             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                          DECEMBER 1996 SESSION
                                                        FILED
                                                           July 25, 1997

STATE OF TENNESSEE,           )                         Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
                              )
             Appellee,        )    No. 02C01-9512-CR-00363
                              )
                              )    Shelby County
v.                            )
                              )    Honorable Arthur T. Bennett, Judge
                              )
DAVID LEWIS,                  )    (Denial of Probation)
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

Marvin E. Ballin                   Charles W. Burson
Mark A. Mesler                     Attorney General of Tennessee
200 Jefferson Avenue                      and
Suite 1250                         Cyril V. Fraser
Memphis, TN 38103                  Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   John W. Pierotti, Jr.
                                   District Attorney General
                                           and
                                   Jennifer Nichols
                                   Assistant District Attorney General
                                   201 Poplar Avenue
                                   Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION


             The defendant, David Lewis, appeals as of right from the trial court’s order

denying him probation. The defendant was convicted upon guilty pleas in the Shelby

County Criminal Court of attempted theft over one thousand dollars, a Class E felony,

two counts of theft over five hundred dollars, a Class E felony, two counts of theft under

five hundred dollars, a Class A misdemeanor, and unlawfully carrying a weapon, a

Class C misdemeanor. Pursuant to a plea agreement, he was sentenced as a Range I,

standard offender to an effective sentence of two years in the Memphis County

Correctional Facility with the court to determine the manner of service. The sole issue

for our review is whether the trial court erred by denying the defendant’s request for

probation.



              The record reflects that the defendant offered his services as a repairman

to each of the victims of his crimes between January 30, and March 5, 1994. In one

instance, the defendant was blamed for causing the damage that needed repair. In

another, he was accused of taking a box that contained a thousand dollars from a

house he had entered to give an estimate on some work that needed done. In the

other theft cases, the defendant was charged with accepting money for his services

without ever completing them. The defendant was charged with unlawfully carrying a

weapon because of a pistol he had in his car at the time of his arrest.



              At the hearing on his motion for a suspended sentence, the defendant

denied any wrongdoing. However, he admitted that he did not complete all the work he

had agreed to do and said that he felt like he owed money back to some of the victims.

In denying probation, the court noted the defendant’s criminal history and that all of the

victims were elderly and concluded that confinement was necessary to deter others and

to avoid depreciating the seriousness of the offenses.




                                            2
              Appellate review of sentencing is de novo on the record with a

presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-401(d)

and -402(d). As the Sentencing Commission Comments to these sections note, the

burden is now on the appealing party to show that the sentencing is improper. This

means that if the trial court follows the statutory sentencing procedure, makes findings

of fact that are adequately supported in the record, and gives due consideration and

proper application of the factors and principles that are relevant to sentencing under the

1989 Sentencing Act, we may not disturb the sentence even if a different result were

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



              Although probation must be automatically considered, the defendant is

not entitled to probation as a matter of law. See T.C.A. § 40-35-303(b); Sentencing

Commission Comments to T.C.A. § 40-35-303; Fletcher, 805 S.W.2d at 787. However,

as the defendant does not meet the description of one who should be given first priority

regarding a sentence involving incarceration under T.C.A. § 40-30-102(5), and has

been convicted of Class E felonies as a standard offender, he is presumed to be a

favorable candidate for alternative sentencing options in the absence of evidence to the

contrary. T.C.A. § 40-35-102(6).



              In this respect, the presumption in favor of alternative sentencing may be

rebutted if any of the following factors outweigh the defendant’s rehabilitative

capabilities: (1) “confinement is necessary to protect society by restraining the

defendant who has a long history of criminal conduct,” (2) “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 (3)

“measures less restrictive than confinement have frequently or recently been applied

unsuccessfully to the defendant.” T.C.A. § 40-35-103(1); see also State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991); Fletcher, 805 S.W.2d at 787-88.



                                             3
                In this case, the record supports the trial court’s decision to deny

probation. By committing five theft-related offenses over a two-month period, the

defendant demonstrated a sustained intent to violate the law. See State v. Byrd, 861

S.W.2d 377, 380 (Tenn. Crim. App. 1993). Throughout the sentencing hearing, the

defendant denied any wrongdoing, and the trial court questioned his truthfulness.1 The

defendant’s untruthfulness and unwillingness to accept responsibility for his actions

bode poorly for his rehabilitation. See U.S. v. Grayson, 438 U.S. 41, 52, 98 S. Ct.

2610, 2616 (1978); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); Byrd, 861

S.W.2d at 380. In our view, the defendant’s lack of candor coupled with the

circumstances of the offenses justify the denial of probation.



                Accordingly, the judgment of the trial court is affirmed.




                                                                   Joseph M. Tipton, Judge

CONCUR:




Joe B. Jones, Presiding Judge




Jerry L. Smith, Judge




                1
                   W e note that the guilty plea hearing is not part of the record on appeal. Often, evidence
of the circumstances surrounding the offenses and the defendant’s view of his culpability are presented at
that hearing. Thus, potentially relevant trial court records are not before us when we are asked to review
the significance of the defendant’s claims of innocence and the trial court’s view of those claims at the
sentencing hearing.

                                                     4
