            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         APRIL 1999 SESSION
                                                        June 3, 1999

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 01C01-9805-CR-00227
            Appellee,           )
                                )    DAVIDSON COUNTY
VS.                             )
                                )    HON. SETH NORMAN,
JOHN C. CONE,                   )    JUDGE
                                )
            Appellant.          )    (Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:


ROBERT T. VAUGHN                     JOHN KNOX WALKUP
176 Second Ave., North               Attorney General & Reporter
Suite 500
Nashville, TN 37201                  MARVIN E. CLEMENTS, JR.
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     VICTOR S. JOHNSON, III
                                     District Attorney General

                                     S. CARRAN DAUGHTREY
                                     Asst. District Attorney General
                                     Washington Square, Suite 500
                                     222 Second Ave., North
                                     Nashville, TN 37201



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was charged with vandalism, three counts of aggravated

assault, and two counts of assault. Pursuant to a plea agreement, he pled guilty to

vandalism and two counts of aggravated assault, receiving a sentence of one year on the

vandalism count and four years on each aggravated assault count, to be served

concurrently. Following a sentencing hearing to determine the manner of service, the trial

court denied probation. The defendant now appeals, arguing that the trial court erred in

denying probation because it perceived inconsistencies in the defendant’s statements

and did not allow the defendant to clarify the evidence through his statutory right of

allocution prior to sentencing. Finding no error, we affirm.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness.             T.C.A. § 40-35-401(d).        This

presumption, 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the

sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing

Commission Comments.



              Here, the trial court denied probation because it found the defendant was

“not straight” with the court and court officers on various occasions. Specifically, the court

questioned the defendant’s representations to the court and to the presentence report

officer regarding the facts underlying the offenses. According to the official version of the

facts in the presentence report, the defendant, as aggressor, attacked and physically

harmed his girlfriend.     According to the defendant’s version of the facts in the



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presentence report, however, his girlfriend attacked him and essentially hurt herself in the

process. At the sentencing hearing, the trial court questioned the defendant’s version of

the facts when compared to the official version of the facts, which the State had

enumerated and the defendant had admitted were true during the guilty plea hearing.

Defense counsel maintained that the defendant pled guilty because he believed it was

in his best interest, but the trial court reiterated that the defendant submitted to the court

a guilty plea, not a best interest plea, thus admitting the State’s version of the facts. The

record does not contain a guilty plea hearing transcript, without which this Court must

presume that the evidence supported the trial court’s determination that the defendant

misrepresented the facts underlying the offenses. See State v. Bibbs, 806 S.W.2d 786,

790 (Tenn. Crim. App. 1991).



              The record also reflects that the trial court found the defendant to be

untruthful regarding a random drug screening the defendant failed while on house arrest

awaiting sentencing. According to the sentencing hearing testimony of Michael Larko,

who was involved with supervising the defendant while he was on house arrest, the

defendant failed a random drug screen for cocaine while on house arrest. W hen Mr.

Larko asked the defendant whether he had used cocaine, the defendant replied that

some of his friends had been smoking crack cocaine in his house and that his positive

drug test result must have been due to second-hand smoke. The defendant later told the

presentence report officer a different story: that he had “unknowingly smoked a cigarette

laced with cocaine.”



              Untruthfulness reflects poorly on a defendant’s potential for rehabilitation,

which is a relevant consideration in determining whether alternative sentencing is

appropriate. T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim.



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App. 1994). Because untruthfulness is a valid reason for denying probation, the trial court

was justified in imposing incarceration instead of probation. See State v. Chrisman, 885

S.W.2d 834, 840 (Tenn. Crim. App. 1994).



                   The defendant contends that the trial court improperly concluded he was

being untruthful without first allowing him an opportunity to address the court through his

statutory right to allocution. Section 40-35-210 provides that one of the factors the court

“shall” consider in imposing a sentence is “[a]ny statement the defendant wishes to make

in the defendant’s own behalf about sentencing.” T.C.A. § 40-35-210(b)(6). Initially, we

note that neither the defendant nor his attorney clearly expressed that the defendant

wished to address the court prior to sentencing. The record merely reflects two rather

ambiguous declarations that the defendant intended, at some point, to address the court.1

When it became apparent that the trial court would sentence the defendant even though

the defendant had not yet addressed the court, the defendant failed to object.



                   Even so, because any statement the defendant wishes to give must be

considered in imposing a sentence, the trial court has a statutory duty to entertain any

statement by the defendant prior to sentencing. See § 40-35-210(b)(6). Here, the trial

court failed to do so by not providing the defendant with an opportunity to address the

court, despite the fact that the defendant did not specifically request one. Still, the trial

court’s error was harmless. The defendant is complaining that because the trial court

based its decision to deny probation on perceived inconsistencies in the evidence, he

should have been given an opportunity to clarify the inconsistencies in the evidence. The



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           Afte r the la st de fens e witn ess , the d efen dan t’s atto rney s tated that “s ubje ct to th e def end ant’s
right of elocution [sic] prior to sentencing, we have nothing further,” at which point the court entertained
the attorneys’ arguments. During the defense argument, defense counsel briefly mentioned that the
defendant did not deny that the offenses occu rred and that the defendant “will discuss that with you.”
Still, no requ est fo r alloc ution was ma de. S hortly th erea fter, th e trial c ourt p rono unc ed th e def end ant’s
sentence.

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only way he could have done so, however, would have been to testify under oath and

present his own evidence, which he chose not to do. His statements during allocution,

which is not sworn testimony, would not have carried the weight of proof and thus would

not have clarified the record. Thus, even assuming that the defendant had been afforded

the opportunity to address the court via allocution, the inconsistencies in the evidence

would remain, providing ample justification to deny probation. See Chrisman, 885

S.W.2d at 840.



             Finding no reversible error, the trial court’s judgments are affirmed.




                                                _______________________________
                                                JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
J. CURWOOD WITT, JR., Judge




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