            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                            APRIL 1997 SESSION
                                                          July 31, 1997

                                                     Cecil W. Crowson
STATE OF TENNESSEE,           *                     Appellate Court Clerk
                                   C.C.A. # 01C01-9607-CR-00314

             Appellee,        *    DAVIDSON COUNTY

VS.                           *    Hon. Donald Harris, Special Judge

REGINOL L. WATERS,            *    (Official Misconduct; Theft over $10,000)

             Appellant.       *



For Appellant:                     For Appellee:

Jeffrey A. Devasher                Charles W. Burson
Assistant Public Defender          Attorney General & Reporter
1202 Stahlman Building
Nashville, TN 37201                Ruth Thompson
                                   Counsel for the State
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Katie Miller
                                   Assistant District Attorney General
                                   Washington Square
                                   222 Second Avenue, Suite 500
                                   Nashville, TN 37201-1649




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                                 OPINION

                 The defendant, Reginol L. Waters,1 pled guilty to one count of official

misconduct and one count of theft over $10,000 and received one- and four-year

sentences respectively. The trial court ordered the defendant to serve ninety days

in the Davidson County Workhouse before placement on a Community Corrections

program.



                 In this appeal of right, the defendant claims that the trial court erred by

requiring any of the sentence to be served. We find no error and affirm the

judgment of the trial court.



                 The facts supporting the official misconduct conviction are summarized

in the presentence report. The defendant had been employed as an automobile

emissions testing agent. On December 11, 1993, after inspecting the personal

vehicle of a police officer, the defendant informed the officer that he could get the

vehicle passed "for a price." The officer informed his supervisor of the incident and,

a few days later, Vice Officer Greg Jones began an investigation. He first had a

vehicle tested several times for emissions; it consistently failed to meet standards.

Jones then took the vehicle for inspection by the defendant, who confirmed the

vehicle did not meet the established guidelines. The defendant then offered to

"pass" the vehicle for twenty-five dollars. Jones gave the defendant the money and

left. Upon his return, the defendant provided certification papers even though the

vehicle had not been examined.



                 The factual basis for the theft conviction are also summarized in the



        1
         Th e de fendan t was cha rged in two s epa rate ind ictm ents . The m iscondu ct indictm ent lists
the defenda nt's na m e as "Reginol L. W aters " and the the ft indictm ent as "Reginol Leo n W aters ."

                                                      2
presentence report. On October 3, 1994, the victim, Thomas Shriver, was returning

to his apartment during the early hours of the morning, when he passed by the

defendant, who was walking toward the parking lot. When he entered his residence,

the victim realized that several items, including a computer, were missing. The

victim tried to stop the defendant, who was driving away in a gray 1988 Mazda

pickup truck. The victim reported the incident to police, who, within minutes, made

an arrest. The stolen items were in the truck. The victim, when called to the scene,

identified the defendant and the items taken in the burglary. The defendant

confessed but explained to police that a person named John had instructed him to

go to that apartment and pick up the items; he claimed that John, who said his wife

lived at the apartment, told him that the items would be out on the patio. The

defendant could not recall John's last name and was unable to remember the

address John had provided. After the defendant was transported to jail, police

found a gold necklace belonging to the victim in the defendant's shoe.



             The defendant, thirty-three years of age at the time of sentencing,

testified that he graduated from high school, spent four years in the Navy, and had

received an honorable discharge. Thereafter, he worked for the post office but was

fired in 1992 due to cocaine and marijuana use. During that time, he developed a

$500 to $1000 per day cocaine habit. He was treated for the addiction but quit the

program after ten days. Afterward, the drug problem became more severe. From

1992 until 1994, the defendant held a variety of temporary jobs. In 1994, he had

some success as a self-employed painter and had recently acquired a $20,000

contract.



             The defendant claimed that he had solicited bribes while employed as

a testing emissions agent to support his drug habit. He continued to assert that the


                                          3
theft was at the direction of his friend John, who explained that his wife's order of

protection precluded his picking up the items himself. The defendant claimed John

agreed to pay him $100 to collect the items. The defendant explained that he went

to the apartment at an unusual hour because he believed the items were on the

patio and it had begun to rain. The defendant insisted that he had found the gold

necklace on the ground and had kept the necklace to assure John would pay him.

Despite his version of events, the defendant conceded that he knew taking the items

was "somehow not legitimate."



              After his arrest, the defendant underwent drug treatment at the

Veteran's Hospital. He finished the thirty day program and had been drug free until

the imposition of sentence. He testified that he began using illegal drugs at age

nineteen, while he was in the navy and that drug use was very common among

enlisted men. At the time of the theft, the defendant was on probation for a

misdemeanor offense unrelated to these charges. He had been released on bail on

the official misconduct charge.



              When a challenge is made to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a "de novo review ... 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). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the


                                            4
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210.



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are, of course, presumed to be favorable candidates "for alternative

sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. §

40-35-102(6).



              Among the factors applicable to consideration for an alternative

sentence are the circumstances of the offense, the defendant's criminal record,

social history and present condition, and the deterrent effect upon and the best

interest of the defendant. State v. Grear, 568 S.W.2d 285 (Tenn. 1978). The

purpose of the Community Corrections Act of 1985 was to provide an alternative

means of punishment for "selected, nonviolent felony offenders in front-end

community based alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The

Community Corrections sentence provides a desired degree of flexibility that may be

both beneficial to the defendant yet serve legitimate societal aims. State v. Griffith,

787 S.W.2d 340, 342 (Tenn.1990). That the defendant meets the minimum

requirements of the Community Corrections Act of 1985, however, does not mean

that he is entitled to be sentenced under the act as a matter of law or right. State v.

Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987). The following offenders are

eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

                                           5
                (3) Persons who are convicted of nonviolent felony
                offenses;

                (4) Persons who are convicted of felony offenses in
                which the use or possession of a weapon was not
                involved;

                (5) Persons who do not demonstrate a present or past
                pattern of behavior indicating violence;

                (6) Persons who do not demonstrate a pattern of
                committing violent offenses; and

                (7) Persons who are sentenced to incarceration or on
                escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



                In Ashby, our supreme court encouraged the grant of considerable

discretionary authority to our trial courts in matters such as these. 823 S.W.2d at

171. See State v. Moss, 727 S.W.2d 229, 235 (Tenn.1986). "[E]ach case must be

bottomed upon its own facts." Taylor, 744 S.W.2d at 922. "It is not the policy or

purpose of this court to place trial judges in a judicial straight-jacket in this or any

other area, and we are always reluctant to interfere with their traditional discretionary

powers." Ashby, 823 S.W.2d at 171.



                In sentencing the defendant, the trial court made the following

observations:

                He's entitled to the presumption ... [that he] is a favorable
                candidate for alternative sentencing. In this case he was
                on probation at the time this offense or these offenses
                were committed and that's certainly a sentencing
                consideration .... But another sentencing consideration
                this Court deems important is the potential or lack [of]
                potential for rehabilitation.

                        Mr. Waters, I believe that one of the main things
                that you or any one person can do to show that you can
                be rehabilitated, is to come into this court and tell the
                truth. I'm going to be honest with you, if you had come in
                here and told me that you planned the burglary of this
                home and that you broke in and you took these things

                                              6
             and you put them in your truck and you got caught, I
             would feel a lot better about you than I do. Instead, you
             tell this story about someone whose last name you don't
             know named John, phoning you and telling you that he
             had been put out of his home and you get this report and
             8:00 at night and you decide at 3:30 in the morning that
             you're going to go over to this home and pick up those
             things.

                    And I tried to give you an opportunity to tell me the
             truth. ... I think that's a significant factor in determining
             whether you really are earnest in your efforts to be
             rehabilitated.



             The defendant was eligible for an alternative sentence and, of course,

received one. Lack of candor, however, has traditionally been a valid reason for

denying immediate probation. State v. Poe, 614 S.W.2d 403 (Tenn. Crim. App.

1981). Untruthfulness suggests a lack of amenability towards rehabilitation. State

v. Bunch, 645 S.W.2d 158 (Tenn. 1983). The defendant's version of the theft was,

in a word, incredible. That the defendant was on probation when he committed the

theft is also an unfavorable factor. A period of incarceration is appropriate where

"[m]easures less restrictive than confinement have ... recently been applied

unsuccessfully ...." Tenn. Code Ann. § 40-35-103(1)(C).



             The judgment is affirmed.

                                         __________________________________
                                         Gary R. Wade, Judge

CONCUR:



_______________________________
David H. Welles, Judge



_______________________________
Curwood Witt, Judge



                                          7
8
