieve a pencil and paper in order to write down Defendant’s license tag number. When she did
this, Defendant asked her if she was trying to get his license tag number so “they could send him to
jail.” He then stated that “I’m going to go to jail for a reason” and drove away. About fifteen
minutes later Defendant returned and said, “B****, I’m back.” Defendant then began shooting. The
victim fell to the ground and began to crawl toward her mother’s car in order to hide underneath it.
Her brother shielded her body with his and told Defendant that he was not going to shoot his sister.
Defendant told him to move or he would shoot him too. The victim managed to crawl under the car
by this point, but Defendant continued to shoot at her. The victim testified that Defendant was
shooting a gray revolver and shot five times. The victim also stated that she was certain the
Defendant was the person involved in these crimes.

II. Analysis

        Defendant contends that the trial court erred in denying his request for alternative sentencing.
On appeal, the party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n Comments;
see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant challenges the length,
range, or 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. T.C.A. § 40-35-401(d). This presumption of correctness, however, “‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn.
2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however, the trial court
applies inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails,” and our review is de novo. Carter, 254 S.W.3d
at 345 (quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1002); State v. Pierce, 138
S.W.3d 820, 827 (Tenn. 2004)).

       In conducting a de novo review of a sentence, this Court must consider (a) the evidence
adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) evidence and information offered by the parties on the enhancement
and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f)
any statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; and (g) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at
343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

       Effective June 7, 2005, our legislature amended Tennessee Code Annotated section 40-35-
102(6) by deleting the statutory presumption that a defendant who is convicted of a Class C, D, or


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E felony, as a mitigated or standard offender, is a favorable candidate for alternative sentencing. Our
sentencing law now provides that a defendant who does not possess a criminal history showing a
clear disregard for society’s laws and morals, who has not failed past rehabilitation efforts, and who
“is an especially mitigated or standard offender convicted of a Class C, D or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of evidence to
the contrary. T.C.A. § 40-35-102(5), (6) (emphasis added). Additionally, a trial court is “not bound”
by the advisory sentencing guidelines; rather it “shall consider” them. Id. § 40-35-102(6).
(Emphasis added).

       As of June 7, 2005, no longer is any defendant entitled to a presumption that he or she is a
favorable candidate for probation. Carter, 254 S.W.3d at 347. Generally, defendants classified as
Range II or Range III offenders are not to be considered as favorable candidates for alternative
sentencing. T.C.A. § 40-35-102(6). In determining whether to deny alternative sentencing and
impose a sentence of total confinement, the trial court must consider if:

       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;

       B) Confinement is necessary to avoid depreciating the seriousness of the offense or
       confinement is particularly suited to provide an effective deterrence to others likely
       to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant . . . .

T.C.A. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. Additionally, the principles of
sentencing reflect that the sentence should be no greater than that deserved for the offense committed
and should be the least severe measure necessary to achieve the purposes for which the sentence is
imposed. T.C.A. § 40-35-103(2), (4). The court should also consider the defendant’s potential for
rehabilitation or treatment in determining the appropriate sentence.

        In his brief, the defendant addresses whether he should have received probation. The
determination of entitlement to full probation necessarily requires a separate inquiry from that of
determining whether a defendant is entitled to a less beneficent alternative sentence. See State v.
Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). A defendant is required to establish his suitability for full
probation as distinguished from his favorable candidacy for alternative sentencing in general. State
v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. 40-35-303(b) (2006); Bingham,
910 S.W.2d at 455-56. A defendant seeking full probation bears the burden of showing that
probation will subserve the ends of justice and the best interest of both the public and the defendant.
State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by
Hooper, 29 S.W.3d at 9. As the Sentencing Commission points out, “even though probation must
be automatically considered as a sentencing option for eligible defendants, the defendant is not
automatically entitled to probation as a matter of law.” Id. § 40-35-303, Sentencing Comm’n Cmts.



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        As a Range II, multiple offender, Defendant is not considered a favorable candidate for
alternative sentencing. See T.C.A. § 40-35-102(6). Nonetheless, he remains eligible for an
alternative sentence because his sentences were ten years or less and the offenses for which he was
convicted are not specifically excluded by statute. T.C.A. §§ 40-35-102(6), -303(a).

        The trial court examined Defendant’s potential for rehabilitation or lack thereof when it
considered whether alternative sentencing was appropriate. T.C.A. § 40-35-103(5). The trial court
determined that the offenses committed were serious enough to warrant the denial of alternative
sentencing when considered with all the other factors, such as his criminal history, his probation
violations, his lack of employment, the fact that he dropped out of school in the tenth grade, and his
lack of credibility on the witness stand. These factors fully justify the trial court’s decision.

        The trial judge is in the best position to assess a defendant's credibility and potential for
rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999). Furthermore,“[a]
felon's rehabilitation potential and the risk of repeating criminal conduct are fundamental in
determining whether he or she is suited for alternative sentencing.” State v. Keen, 996 S.W.2d 842,
844 (Tenn. Crim. App. 1999).

         Defendant also contends that the trial court erred by “looking behind the verdict” and
examining the actual acts committed by Defendant. Our Supreme Court has held that it is proper for
a trial court to look behind a plea bargain and consider the “true nature of the offenses committed”
in setting a sentence within that range. State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983).
The Court has also held that when considering an enhancement factor, a sentencing court may apply
the factor based on facts underlying an offense for which the defendant has been acquitted at trial.
State v. Winfield, 23 S.W.3d 279, 284 (Tenn. 2000). Although this case does not involve a plea
bargain or application of an enhancement factor based on the true nature of the offenses, we see no
reason why the logic of Hollingsworth and Winfield should not apply equally to determine manner
of service in cases such as this involving guilt by a jury verdict See State v. Michael Lee Hovatter,
a/k/a Michael L. Hovater, 1986 WL 934, No. 85-85-220-III, at 1 (Tenn. Crim. App., at Nashville,
Jan. 22, 1986). In any event , even if the trial court erred in “looking behind the verdict,” which we
do not believe occurred in this case, the other factors considered by the court fully support the denial
of alternative sentencing.

      Based on our review of the record, we conclude that the trial court did not err in denying
Defendant’s request for alternative sentencing.

                                           CONCLUSION

       For the foregoing reasons, the judgments of the trial court a reaffirmed.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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