            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               Assigned on Briefs February 24, 2004

            STATE OF TENNESSEE v. MARION SHAWN LAUGHRUN1

                 Direct Appeal from the Criminal Court for Washington County
                       Nos. 26927, 26943, 27559   Robert E. Cupp, Judge



                                      No. E2003-00346-CCA-R3-CD
                                             April 16, 2004

The appellant, Marion Shawn Laughrun, pled guilty to two counts of theft in the Washington County
Criminal Court and received a total effective sentence of two years and one day in the Tennessee
Department of Correction. The trial court granted the appellant probation on both of his sentences.
While on probation, the appellant pled guilty to attempted robbery and received a sentence of four
years incarceration in the Tennessee Department of Correction. As a result of the new conviction,
the trial court revoked the appellant’s probation on the theft convictions and ordered the original
sentences to be served in confinement. Additionally, the court refused to grant the appellant an
alternative sentence on the attempted robbery conviction. The appellant appeals both the probation
revocation and the denial of alternative sentencing. Upon review of the record and parties’ briefs,
we affirm the judgments of the trial court.

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

NORMA MC GEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
ALAN E. GLENN , J., joined.

Deborah Black Huskins, Johnson City, Tennessee, for the appellant, Marion Shawn Laughrun.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Joe Crumley, District Attorney General; and Dennis Brooks, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                                   OPINION

                                          I. Factual Background



        1
          The indictment in case number 26943 (theft over $500) reflects that the appellant’s name is “Marion Shawn
Laughrun.” The indictment in case number 27559 (attempted robbery) reflects the name “Marion S. Laughrun,” while
case number 26927 (theft over $1000) reflects the name “Shawn M. Laughrun.”
        On September 5, 2001, the appellant was indicted by the Washington County Grand Jury on
one count of theft of property valued over $500 from Johnson City Internal Medicine and one count
of theft of property valued over $1000 from his aunt, Dorthy J. Sult. On November 9, 2001, the
appellant entered guilty pleas to both of the foregoing charges. The appellant received concurrent
sentences of one year for the conviction for theft over $500 and two years and one day for the
conviction for theft over $1000. The trial court suspended both of the appellant’s sentences.

        On March 12, 2002, a probation violation warrant was issued against the appellant, alleging
that he failed to comply with several rules governing his probation. Notably, the warrant stated that
the appellant failed to obey the laws, citing as proof his arrest on March 9, 2002, for aggravated
robbery and his charges of writing six bad checks to Ingles grocery store while on probation.

        Subsequently, on September 16, 2002, the appellant pled guilty to attempted robbery for the
March 2002 offense and received an agreed upon sentence of four years, which sentence was to be
served consecutively to the sentences for the theft convictions. At the plea hearing, the trial court
placed the appellant on “bond monitoring” until December 2, 2002, at which time the court would
determine whether to grant the appellant probation. Thereafter, on October 15, 2002, a violation
warrant was issued, claiming that the appellant violated his “bond monitoring contract” by
absconding, failing to maintain employment, missing an office visit, missing an “MRT class,” failing
to perform community service, and missing curfew.

       On January 27, 2003, a hearing was held regarding the revocation of the appellant’s probation
on the theft convictions and the appellant’s request for probation on the attempted robbery
conviction. The appellant testified at the hearing that he had been on probation for the two theft
convictions when he engaged in the act of attempted robbery. His motivation for the attempted
robbery was to gain money to support his cocaine addiction. He stated that while he was in jail
following the attempted robbery, he wrote a “relapse prevention plan” which included “continuing
care with Watauga outpatient therapy” where he had completed a six-month program.

        The appellant admitted that while he was on probation for the theft convictions he failed to
attend probation meetings, pay probation fees, or begin community service. However, the appellant
maintained that he had been paying his court costs and fees. The trial court noted that the appellant
had paid a total of $727 on one case.

        The appellant testified that he was successful on bond monitoring for approximately three
weeks, then he began experiencing family problems. The appellant explained that he had “[o]ngoing
issues that I had not been back to see my personal psychiatrist for follow-up after I got out of jail.
So I became overwhelmed and fearful, and I believe that’s what prompted me to miss my
appointment. I just became scared and – fearful and anxiety – anxious.”

       Also while on bond monitoring, the appellant received a conviction for leaving the scene of
an accident. The appellant maintained that a truck ran a stop sign and collided with his vehicle.
Even though the accident was not his fault, the appellant “panicked” and “bec[a]me overwhelmed


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and fearful knowing that it wasn’t my fault. . . . I just left.” The appellant also admitted that he
wrote bad checks in January 2002 while he was on probation for the theft convictions. The appellant
conceded that he never informed his probation officer of his new arrests or convictions. He
attributed his fear and anxiety to his recently diagnosed anxiety and chronic depression. He stated
that after his diagnosis, he was prescribed Zoloft and “noticed remarkable change.”

       At the conclusion of the hearing, the trial court revoked the appellant’s probation on the theft
convictions. The trial court stated:

               First of all, as to the violation of probation in the theft charge[s], . . .
               the court finds that he violated the conditions of it by catching the
               new charge, that is attempted robbery. And not only that he . . .
               violated the terms of it because he was under an obligation from his
               probation to report that offense, those check charges, to the probation.
               He didn’t do that. Because of that he did violate the terms of
               probation [on] . . . the theft charges. Those charges are ordered
               served.

        Turning to the appellant’s request for probation on the attempted robbery conviction, the trial
court listed the appellant’s extensive criminal history. The trial court noted that, irrespective of the
appellant’s status as a Range II offender, “he’s entitled to a presumption and he’s a favorable
candidate for probation.” However, the trial court determined that the appellant demonstrated “a
clear disregard for the laws and morals of society” and “evinc[ed] failure of past efforts at
rehabilitiation.” Notably, the trial court explained:

               I mean, we tried to rehabilitate him on the theft charge[s] and it didn’t
               work. I let him back out foolishly after he had the theft[s] and the
               attempted robbery on an attempt to continue to rehabilitate him, and
               that went kerplunk down the drain. So because of that, he is one of
               those individuals that you give first priority on determining whether
               or not you should possibly incarcerate him.

                       ....

                       . . . And I’m looking at probation factors. I’ve talked about
               his prior criminal history. I’ve talked about – and we all talked about
               his previous actions and character. His character is just – it’s not
               there. He has none. . . . [The appellant has] done nothing except go
               back to his old ways as soon as we let him back out. And one of the
               big factors of whether the [appellant] might reasonably be expected
               to be successful in rehabilitation, and that’s just an absolute no, an
               unequivocal no. We’ve given him . . . every opportunity to show us
               he can be rehabilitated. . . . Because . . . the [appellant’s] potential for


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               rehabilitation is just absolutely nonexistent in this case, the court
               orders the attempted robbery sentence also served.

        On appeal, the appellant challenges the trial court’s imposition of incarceration upon the
revocation of probation relating to the theft convictions and the denial of alternative sentencing on
the attempted robbery conviction.

                                             II. Analysis

        Appellate review of the manner of service of a sentence is de novo. See Tenn. Code Ann.
§ 40-35-401(d) (1997 and 2003). In conducting its de novo review, this court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on enhancement and mitigating factors; (6) any statement by the appellant in his own
behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -
103, -210 (1997 and 2003); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden
is on the appellant to demonstrate the impropriety of his sentences. See Tenn. Code Ann. § 40-35-
401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court
adequately considered sentencing principles and all relevant facts and circumstances, this court will
accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d
at 169. In the instant case, we conclude that the trial court’s determinations are not entitled to a
presumption of correctness.

                                      A. Probation Revocation

        Upon finding by a preponderance of the evidence that the appellant has violated the terms
of his probation, a trial court is authorized to order an appellant to serve the balance of his original
sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(d) (1997), -310 and -311(e)
(2003); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Furthermore, probation revocation rests
in the sound discretion of the trial court and will not be overturned by this court absent an abuse of
that discretion. See State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). An abuse of
discretion exists when “the record contains no substantial evidence to support the trial court’s
conclusion that a violation has occurred.” State v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim. App.
1995).

        In the instant case, the appellant concedes that there was ample proof to support the
revocation of his probation. However, he contends that the trial court should have again granted him
alternative sentencing upon the revocation of his probationary sentence. As we noted, the trial court
was authorized to impose the original sentences upon revoking the appellant’s probation. Moreover,
“an accused, already on probation, is not entitled to a second grant of probation or another form of
alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065,
at *2 (Tenn. Crim. App. at Nashville, Feb. 10, 1999); see also State v. Timothy A. Johnson, No.


                                                  -4-
M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim. App. at Nashville, Feb. 11,
2002). We conclude that the trial court did not abuse its discretion in revoking the appellant’s
probationary sentences or imposing the original sentences upon the revocation. This issue is without
merit.

                                          B. Alternative Sentencing

        The appellant also argues that the trial court erred in failing to grant an alternative sentence
in connection with his attempted robbery conviction.2 Initially, we recognize that an appellant is
eligible for alternative sentencing if the sentence actually imposed is eight years or less. See Tenn.
Code Ann. § 40-35-303(a) (1997). Moreover, an appellant who 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. See Tenn. Code Ann. § 40-35-102(6). In the instant case, the appellant is
a multiple Range II offender convicted of a Class D felony; therefore, he is not presumed to be a
favorable candidate for alternative sentencing. Regardless, because the sentence imposed was less
than eight years, the appellant was statutorily eligible for alternative sentencing.

       Any presumption in favor of alternative sentencing may be rebutted by “evidence to the
contrary.” State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). The following sentencing
considerations, set forth in Tennessee Code Annotated section 40-35-103(1), may constitute
“evidence to the contrary”:

                  (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.

Id.

       The appellant’s presentence report reflects that he has a long history of criminal conduct.
The appellant has three prior misdemeanor convictions and two felony theft convictions for which
he was on probation at the time of the commission of the instant offense. Moreover, the appellant
admits to a lengthy history of substance abuse. We conclude that the trial court did not err in
considering the appellant’s criminal history as support for its denial of alternative sentencing. See



         2
           Specifically, the appellant contends that he was a suitable candidate for community corrections. Community
corrections is a form of alternative sentencing. See Tenn. Code Ann. §§ 40-35-104 (c)(9), 40-36-106 (1997 and 2003).

                                                        -5-
State v. Jesse Tuggle, No. M2002-02426-CCA-R3-CD, 2003 WL 23099750, at *8 (Tenn. Crim.
App. at Nashville, Dec. 30, 2003), application for perm. to appeal filed, (Feb. 27, 2004).

        Moreover, the record clearly reflects that measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the appellant. The appellant committed the
instant offense while on probation for the aforementioned two felony theft convictions. The
appellant also wrote at least six bad checks while on probation. Additionally, while on bond
monitoring pending sentencing and his probation revocation hearing, the appellant committed the
crime of leaving the scene of an accident. The appellant’s continual reoffending justifies the trial
court’s finding that the appellant’s potential for rehabilitation was “just absolutely nonexistent.” See
State v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994). Accordingly, we conclude that
the record amply supports the trial court’s denial of alternative sentencing.

                                           III. Conclusion

       Finding no reversible error, we affirm the judgments of the trial court.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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