        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                       NOVEMB ER SESSION, 1997         December 18, 1997

                                                     Cecil W. Crowson
STATE OF TENNESSEE,             )                  Appellate Court Clerk
                                    C.C.A. NO. 01C01-9612-CC-00533
                                )
      Appellee,                 )
                                )
                                )   RUTHERFORD COU NTY
VS.                             )
                                )   HON. J. S. DANIEL
SANDERS CALDWELL,               )   JUDGE
                                )
      Appe llant.               )   (Denial of Probation)


               ON APPEAL FROM THE JUDGMENT OF THE
               CIRCUIT COURT OF RUTHERFORD CO UNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

JEFFREY S. BURTON                   JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter
201 West Main Street
Suite 101, Court Square Bldg.       GEORGIA BLYTHE FELNER
Murfreesboro, TN 37130              Assistant Attorney General
                                    425 5th Avenu e North
                                    Nashville, TN 37243

                                    WILLIAM W HITESELL
                                    District Attorney General
                                    Third Floor, Judicial Building
                                    Murfreesboro, TN 37130



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                              OPINION

            The Defe ndan t, Sand ers C aldwe ll, appeals as of right pursuant to Rule 3,

Tennessee Rules of App ellate P roced ure. In th is app eal, he argues that the trial

judge abuse d his discr etion in de nying the Defen dant’s req uest for probatio n. W e

affirm the ju dgme nt of the trial co urt.



            On Novem ber 6, 1995, the Defendant was indicted on one count of

aggravated burglary, two counts of theft over $1,000, and one count of theft over

$500. On November 8, 1995, the Defendant was indicted on one count of

aggravated burglary and one count of theft over $1,000. The Defendant waived

presentment of a charge for passing worthless checks.



            Pursuant to a negotiated plea agreement, the Defendant entered several

guilty pleas on Februa ry 8, 1996 . He was convicted of two counts of theft over

$1,000 in case numbers 34949 and 35017 and sentenced as a Range I offender

to consecutive terms of two yea rs and two yea rs and six mo nths, respectively, in

the Department of Correction.1 He was convicted of two counts of theft under

$500 in case numbers 34950 and 34951 and sentenced to eleven months and

twenty-nine days for each offense.2 He was also convicted of one count of

passing worthle ss che cks in case number 36005 and sentenced to eleven

months and twenty-nine days.3 The sentences for theft under $500 and passing




1
    Ten n. Co de A nn. § 39-1 4-10 3, a C lass D felo ny.

2
    Tenn. Code A nn. § 39-14-103, a Class A m isdemeano r.

3
    Tenn. Code A nn. § 39-14-121, a Class A m isdemeano r.

                                                            -2-
worthless checks were ordered to be served concurrently with the sentences for

theft over $1000, for an effective sentence of four and one half years.



        The Defendant submitted an application for a suspended sentence. A

hearing was sch eduled for March 11, 199 6, for which the Defendant did not

appear.     While being served with another warrant for theft, the Defendant

became aware of an outstanding capia s for his arrest for failure to appear at the

probation hearing. He surrendered himself and explained that he thought the

hearing was scheduled for April 11. Another hearing was scheduled for July 22,

1996, at which the Defendant appeared. The trial court denied probation at that

time.



        The Defe ndan t argue s that th e trial jud ge ab used his disc retion in failing

to grant probation. 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 determination s made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned

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

sentencing princip les an d all relevant fac ts and circ umsta nces." State v. Ashby,

823 S.W .2d 166, 169 (Tenn. 199 1).



        In conducting a de novo review of a senten ce, this court mu st consider: (a)

the evidenc e, if any, rece ived at the tria l and the s entenc ing hea ring; (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) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement

                                           -3-
that the defendant made on his own behalf; and (g) the potential or lack of

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

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



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

procedure, imposed a lawful sentence after having given due consideration 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 sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



         Although probation "must be automatically considered as a sentencing

option for eligible defendants, the defen dant is no t autom atically entitled to

probation as a matter of law."          Tenn. Code Ann. § 40-35-303(b) (1990)

(Sentencing Commission Comments). This Court must begin its sentencin g

determination by reviewing the purposes of sentencing set forth in Tennessee

Code Annota ted sectio n 40-35 -102. State v. Davis , 940 S.W.2d 558,559 (Tenn.

1997).



         If an accused has been convicted of a Class C, D or E felony and

sentenced as an especially mitigated or standard offender, there is a

presumption, rebuttable in nature, that the accused is a favorable candidate for

alternative sentencing unless disqualified by some provision of the Tennessee

Criminal Senten cing Re form A ct of 1989 . Tennessee Code Annotated section

40-35-1 02 provid es in part:




                                          -4-
      (5) In recognition that state prison capa cities an d the fu nds to build and
      main tain them are limited, convicted felons committing the most se vere
      offenses, poss essin g criminal histories evincing a clear disregard for
      the laws and morals of society, a nd evincing failure of past efforts at
      rehabilitation shall be given first priority regarding sentencing involving
      incarceration; and

      (6) A defendant who does not fall within the parameters of subdivision
      (5) and is 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 options in the absence of evidence to the
      contrary.


      The sentencing proce ss m ust ne cess arily commence with a determination

of whether the accu sed is en titled to the be nefit of the p resum ption. Ashby, 823

S.W.2d at 169. As our supreme court said in Ashby: "If [the] de termin ation is

favora ble to the defe ndant, the trial court m ust presu me tha t he is sub ject to

alternative senten cing.   If the court is pres ented w ith evidenc e sufficient to

overcome the presumption, then it may sentence the defendant to confinement

accord ing to the s tatutory pro vision[s]." Id. "Evidence to the contrary" may be

found in applying the considerations that govern sentences involving

confinem ent, which are set forth in Tennessee Code Annotated section

40-35-103 (1):



      (A) Confinem ent is necess ary to protect society by re straining a
      defend ant who has a lon g history of c riminal co nduct;

      (B) Conf inem ent is necessary to avoid depreciating the seriousness of
      the offense or confinem ent is particularly suited to provid e an effective
      deterrence to others likely to commit similar offenses; or

      (C) Measures less restrictive than confinement have frequently or
      recently b een ap plied uns uccess fully to the de fendan t.


See Davis , 940 S.W .2d at 561 ; Ashby, 823 S .W .2d at 1 69.      Th e pres ump tion

can be succ essfully reb utted by fa cts conta ined in the presen tence re port,



                                         -5-
evidence presented by the state, the testimony of the accused or a defense

witness, or any other source provided it is made a part of the reco rd. State v.

Bonestel, 871 S.W .2d 163, 167 (Tenn. Crim . App. 1993 ).



       Beyond this, a defe ndant has the burden of establishing his or her

suitability for total probation. Tenn. Code Ann. § 40-35-303(b). To be granted

full probation, a defendant must demonstrate that probation will "subserve the

ends of justice and the best interest of both the public and the defend ant." State

v. Boggs, 932 S.W .2d 467 , 477 (T enn. C rim. App . 1996); State v. Bingham, 910

S.W.2d 448, 456 (Tenn . Crim. App. 19 95) (citing) Hoop er v. State , 201 Tenn.

156, 161, 297 S.W.2d 78, 81 (1956)). The trial court must consider a sentence

which is the “least severe measure necessary to achieve the purposes for which

the sentence is imposed” and must also consider “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant.” Tenn. Code Ann.

§ 40-35 -103(4), (5 ).



       On July 16, 1995, Kristy Beasley reported a burglary in which several items

of jewelry were taken . On July 19, 1995, Jason Bailey of Free Cable America

reported the theft of seve ral tools and two satellite dishes. On July 20, 1995, the

Indian Hills Country Club reported the theft of a lawnmower valued at $750. The

Defendant was identified as the person who fenced the stolen item s to

Roadrunner Salvage . The D efenda nt was arrested on August 8, 1995, posted

a $9,000 bo nd, and wa s released on August 11, 1995. On August 27, 1995,

Glenn Taylor returned home to find the Defendant leaving his house. Mr. Taylor

followed the Defendant, who drove away in a Chrysler New Yorker.               The

Defendant wrecked the vehicle and fled on foot. Mr. Taylor recovered several

                                        -6-
items of his pr operty in the car. The Defendant was arrested on August 28, 1995

and released on the same bond.



      Fran k’s IGA reported to the police that the Defendant had passed four

dishonored checks during July, 1995. The Defendant was arrested on December

14, 1995. Kristy Beasley submitted a victim impact statement and made the

following c omm ents reg arding se ntencing :

   Do not go easy on him. I am a school teacher who sees the way her
   studen ts react to crimes and their pu nishm ents, a nd the y think ja il is cool
   and that there are no real consequences. He needs to see that there a re
   consequences or he will not reform. Yes. Please tell him that I feel like he
   not only stole my property, he stole my memories. He stole my trust. He
   stole my faith in p eople. H e stole my security. Now, I’m just angry and
   jaded.


Glenn Taylor made the following victim impact statement regarding the

Defendant’s sentence: “I understand about the overcrowding in the prisons but

the sentencing should be the most anyo ne can rece ive. I have to work hard for

everything I have and to have someone rob me it is not fair.” Ms. Beasley

requested $2,000 in restitution and Mr. Taylor requested $700 in restitution.



      Detectives Ken Roberts and Preble Morton reported that the Defendant

never assisted them in recovering any s tolen items. De tective Morton stated that

the Defendant could not be trusted because he was a crack cocaine user and

that the Defe ndant tried to blame the crimes on someone else. The presentence

report reflects that the Defendant was on parole when the offenses in question

were committed. He had also been convicted of five felonies, theft and burg lary

offenses, prior to the offenses under consideration.




                                          -7-
      The presen tence re port reflects that the Defendant was thirty-five and

married and the time of sentencing. The Defendant dropped out of high school

after the tenth gr ade.   He obtained his G.E.D . on Nov embe r 7, 1980 .      He

attended Shelby State for a short time. The Defendant reported some use of

alcohol and mariju ana and that he had used cocaine two or three times. He

reported that it had been over fifteen years since he used illegal drugs. He

reported working at Briskin Manufacturing Comp any for a year from May, 1994

to May, 1995, which was verified by the probation officer. No other employment

was verified.



      A hearing was conducted on July 22, 1996. The Defendant reported that

two offens es listed as prior convictions had been dismissed. He also reported

that he went to trial on a charge of first degree murder, but was acquitted of that

offense based on self-defense . He obtained his G.E.D. while at the Shelby

Coun ty Penal Farm.       The Defendant testified that he had never been on

supervised probation and requested intensive supervised probation because of

his drug pro blem. The Defendant corrected the statement in the presentence

report and testified that he had been using a variety of illegal drugs for the past

fifteen years. Th e Defe ndant s tated he would be willing to attend an in-house

treatment program. The Defendant stated that he would live with his girlfriend

and her mothe r if released on prob ation and that he would try to obtain

employment as a certified welder. He denied current drug use. He stated that

the thefts were caused by his drug use.



      On cross-examination, the Defendant admitted that he was on parole when

he committed the first burg lary. He stated that he was charged with burglary but

                                        -8-
that he did not enter Mr. Taylor’s house. The Defendant named a number of

places where he worked from 1980 to 1994, but none had been verified by the

probation officer. The Defendant denied taking the items from Ms. Beasley, but

stated that he took them to the pawn shop for someone else.



      The trial judge noted that he read the presentence report carefully. He

noted the Defendant’s five prior felonies and that he has spent the majority of the

past fifteen years incarcerated or on the street with no “visible sign of

emplo ymen t.” The trial court also noted that the Defendan t was o n paro le when

he engaged in the offenses that occurred on July 16, 1995, and that he

committed the other offenses while out on bond. In sum, the trial court stated

that: “H e sim ply is a person wh o becaus e of his extensive prior criminal record,

his inability to really comply with the ru les of soc iety is not on e worthy o f a

suspension of his sentence.” The trial court obviously determined that probation

would not “subserve the ends of justice and the best interest of both the public

and the defendant.” When considering the evidence contained in this record, we

cannot conclude that the trial judge erred or abused his discretion in denying

probation.



      Accord ingly, we affirm the judgm ent of the tria l court.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE




                                         -9-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




                             -10-
