            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE

                             JULY 1997 SESSION

                                                            FILED
                                                             August 22, 1997

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk


STATE OF TENNESSEE,                  )    NO. 01C01-9607-CR-00290
                                     )
      Appellee                       )    DAVIDSON COUNTY
                                     )
V.                                   )    HON. THOMAS H. SHRIVER, JUDGE
                                     )
CHARLES E. MILLER                    )    (Sentencing)
                                     )
      Appellant                      )
                                     )


FOR THE APPELLANT                         FOR THE APPELLEE

Thomas H. Miller                          John Knox Walkup
P.O. Box 681662                           Attorney General and Reporter
Franklin, Tennessee 37068-1662
                                          Clinton J. Morgan
                                          Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, Tennessee 37243-0493

                                          Victor S. Johnson, III
                                          District Attorney General

                                          John C. Zimmerman
                                          Assistant District Attorney General

                                          Pamela Anderson
                                          Assistant District Attorney General
                                          Washington Square
                                          222 Second Avenue N., Suite 500
                                          Nashville, Tennessee 37201-1649




OPINION FILED:______
AFFIRMED AS MODIFIED


William M. Barker, Judge
                                          Opinion

       The appellant, Charles E. Miller, appeals as of right the sentences he received

following his nolo contendere pleas to one count of forgery and one count of theft. He

argues on appeal that the trial court erred in ordering his incarceration in the

Department of Correction, rather than ordering alternative sentencing. We have

reviewed the record on appeal, and finding no reversible error, we affirm the trial

court’s judgment as modified herein.

       The appellant was indicted for one count of forgery and one count of theft, both

Class D felonies. See Tenn. Code Ann. §§ 39-14-105(3) and 39-14-114(c) (1991).

Pursuant to a plea bargain agreement with the State, the appellant entered pleas of

nolo contendere to both counts in exchange for concurrent eight-year sentences, the

maximum sentence for a Range II multiple offender. The plea bargain agreement

provided that the trial court would determine the manner of service of those

sentences. Accordingly, on March 7, 1996, the trial court conducted a sentencing

hearing, following which it ordered that the appellant serve those sentences in the

Tennessee Department of Correction.

       In ordering the appellant’s incarceration, the trial court stated:

       We have two offenses that seem to be part of a pattern, a larger pattern
       involving a number of other persons. It’s not clear to me how the cases
       are interrelated or -- or who is the most culpable. In the whole thing,
       what it does appear is that [the appellant] is now thirty-seven or thirty-
       eight years old and can’t demonstrate he’s ever held a job. While his
       main criminal activity occurred mainly fifteen or so years ago,
       nevertheless, he has a record that throws him necessarily in range two.
              I guess where I fall with this is, the General is right about it, that
       the two eight year sentences, range two, concurrently, is a proper
       sentence. And so given this record, I don’t -- I really can’t much justify
       doing anything else. So that will be the sentence.

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

novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)



                                             2
(1991). The burden of showing that the sentence is improper is upon the appealing

party. Id. at Sentencing Commission Comments. This presumption, however, is

conditioned upon an 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).

        During the sentencing hearing, the assistant district attorney, without any

evidentiary support, argued that the appellant was a participant in a forgery scheme

involving several others. It is apparent that the trial court considered the State’s

argument and gave it great weight in its sentencing decision. Therefore, on appeal,

the presumption that the sentence is correct must fail, and we will conduct a de novo

review of the record. See Tenn. Code Ann. § 40-35-210(g) (Supp. 1996).1

        Our de novo review of the record on appeal convinces us that the trial court

correctly denied the appellant alternative sentencing in lieu of incarceration. The

appellant, sentenced as a Range II multiple offender, is not statutorily presumed to be

a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-

102(6) (Supp. 1996).

        We find that confinement is necessary to protect society from the appellant

because he has a long history of criminal conduct. See Tenn. Code Ann. § 40-35-

103(1)(A) (1990). The appellant’s extensive criminal record includes three armed

robbery convictions, one fraudulent use of a credit card conviction, one burglary

conviction, one escape from the Department of Correction conviction, one conviction

for possession of drug paraphernalia, two DUI convictions, and several driving

violations. We also find that measures less restrictive than confinement have been

unsuccessfully applied in the past to the appellant. See Tenn. Code Ann. § 40-35-

103(1)(C). It appears that the appellant, on two earlier occasions, was placed upon



        1
           Tennessee Code Annotated, section 40-35-210(g) provides that “[a] sentence must be based
on evidence in the record of the trial, the sentencing hearing, the presentence report, and the record of
prior fe lony conviction s filed b y the District Attorney G ene ral as requ ired by §40-35-2 02(a ).”

                                                    3
probation and in each instance his probation was subsequently revoked. It further

appears that the appellant was serving a third sentence on probation for a DUI

conviction when the present offenses occurred.

       Finally, we note that the judgment form of the trial court in the appellant’s theft

case, being case number 95-C-2130 in the Davidson County Criminal Court,

incorrectly finds the appellant guilty of forgery rather than theft, and further, the

judgment form indicates the appellant’s conviction for a Class C felony rather than a

Class D felony for which appellant was indicted. Accordingly, we direct that the trial

court enter a corrected judgment indicating that the appellant was found guilty of theft

in an amount greater than one thousand dollars ($1,000) but less than ten thousand

dollars ($10,000) and that the offense is a Class D felony.

       Based upon the foregoing, the judgment of the trial court is affirmed as

modified.




                                                   __________________________
                                                   WILLIAM M. BARKER, JUDGE


CONCUR:



__________________________
JOHN H. PEAY, JUDGE



__________________________
JERRY L. SMITH, JUDGE




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