         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 25, 2006

            STATE OF TENNESSEE v. PATTY D. LAYLAND SMITH

                 Direct Appeal from the Criminal Court for Sullivan County
                         No. S49864, S50143   R. Jerry Beck, Judge



                     No. E2005-01621-CCA-R3-CD - Filed August 14, 2006


Defendant, Patty D. Layland Smith, pled guilty to two counts of failure to appear, each offense being
a Class E felony. Defendant was sentenced as a career offender and ordered to serve six years for
each offense, to be served concurrently, with a sixty (60) percent release eligibility date. Following
a sentencing hearing, the trial court denied probation and any other form of alternative sentencing.
Defendant appeals, arguing that the trial court erred in finding that she was not eligible for probation
or alternative sentencing. After a full review, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ. joined.

Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant Public Defender,
Blountville, Tennessee, (on appeal); and Gene G. Scott, Jr., Johnson City, Tennessee, (at trial), for
the appellant, Patty D. Layland Smith.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Todd Martin, Assistant District Attorney General,
for the appellee, the State of Tennessee.

                                              OPINION

I. Background

       At the guilty plea hearing, the following facts were stipulated as proof:

       [H]ad the matter of S49864 gone to trial, the State's proof would have been that in
       Sullivan County, Tennessee, on October 29th 2004, the Defendant, having Case
       S45142, 16 felon[y] counts of failure to appear, was to appear for Probation
       Violation Hearing on that day and failed to appear.
       Your Honor, had the matter of S50143 gone to trial, the State's proof would have
       been that in Sullivan County, Tennessee, on January 14th, 2005, the Defendant had
       Case S49864, that was previously mentioned, a charge of felony failure to appear
       pending for arraignment and an appearance day, and she failed to appear. On both
       of those charges, Your Honor, she was released on bail for her appearances, the dates
       that are alleged.

II. Analysis

         Defendant’s sole argument on appeal is that the trial court erred in denying her probation or
any other form of alternative sentencing. When a defendant challenges the length, range or the
manner of service of a sentence, it is the duty of this court to conduct a de novo review on the record
with a presumption that “the determinations made by the court from which the appeal is taken are
correct.” T.C.A. § 40-35-401(d) (2003). “However, the presumption of correctness which
accompanies the trial court's action 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). In conducting our review, we must consider the
defendant's potential for rehabilitation, the trial and sentencing hearing evidence, the pre-sentence
report, the sentencing principles, sentencing alternative arguments, the nature and character of the
offense, the enhancing and mitigating factors, and the defendant's statements. T.C.A. §§ 40-35-
103(5), -210(b); Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “[t]he
burden of showing that the sentence is improper.” Ashby, 823 S.W.2d at 169.

        Tennessee Code Annotated section 40-35-102(5) provides as follows: “In recognition that
state prison capacities and the funds to build and maintain them are limited, convicted felons
committing the most severe offenses, possessing criminal histories evincing a clear disregard for the
laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first
priority regarding sentencing involving incarceration.” T.C.A. § 40-35-102(5) (2003 & Supp. 2005).
A defendant who does not fall within this class of offenders “and who is an especially mitigated
offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary.” T.C.A. § 40-35-
102(6) (2003 & Supp. 2005).

        The trial court’s determination of whether the defendant is entitled to an alternative sentence
and whether the defendant is a suitable candidate for full probation are different inquiries with
different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). When
a defendant is entitled to the statutory presumption favoring alternative sentencing, the state must
overcome the presumption by the showing of “evidence to the contrary.” State v. Ashby, 823 S.W.2d
166, at 169 (Tenn. 1991); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995),
overruled in part on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000); see T.C.A. §§ 40-
35-102(6), -103(1) (2003 & Supp. 2005). However, even if the defendant is entitled to the statutory
presumption favoring alternative sentencing, it is the defendant who has the burden of demonstrating
his or her suitability for full probation. Bingham, 910 S.W.2d at 455; see T.C.A. § 40-35-303(b)


                                                 -2-
(2003 & Supp. 2005). Sentencing issues must be determined by the facts and circumstances of each
case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727
S.W.2d 229, 235 (Tenn. 1986)).

        We note that at the time Defendant was sentenced, June 30, 2005, the law provided that
defendants sentenced after June 7, 2005, for crimes committed on or after July 1, 1982, “may elect
to be sentenced under the provisions of the [2005] act by executing a waiver of such defendant’s ex
post facto protections.” T.C.A. § 40-35-303 (Supp. 2005), Sentencing Commission Comments.
Although Defendant was eligible for sentencing under the 2005 act because she committed the
crimes after July 1, 1982 and she was sentenced after June 7, 2005, we find nothing in the record to
indicate Defendant elected to be sentenced under the 2005 act. Accordingly, the sentencing statutes
are applicable as they existed prior to the 2005 amendments. Therefore, Defendant is included
within the class of offenders eligible for consideration for probation who have a sentence of eight
years or less. T.C.A. § 40-35-303(a).

        Defendant pled guilty to two Class E felonies and was sentenced as a career offender. Thus,
Defendant was not presumed to be a favorable candidate for alternative sentencing. See T.C.A. §
40-35-102(6) (2003). However, as stated, the burden is on Defendant to demonstrate her suitability
for full probation. T.C.A. § 40-35-303(b). Since Defendant is not entitled to the statutory
presumption favoring alternative sentencing, the burden is also on her to show her suitability for
alternative sentencing other than full probation. State v. Housewright, 982 S.W.2d 354, 358 (Tenn.
Crim. App. 1997); T.C.A. § 40-35-303(a).

       There was no testimony at the sentencing hearing. The judge considered the arguments of
counsel and the presentence report then made the following findings of fact and conclusions of law:

       She also has some dismissed cases, which the Court will not consider, but she does
       have a lot of other cases, so all of the failures to appear, 17 prior felonies for failure
       to appear . . . she has a D.U.I., 3rd. She has had an assault, a suspended sentence. It
       happened on the same day and a suspended sentence for disorderly conduct. She has
       had a habitual traffic offender felony conviction . . . well, she was declared to be a
       habitual traffic offender, I am sorry. That would not be a crime, just a status. Then
       she has had cocaine possession, misdemeanor, suspended sentence previously.
       Driving on a revoked license, suspended sentence, and another driving on a revoked
       license, suspended sentence, another driving on a revoked license, suspended
       sentence, another D.U.I., 8/1/93, Page 9, a partial suspended sentence; marijuana
       conviction, misdemeanor, on Page 9, last case. It shows 11/29. It doesn’t show
       whether it was suspended and violation of registration was dismissed. I wouldn’t
       consider that; violation of [i]mplied consent, dismissed. Then, finally, on Page 10,
       driving under the influence . . . it looks like that may have been reduced.

                                                 ***



                                                  -3-
       Defense Counsel does make a point that the 17 failures to appear rose out of a chain
       of events arising out of the, as he described, the failures to appear. Nonetheless, the
       Defendant has other prior record, other failure while on probation.

       She went to Dobyns-Bennett High School through the 11th Grade and dropped out
       during her Senior year. She completed [a] Phlebotomy Class; that is a blood
       technician in 2004, according to her self-report. Ite [sic] says her mental health is
       poor to fair. History of drug usage. Generally worked as a waitress. She worked at
       Quebecor, a book publishing plant in Kingsport for a short period of time.

       Mr. Scott, there is too much record there. I can't grant probation. I am going to deny
       probation or alternative sentencing. I have considered residential . . . not residential
       community corrections but regular community corrections, because of her drug use,
       but there is too much there.

        The record shows that in denying probation, the trial court relied on enhancement factor (2)
Defendant’s previous criminal history, and enhancement factor (14) commission of the felony while
on probation for another offense. See T.C.A. § 40-35-114(2), 14(G) (2003) (current version at
T.C.A. § 40-35-114(1), (13)(G) (Supp. 2005)). The transcript of the guilty plea hearing as well as
the presentence report indicate that “[m]easures less restrictive than confinement have frequently or
recently been applied unsuccessfully” to Defendant. T.C.A. § 40-35-103(1)(A)-(C). She has
consistently violated her probation and repeatedly insisted on driving with a revoked license, in many
instances doing so while under the influence of an intoxicant. Defendant meets the definition of one
who should be given first priority for incarceration as set forth in Tennessee Code Annotated section
40-35-102(5). She has failed to demonstrate her suitability for alternative sentencing. We therefore
conclude that the trial court properly denied Defendant full probation or any other form of alternative
sentencing based on her extensive criminal history, her prior unsuccessful attempts at probation, and
her inability to adhere to the law by failing to attend scheduled court appearances or refrain from
operating a car on a revoked license. Defendant is not entitled to relief in this appeal.

                                          CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.

                                                       _________________________________
                                                       THOMAS T. WOODALL, JUDGE




                                                 -4-
