        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                             JULY SESSION, 1997

                                                          FILED
STATE OF TENNESSEE,            )    C.C.A. NO. 02C01-9609-CR-00305
                               )                        August 22, 1997
      Appellee,                )
                               )                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
                               )    SHELBY COUNTY
VS.                            )
                               )    HON. JOSEPH B. BROWN, JR.
DAVID E. JOHNSON,              )    JUDGE
                               )
      Appellant.               )    (Sentencing)


               ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

LARRY E. FITZGERALD                 JOHN KNOX W ALKUP
22 N. Second St., Ste. 410          Attorney General and Reporter
Memphis, TN 38103
                                    GEORGIA BLYTHE FELNER
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOHN W. PIEROTTI
                                    District Attorney General

                                    KEVIN R. RARDINI
                                    Assistant District Attorney General
                                    Criminal Justice Complex, Suite 301
                                    201 Poplar Street
                                    Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                               OPINION

             The Defendant appeals as of right from the sentence imposed on

him by the trial court upon the Defendant’s plea of guilty to a charge of Class D

felony theft. The Defendant was sentenced to the minimum of two years for his

crime, with ninety days to be served in confinement and the balance to be served

on probation. On appeal, he argues that the trial court erred in denying him full

probation. We affirm the judgment of the trial court.



      W hile the record on appeal does not contain a detailed statement of the

underlying facts of the offense, it is apparent that the Defendant was involved in

the theft of a fairly substantial amount of property from his employer, with whom

he had been employed for several years, first as a salesman and then as a store

manager. At least one other employee was involved in the theft, and the illegal

activity took place over a period of about one and one half years. At the time of

the Defendant’s arrest, his base salary was approximately forty-eight thousand

dollars ($48,000) annually, and he was eligible for bonuses. At the conclusion

of the sentencing hearing, the trial court ordered that three months of his

sentence be served in confinement. The Defendant argues that he should have

received full probation.



      W hen 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 determinations made by the trial court are correct.

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



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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 a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (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 statutory mitigating or enhancement factors; (f) any statement

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

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 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 principals 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).



      A defendant 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 options in the absence of evidence to the contrary.” Tenn.

Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted

felons committing the most severe offenses, possessing criminal histories

evincing a clear disregard for the laws and m orals of society, and evincing failure

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of past efforts at rehabilitation, shall be given first priority regarding sentences

involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant

sentenced to eight years or less who is not an offender for whom incarceration

is a priority is presumed eligible for alternative sentencing unless sufficient

evidence rebuts the presumption. However, the act does not provide that all

offenders who meet the criteria are entitled to such relief; rather, it requires that

sentencing issues be determ ined by the facts and circumstances presented in

each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).



      Additionally, the principles of sentencing reflect that the sentence should

be no greater than that deserved for the offense committed and should be the

least severe measure necessary to achieve the purposes for which the sentence

is imposed. Tenn. Code Ann. § 40-35-103(3)-(4). The court should also consider

the potential for rehabilitation or treatment of the defendant in determining the

sentence alternative. Tenn. Code Ann. § 40-35-103(5).



      Because the Defendant was a standard offender convicted of a Class D

felony, he was presumed to be a favorable candidate for an alternative

sentencing option.     The trial judge gave the Defendant the benefit of this

presumption, sentencing him to split confinement. Tenn. Code Ann. § 40-35-

104(c)(5). The Defendant seeks the more favorable alternative of total probation.

Tenn. Code Ann. § 40-35-104(c)(3). As we have stated, the Defendant has the

burden of establishing suitability for full probation, even though he is entitled to

the statutory presum ption of alternative sentencing. See State v. Bingham, 910

S.W.2d 448, 455 (Tenn. Crim. App. 1995). There is no “bright line rule” for

determining when a defendant is entitled to full probation. Id. at 456. A trial

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judge is vested with a great deal of discretion on the issue of probation. Factors

to be considered are whether probation will serve the ends of justice and the best

interest of both the public and the Defendant, the nature and circumstances of

the crime, the Defendant’s potential for rehabilitation, whether full probation

would unduly depreciate the seriousness of the offense, and whether full

probation would serve the need to provide an effective deterrent. See Bingham,

910 S.W.2d at 456.



      The Defendant was twenty-nine years old and a high school graduate with

a good employment record. He was married and the father of two children. His

only record of criminal activity was an arrest for assault and battery in 1989,

which resulted in a nolle prosequi.



      It is clear from reviewing the transcript of the sentencing hearing that the

trial judge in large part based his decision of denying full probation on his

observation of the Defendant’s demeanor and the trial court’s determination that

the Defendant was untruthful in his testimony and lacked remorse for his offense.

It is also apparent that the trial judge based his decision in part upon the

credibility that the judge gave to the testimony of a co-defendant. The co-

defendant was sentenced at the same time the Defendant was sentenced,

although the record on appeal does not contain a transcript of the co-defendant’s

testimony. The trial judge clearly communicated to the Defendant the judge’s

observation of the Defendant’s credibility when he stated, “You just talked

yourself into some jail time.” The truthfulness or untruthfulness of a defendant

has long been recognized as a permissible factor for a trial judge to consider on

the issue of probation. See State v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984).

                                       -5-
A defendant’s untruthfulness and lack of remorse are obviously factors to be

considered in determining his potential for rehabilitation. The trial court is in a

much better position to determine the Defendant’s credibility and feelings of

remorse than an appellate court can determine from the record.



      Trial judges are traditionally vested with broad discretionary powers in

sentencing matters. From this record, we cannot conclude that the trial judge

erred or abused his discretion in denying this Defendant full probation. The

judgment of the trial court is affirmed.



                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




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