           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON

                   STATE OF TENNESSEE v. CARL E. COUCH

                 Direct Appeal from the Criminal Court for Hardin County
                           No. 7807 C. Creed McGinley, Judge



                   No. W1999-00645-CCA-R3-CD - Decided July 28, 2000


The defendant appeals his split sentence of 60 days confinement plus 1 year and 4 months of
probation for the offense of reckless endangerment with a deadly weapon. The defendant contends
in this appeal that the trial court erred in denying him total probation. We affirm the judgment of
the trial court.

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

RILEY, J., delivered the opinion of the court, in which TIPTON and WILLIAMS, JJ., joined.

Curtis F. Hopper, Savannah, Tennessee, for the appellant, Carl E. Couch.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; G.
Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.


                                           OPINION

                                             FACTS

        The defendant had been involved in a dispute with his brother over the sale of land and
ongoing litigation for grain payments that the defendant never received. The dispute served as a
catalyst for the events that occurred in this case.

       On December 20, 1998, the defendant was deer hunting. When he returned from hunting,
he noticed that someone had vandalized his truck. The defendant immediately assumed that the
vandal was his brother, the victim in this case.

        The defendant went to the victim’s house and, in a fit of rage, pounded on the front door
trying to get into the home. The defendant eventually broke down the front door and entered the
home with a rifle in hand.
        As the defendant entered the victim’s home, the victim locked himself inside the bathroom.
The defendant then proceeded to beat down the bathroom door with the butt of the rifle. The victim
kneeled in a corner in the bathroom begging the defendant not to kill him. Once the defendant got
into the bathroom, he severely beat the defenseless victim. At some point, the defendant was joined
by his other brother, who was also charged with this offense.

       The defendant was indicted for the offense of aggravated assault, a Class C felony. Based
upon a negotiated plea agreement, the defendant pled guilty to reckless endangerment with a deadly
weapon, a Class E felony, with an agreed sentence of 1 year and 6 months. The manner of service
was to be determined by the trial court. The defendant was given a split sentence of 60 days
confinement plus 1 year and 4 months probation. This appeal followed.


                                          SENTENCING

A.     Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. 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).

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also Ashby, 823 S.W.2d at 169.

        There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Boggs, 932 S.W.2d 467, 476-77 (Tenn. Crim. App. 1996). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case
basis, tailoring each sentence to that particular defendant based upon the facts of that case and the
circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).




                                                 -2-
B.      Full Probation v. Split Confinement

       The defendant contends that the trial court erred in failing to grant him full probation and in
sentencing him to split confinement. We disagree.

        Initially, we note the record does not contain a transcript of the guilty plea. The facts
underlying the offense were disputed at the sentencing hearing and were important to the trial court’s
sentencing determinations. In the absence of the guilty plea transcript which would provide this
court with the factual basis for the plea, we may presume the trial court’s sentencing determinations
are correct. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); State v. Coolidge, 915
S.W.2d 820, 826 -27 (Tenn. Crim. App. 1995). Nevertheless, there is a sufficient record before this
court to enable us to conclude that the trial court properly sentenced the defendant.

        The victim testified at the sentencing hearing that the defendant entered his home in a fit of
rage with a rifle in his hand, but that the defendant threw the rifle aside and proceeded to beat him
with a shower curtain rod. The defendant testified similarly. However, in a statement made to the
Sheriff’s Department by the victim shortly after the beating occurred, the victim stated that while he
kneeled in the corner of the bathroom begging the defendant not to kill him, the defendant beat him
with the gun. It is apparent that the trial judge did not find the defendant, nor the victim, to be
truthful.

        This court has stated that untruthful testimony during sentencing hearings can be the basis
for a denial of probation. Dowdy, 894 S.W.2d at 305; State v. Jenkins , 733 S.W.2d 528, 534-36
(Tenn. Crim. App. 1987). This position is predicated upon the belief that the candor of the defendant
“is probative of his attitudes towards society and prospects for rehabilitation, and is thus a relevant
factor in the sentencing process.” Dowdy, 894 S.W.2d at 306. The trial judge was in a much better
position than this court to judge the demeanor and credibility of the defendant. We yield to his
assessment of the defendant’s lack of candor.

        The trial court also noted that both the defendant and his other brother participated in the
offense; however, the defendant was the leader in the commission of the offense. See Tenn. Code
Ann. § 40-35-114(2). An enhancement factor can properly be considered in determining whether
alternative sentencing should be imposed. State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App.
1996).

         In making the sentencing determination, the trial judge also considered the need to avoid
depreciating the seriousness of the crime. See Tenn. Code Ann. § 40-35-103(1)(B). The trial judge
stated that “this is the type situation that lends itself to horrible violence; it’s a symptom of violence
in our society and cannot be overlooked in its entirety by the court.” The record readily supports the
trial judge’s observation.

        The trial court has the authority to look behind the plea agreement and consider the true
nature of the offense committed. State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983); State


                                                   -3-
v. Biggs, 769 S.W.2d 506, 507 (Tenn. Crim. App. 1988). At a minimum the facts show that the
defendant actually committed the offenses of aggravated burglary and aggravated assault, both Class
C felonies. See Tenn. Code Ann. §§ 39-14-403, 39-13-102 (a)(1)(B). We concur with the trial
court’s finding that some time of incarceration is necessary in order to avoid depreciating the
seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B).

         Although the defendant may be presumed to be a favorable candidate for alternative
sentencing, the defendant has the burden of establishing suitability for total probation. Boggs, 932
S.W.2d at 477; Tenn. Code Ann. § 40-35-303(b). The defendant has not met his burden. In view
of the findings by the trial court, we can only conclude that the denial of total probation was proper.


                                          CONCLUSION

       Based upon our review of the sentencing record, the sentence imposed by the trial court is
affirmed.




                                                 -4-
