         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs June 19, 2002

              STATE OF TENNESSEE v. DELANEY E. MARCUM

                Direct Appeal from the Circuit Court for Williamson County
                         No. I-201-79    Donald P. Harris, Judge



                     No. M2001-02257-CCA-R3-CD - Filed July 18, 2002


The Appellant, Delaney E. Marcum, appeals from the sentencing decision of the Williamson County
Circuit Court. Marcum entered guilty pleas to one count of aggravated burglary, a class C felony,
and one count of theft of property over $1,000.00, a class D felony. Under the terms of the
agreement, Marcum received concurrent sentences of five years for aggravated burglary and four
years for theft. Following a sentencing hearing, the trial court ordered that Marcum’s sentences be
served in the Department of Correction and, additionally, he was ordered to pay restitution on both
counts. On appeal, Marcum contends that the trial court erred in (1) not sentencing him to probation
or any other alternative to incarceration, and (2) ordering restitution in conjunction with total
confinement. Finding no error, the judgment of the Williamson County Circuit Court is affirmed.

                Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.
WEDEMEYER , JJ., joined.

John H. Henderson, District Public Defender, Franklin, Tennessee, for the Appellant, Delaney E.
Marcum.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin
Dixon, Jr., Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee Dryer,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                      Factual Background

       On December 27, 2000, the Appellant unlawfully entered the home of James and Deborah
Lenahan in Brentwood, Tennessee. While inside the residence, the Appellant stole various items,
including coin collections, socket wrenches, and three revolvers. On March 12, 2001, a Williamson
County Grand Jury indicted the Appellant for aggravated burglary and for theft of property over
$10,000.00 but less than $60,000.00. The theft charge was later amended when the value of the
missing property was determined to be less than $10,000.00. On May 14, 2001, in a negotiated plea
agreement, the Appellant pled guilty to aggravated burglary and theft of property over $1,000.00 but
less than $10,000.00. The Appellant, a Range I standard offender, received concurrent sentences of
five years and four years respectively, and he was also ordered to pay restitution on both counts.

                                            ANALYSIS

                                       I. Total Confinement

         The Appellant asserts that “[u]nder the facts and circumstances of the case, the trial court
erred in ordering that the Defendant serve his concurrent sentences in counts 1 and 2 in the
Department of Correction and not on probation or on any other alternative to incarceration.” When
the sentencing court properly considers the relevant sentencing considerations, this court conducts
a de novo review with the presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166, 169, (Tenn. 1991).
Because the Appellant was convicted of class C and D felonies, he is entitled to the presumption that
he is a favorable candidate for alternative sentencing. See Tenn. Code Ann.§ 40-35-102(6) (1997).
We note, however, that “the determination of whether the Appellant is entitled to an alternative
sentence and whether the Appellant is entitled to full probation are different inquiries.” State v.
Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1996). Where a
defendant is entitled to the statutory presumption of alternative sentencing, the State has the burden
of overcoming the presumption of evidence to the contrary. State v. Bingham, 910 S.W.2d 448, 455
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995), overruled on other grounds, State v.
Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). Conversely, the defendant has the burden of establishing his
suitability for full probation, even if the defendant is entitled to the statutory presumption of
alternative sentencing. Id.; see Boggs, 932 S.W.2d at 477.

         When imposing a sentence of total confinement, the trial court should base its decision on
the following considerations: (A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct; (B) Confinement is necessary to avoid
depreciating the seriousness of the offense or confinement is particularly suited to provide an
effective deterrence to others likely to commit similar offenses; or (C) Measures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the defendant. Tenn. Code
Ann. § 40-35-103(1) (1997). Additionally, the potential or lack of potential for rehabilitation of a
defendant should be considered in determining whether he or she should be granted an alternative
sentence. Tenn. Code Ann. § 40-35-103(5).

        Upon de novo review, we find that the Appellant falls into all three categories listed in Tenn.
Code Ann. § 40-35-103(1). The Appellant has a long history of criminal conduct, including two
misdemeanors, simple assault and escape from a work release program, and three felonies, assault
with intent to commit robbery, passing worthless checks over $1,000.00, and possession of weapon


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by a convicted felon. The Appellant also has an extensive juvenile record.1 The Appellant was
permitted into the Lenahans’ home for business purposes. He violated this trust relationship. See
State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996) (permitting use of enhancing factor
as relevant to § 40-35-103(1) considerations). Alternative sentencing would depreciate the
seriousness of the Appellant’s actions by reducing the severity of the crimes committed.
Furthermore, measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the Appellant. Indeed, as previously noted, the Appellant was convicted of escape
after being granted work release. The record amply supports the trial court’s decision in denying all
forms of alternative sentencing, including probation. This issue is without merit.

                                                     II. Restitution

         The Appellant, relying on State v. Davis, 940 S.W.2d 558, 562 (Tenn. 1997), contends that
“[u]nder the facts and circumstances of the case, the trial court erred in ordering that the Defendant
pay restitution in addition to a term in the Department of Correction.” However, the Appellant’s
argument is misplaced because current law provides that an offender may be ordered to pay
restitution in conjunction with a sentence of total confinement. State v. John Clark Garrison, No.
E1999-00121-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Nov. 6, 2000), perm. to appeal denied,
(Tenn. 2001). Tennessee Code Annotated § 40-35-104(c) provides:

         (c) The following sentencing alternatives in any appropriate combination are
         authorized for defendants otherwise eligible under this chapter:
         ...

                   (2) Payment of restitution to the victim or victims either alone or in
                   addition to any other sentence authorized by this subsection; [or]
                   ...

                   (6) A sentence of continuous confinement to be served in a local jail
                   or workhouse. . . .

After enactment of this statute on July 1, 1996, the Appellant can clearly be ordered to pay restitution
in conjunction with a sentence of total confinement. Accordingly, we find that this issue is without
merit and affirm the judgment of the trial court.




         1
          Although the plea ag reem ent provided the Appellant was to be sentenced as a standard offender, the pre-
sentence repo rt reflects that the Ap pellan t qualified for sentencing as a mu ltiple offend er and, in fact, was prev iously
sentenced as su ch by the Davidso n Coun ty Crimin al Co urt.

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                                        CONCLUSION

       Based upon the foregoing reasons, we find that the trial court did not err in ordering total
confinement and restitution. The judgment of the Williamson County Circuit Court is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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