         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 10, 2002

               STATE OF TENNESSEE v. SHERRY L. WILLIAMS

                 Direct Appeal from the Criminal Court for Sullivan County
                 Nos. S44,925-931 S45,851 S45,852  Phyllis H Miller, Judge



                                 No. E2002-01288-CCA-R3-CD
                                      February 13, 2003

The defendant, Sherry L. Williams, pleaded guilty to 20 forgery charges and three charges of
criminal impersonation, with a recommended effective sentence of seven years. The plea agreement
provided that the trial court would determine the manner of service of the sentence. After a
sentencing hearing, the trial court denied any form of alternative sentencing and ordered
incarceration in the Department of Correction. From this determination, the defendant appeals.
Finding no error, we affirm the judgment of the trial court.


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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and JERRY L. SMITH J., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); Stephen M. Wallace, District Public
Defender; and Leslie S. Hale, Assistant District Public Defender (at trial), for the Appellant, Sherry
L. Williams.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and William Harper, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

               In April 2001, the Sullivan County Grand Jury returned a presentment against Sherry
L. Williams charging 25 counts of forgery, Tenn. Code Ann. § 39-14-114 (1997), and a one-count
indictment charging criminal impersonation, id. § 39-16-301 (Supp. 2002). The following month,
the defendant was indicted on eight additional counts of forgery. Two new criminal impersonation
charges and one charge of identity theft, id. § 39-14-150 (Supp. 2002), were returned by indictment
in June, and on January 30, 2002, a final group of seven forgery charges were reported out by the
grand jury.
                Negotiations between the defendant, who was a Range I standard offender, and the
state resulted in the following plea agreement submitted to the trial court for approval.

               S44,925: Guilty pleas to five counts of forgery, with an agreed
               sentence of one year on each count to be served concurrently to each
               other; dismissal of 20 counts of forgery.

               S44,926: Guilty plea to criminal impersonation, with an agreed
               sentence of six months to be served concurrently to sentences in
               S44,925.

               S44,927: Guilty pleas to three counts of forgery, with an agreed
               sentence of one year on each count to be served concurrently to each
               other but consecutively to sentences in S44,925.

               S44,928: Guilty plea to one count of forgery, with an agreed sentence
               of one year to be served consecutively to sentences in S44,925 and
               S44,927.

               S44929: Guilty pleas to four counts of forgery, with an agreed
               sentence of two years on each count to be served concurrently to each
               other but consecutively to sentences in S44,925, S44,927, and S44,
               928.

               S44930 & S44931: Guilty pleas to two counts of criminal
               impersonation, with an agreed sentence of six months to be served
               concurrently to each other and concurrently to sentences in S44,925.

               S45,851: Guilty pleas to six counts of forgery, with an agreed
               sentence of two years on each count to be served concurrently to each
               other but consecutively to sentences in S44,925, S44,927, S44, 928,
               and S44,929.

               S45,852: Guilty plea to one count of forgery, with a recommended
               sentence of two years to be served concurrently to the sentences in
               S45, 851.

                 Pursuant to the plea agreement, the defendant would receive an effective sentence of
seven years and would pay restitution. The manner of service of the sentences was reserved for the
trial court’s determination.

                We glean from the transcript of the guilty plea submission and the presentence
investigation report, which are included in the appellate record, that sometime in 1994, the defendant


                                                 -2-
used the name, social security number, and other personal information of her former sister-in-law,
Anita Cox, to open a charge account with Sears. The defendant, however, gave her own address as
the billing address for the charge card. The defendant forged Ms. Cox’s name to numerous charge
slips, totaling at least $2,843. The defendant’s fraudulent scheme went undetected until 1998 when
the defendant’s husband found mail and credit card receipts in their bedroom.

              The first criminal impersonation charge involved an automobile accident in May
2000. When a police officer arrived at the scene to investigate, the defendant, who was intoxicated,
produced a driver’s license in the name of Brenda Light. Ms. Light is the defendant’s sister.

               The next three forgery charges stemmed from the theft of personal checks from the
residence of James Hale. The defendant forged Mr. Hale’s name to the checks, which totaled
approximately $600, and passed them at Wal-Mart and Food City in Kingsport.

              Checks stolen from Linda Carr were the basis for five additional forgery charges. The
defendant forged Ms. Carr’s name to checks totaling approximately $390; the defendant passed the
checks at Food City and Ingles Food Store.

               The second criminal impersonation charge arose when the defendant identified herself
as Donna Bishop to an officer who was investigating suspicious late-night activity at the Elks’ Lodge
on December 7, 2000. Less than a month later, the defendant identified herself as Kristen Graybeal
to an officer on duty at Riverview Apartments in Kingsport. Ms. Graybeal is the defendant’s
mother, and the third criminal impersonation charge related to the Graybeal identification.

               In case number S45,851, the defendant stole checks from Ray Harkleroad in March
2001, made them payable to either herself or White’s Fresh Foods, forged Mr. Harkleroad’s
signature, and passed them at various local businesses. The Harkleroad forged checks totaled
slightly more than $1,000.

                The final forgery charge, in case number S45,852, related to a $400 check forged and
uttered by the defendant, also in March 2001. This check was stolen from Elizabeth Smith’s purse,
and the defendant cashed the check at First Tennessee Bank in Kingsport.

                The trial court conducted a sentencing hearing on May 16, 2002 and ordered
incarcerative sentencing. The defendant has appealed the application of two enhancement factors
(gratifying the desire for pleasure or excitement and abuse of private trust) and the manner of service
of her sentences. At the sentencing hearing, the defendant testified in support of her bid for
probation or other alternative sentencing. She explained that her involvement in criminal activity
derived from her drug usage, particularly crack cocaine. Even prior to using drugs, the defendant
said that she had been abused in early childhood by her grandfather and uncle. She believed that she
could benefit from counseling to deal with the childhood abuse, and if granted probation, the
defendant told the court that she would do everything she could to follow up with counseling.



                                                 -3-
                The defendant testified about in-patient drug rehabilitation programs that she had
attended prior to being arrested. The defendant said that she had also been attending an alcohol and
drug class that was available at the Sullivan County Jail. The defendant is divorced and has two
minor children. Recently, her former husband had petitioned for full custody of the children, and
one of the reasons the defendant gave for seeking a non-incarcerative sentence was to maintain
custody of the children. If released, the defendant said that she could live with her mother and father.
Her mother, the defendant testified, had been checking the employment section of the newspaper to
help the defendant obtain employment.

                On cross-examination, the defendant said that, prior to being arrested and
incarcerated, she had been receiving $562 monthly in Social Security disability benefits. According
to the defendant, she could still receive disability benefits if she were employed, depending on how
much she earned. The defendant’s last employment was working part-time at McDonald’s. The
defendant admitted that, in addition to crack cocaine, she had taken Lortab “pain killers, used
marijuana, and eat[en] acid.”

               The court separately questioned the defendant and elicited that the defendant had
access to Mr. Hale’s house and his checks because she was dating Mr. Hale’s son. The defendant
was married at the time. The defendant described Mr. Harkleroad as a “friend” who was “like a
daddy” to her. She testified that she met Mr. Harkleroad when she worked at Hardee’s where Mr.
Harkleroad was a regular customer. Their friendship developed to the point that the defendant was
cleaning his house. The theft of Ms. Smith’s check occurred while she and Ms. Smith were staying
at a “safe house,” used as a shelter for abused women. The defendant agreed with the court’s
assessment that she had been stealing and writing worthless checks since approximately 1995.

                 Based upon the evidence before it, the trial court found the existence of four
enhancing factors. First, the defendant has a previous history of criminal convictions or behavior.
See Tenn. Code Ann. § 40-35-114(2) (Supp. 2002).1 Second, the defendant committed the forgeries
to gratify her desire for pleasure or excitement. Id. § 40-35-114(8) (Supp. 2002). Third, the
defendant has a previous history of unwillingness to comply with the conditions of a sentence
involving release into the community. Id. § 40-35-114(9) (Supp. 2002). Fourth, the defendant
abused a position of private trust. Id. § 40-35-114(16) (Supp. 2002). The trial court placed great
weight on the last factor. As for mitigating factors, the trial court found but assigned slight weight
to the fact that the defendant’s conduct neither caused nor threatened serious bodily injury. See id.
§ 40-35-113(1) (1997). The trial court also stated that it gave the defendant “quite a bit of credit”
for her self-rehabilitative efforts relative to participation in drug treatment.




        1
            Effective July 4, 2002, the “enhancement factors” code section 40-35-114 was revised to add a new
enhancement factor. 2002 Public Acts, ch. 849. The new enhancement factor, that the “offense was an act of terrorism,
or was related to an act o f terrorism ,” was d esignated enhancement factor (1), and former enhancement factors (1)
through (22) were redesignated (2) through (23). Tenn. Code Ann. § 40-35 -114 (Supp. 200 2).

                                                        -4-
                 Based on the relevant circumstances, which the trial court enumerated to include a
criminal history, illegal drug use demonstrating a clear disregard for society’s laws and morals, the
failure of past efforts at rehabilitation, “reprehensible” stealing from an employer and a boyfriend’s
father, and the need for deterrence, the trial court concluded that the defendant had not carried her
burden of demonstrating that full probation would serve the ends of justice, the community, the
defendant’s family, or the defendant herself. As for other sentencing options, the only additional
finding that the trial court articulated was that “there is no community corrections program in this
county for women that I find would meet your needs as well as incarceration in the Department of
Corrections.”

                 When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This
presumption 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). “The burden of showing that the sentence is improper is upon the
appellant.” Id. In the event the record fails to mirror the required consideration by the trial, review
of the sentence proceeds on purely a de novo basis. Id. If, however, appellate review reflects that
the trial court took into account all relevant factors and its findings of fact find adequate support in
the record, this court mut affirm the sentence, “even if we would have preferred a different result.”
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                In fashioning an appropriate sentence, the trial court, at the conclusion of the
sentencing hearing, is to determine the range of sentence and then determine the specific sentence
and propriety of sentencing alternatives by considering (1) the evidence, if any, received at the trial
and the sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments
as to sentencing alternative, (4) the nature and circumstances of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant’s behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b) (Supp. 2002), -
103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

                 Even though the defendant agreed to a sentence of seven years, she complains that
the trial court erred in applying sentence enhancement factors. Because these factors are available
for consideration of alternative sentencing, as well as in determining sentence length, we review
these claims. See Tenn. Code Ann. § 40-35-210-(b)(5) (Supp. 2002).

               Turning to the enhancement factors applied in this case, we agree with the trial court
regarding the defendant’s previous history of criminal convictions or behavior, see Tenn. Code Ann.
§ 40-35-114(2) (Supp. 2002), and regarding the defendant’s previous history of unwillingness to
comply with the conditions of a sentence involving release into the community, see id. § 40-35-
114(9) (Supp. 2002). The presentence report supports these enhancement factors, as it reflects prior
drug and “worthless check” convictions and the defendant’s failure to “report[ ] for probation” in


                                                  -5-
connection with two previous “worthless check” convictions; the defendant, moreover, does not
dispute these facts.

               We part company with the trial court, however, on its determination that the forgeries
were committed to gratify the defendant’s desire for pleasure or excitement. See id. § 40-35-114(8)
(Supp. 2002). The only basis that the trial court mentioned was the commission of the forgeries “so
[she] could buy drugs and get high.” The pleasure-or-excitement enhancement factor calls into
question a defendant’s motive for committing a crime. See State v. Kissinger, 922 S.W.2d 482, 490
(Tenn. 1996). “While . . . pleasure or excitement may be of a sexual nature, it does not have to be.”
Id. Accordingly, it is appropriate to use factor (8) for sentence enhancement related to offenses that
do not have a sexual content. Id. The Kissinger court illustrated the point in the following fashion.

               An offender who steals because of a pleasure experienced in “not
               getting caught;” an arsonist who burns houses due to the excitement
               that watching fire brings; an assaulter who breaks an arm to hear the
               victim beg for mercy – all may have their sentences enhanced under
               factor [(8)] providing the state produces proof of the factor.

Id. Although the defendant’s drug dependency in this case undoubtedly prompted the forgeries, drug
addiction, without more, is not inextricably tied to pleasure or excitement. We do not gainsay that
a person might, for example, thrive on the excitement of imitating signatures, but we are not
confronted with evidence to establish such pleasure or excitement. See State v. John Robert Benton,
No. E2000-03194-CCA-R3-CD, slip op. at 4-5 (Tenn. Crim. App., Knoxville, July 20, 2001) (court
misapplied pleasure or excitement enhancement factor; defendant, convicted of vandalism and
burglary, testified the incident was “alcohol-related”).

                 We also part company with the trial court’s determination that the defendant abused
a position of private trust. See Tenn. Code Ann. § 40-35-114(8) (Supp. 2002). None of the forgeries
involved an adult perpetrator and a minor victim. When the victims, as in this case, are adults, they
“are generally held to have reasonable judgment and, unlike minors, can generally function
reasonably independently.” State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999).

                Application of the private trust factor “is a task that must be undertaken on a
case-by-case basis.” State v. Poole, 945 S.W.2d 93, 96 (Tenn.1 997). The sentencing court is
directed to examine “the nature of the relationship” and whether that relationship “promoted
confidence, reliability, or faith.” Kissinger, 922 S.W.2d at 488. Such a relationship “usually
includes a degree of vulnerability,” and “[i]t is the exploitation of this vulnerability to achieve
criminal purposes which is deemed more blameworthy and thus justifies application of the
enhancement factor.” Gutierrez, 5 S.W.3d at 646. The factor should be applied, the Gutierrez court
explained, “only where there is evidence that the nature of the relationship between the perpetrator
and the adult victim caused the victim to be particularly vulnerable. If such a relationship or ‘private
trust’ is shown, the State must then prove that the perpetrator abused that relationship in committing



                                                  -6-
the crime.” Id. (footnote omitted) (mere fact that defendant and adult victim lived together
insufficient for application of private trust enhancement factor).

                The trial court was understandably troubled by the defendant’s exploitation of the
victims in this case; however, in our opinion the proof falls short of demonstrating abuse of a
position of private trust. There is no indication that the defendant’s access to Mr. Hale’s residence
was obtained by exploiting any relationship with Mr. Hale; that the defendant was “dating” Mr.
Hale’s son, without more, does not prove a particular vulnerability of either the son or the father
sufficient to apply this enhancement factor. See State v. Bobby Garner, No., M1999-01427-CCA-
R3-CD, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 9, 2000) (defendant married to victim’s
daughter at time of burglary; beyond the “familial relationship,” no evidence of relationship that
promoted confidence, reliability, or faith).

               As for Mr. Harkleroad, no evidence was offered that his judgment was impaired or
that he could not function reasonably independently. Even though the defendant was cleaning his
house, no details about that arrangement are in the record. Nothing more being shown, Mr.
Harkleroad cannot, from an evidentiary standpoint, be classified as a particularly vulnerable victim.

                 In summary, we conclude that the only applicable enhancement factors in this case
are (2) and (9). Again, however, as part of the defendant’s plea agreement, she received minimum
sentences within the range, which was one to two years, on nine of the forgery convictions. For the
other eleven forgery convictions, she received an agreed sentence of two years. Considering that
enhancement factors (2) and (9) were appropriately applied in this case, in our opinion the two-year
forgery sentences were altogether proper and suited to the defendant’s criminal conduct, and to the
extent that the trial judge considered factors (2) and (9) in determining alternative sentencing issues,
she was justified in doing so. See State v. James Anthony Cline, No. E2001-02011-CCA-R3-CD,
slip op. at (Tenn. Crim App., Knoxville, Aug. 6, 2002 (when determining if alternative sentence
would be appropriate, trial court may apply relevant mitigating and enhancement factors).

                Additionally, the defendant argues that alternative sentencing was warranted in her
cases, rather than incarceration. The defendant was sentenced as a Standard Range I Offender, and
the forgery convictions were Class E felonies. An alternative sentence is any sentence that does not
involve total confinement. See State v. Adrianne Elizabeth Noles, No. W2002-01558-CCA-R3-CD,
slip op. at 3 (Tenn. Crim. App., Jackson, Dec. 12, 2002); see generally State v. Fields, 40 S.W.3d
435 (Tenn. 2001). 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) (1997). Our
sentencing scheme also provides that “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 sentences
involving incarceration.” Id. § 40-35-102(5) (1997). Consequently, a defendant who meets the
above criteria is presumed eligible for alternative sentencing unless sufficient evidence rebuts the
presumption. The Act, we hasten to add, does not provide that all offenders who meet the criteria


                                                  -7-
are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and
circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.
1987).

               The presumption of favorable candidacy for alternative sentencing may be rebutted
by “evidence to the contrary.” Fields, 40 S.W.3d at 440.

               Guidance as to what constitutes evidence to the contrary may be
               found in the following sentencing considerations contained in
               Tennessee Code Annotated section 40-35-103(1) (1997):

               (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 especially 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.

Id.

                The defendant, a Range I offender, enjoyed the presumption of favorable candidacy
for alternative sentencing for her Class E felonies. See Tenn. Code Ann. § 40-35-102(6) (1997).
Moreover, she was eligible for probation. See id. § 40-35-303(a) (Supp. 2002). Determining
entitlement to full probation, however, necessarily requires a separate inquiry from that of
determining whether a defendant is entitled to an alternative sentence. See State v. Bingham, 910
S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds by State v. Hooper, 29
S.W.3d 1 (Tenn. 2000). Unlike the presumption of favorable candidacy for alternative sentencing
in general, a defendant bears the burden of demonstrating suitability for full probation. See Tenn.
Code Ann. § 40-35-303(b) (Supp. 2002); State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim.
App.1999); Bingham, 910 S.W.2d at 455-56. To carry that burden, the defendant must show that
probation will “subserve the ends of justice and the best interest of both the public and the
defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1999), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                 Last, we note that the defendant met all of the minimum criteria for participation in
a community corrections program and conceivably could be eligible for placement on the basis that
her drug abuse is a “special need.” See Tenn. Code Ann. § 40-36-106(a), (c) (Supp. 2002).
Eligibility for the program, nevertheless, does not translate into automatic entitlement to such relief.
See Taylor, 744 S.W.2d at 922.



                                                  -8-
               The trial court did not expressly declare whether the presumption of the defendant’s
favorable candidacy for alternative sentencing had been rebutted, although it acknowledged that the
presumption applied. The trial court did find that the defendant had not carried her burden of
demonstrating that full probation would serve the interests of justice. The trial court also found that
the defendant’s needs would best be served by incarceration before being released into the
community as opposed to placement in a community corrections program as an alternative sentence.

                We agree with the trial court that the defendant did not demonstrate entitlement to
full probation. The only reasons that the defendant’s counsel offered were that probation would give
the defendant a chance to prove that she could change, that the defendant had already been
incarcerated for 211 days, that the defendant was willing to undergo counseling for drug abuse and
her childhood physical abuse, and that she was willing to get a job and pay restitution and court
costs. Under these circumstances, we cannot quarrel with the trial court’s refusal to grant probation.

                Although the trial court did not explicitly rule whether the presumption of favorable
candidacy for alternative sentencing had been rebutted, it did cite to multiple negative aspects of the
defendant’s behavior. From the trial court’s remarks, we discern that the trial court was troubled by
other criminal offenses that the defendant had committed, by the defendant’s failure to report for
probation in 1999 on two “worthless check” charges, by the commission of new offenses while on
probation, by her poor social and work history, by using her children as an excuse for more lenient
sentencing, by the defendant’s sustained intent to violate the law as evidenced by the length of time
that the offenses had been ongoing and the efforts to conceal the forgeries, by the lack of “genuine
sincere remorse” and failure to comply with prior court orders, and by the failure to accept
responsibility for her wrongdoing.

               The considerations that gave the trial court pause are sufficient to rebut the favorable
candidacy presumption. These considerations, we note, are mirrored in the presentence report.
Furthermore, the presentence report supports the trial court’s evaluation of the defendant’s lack of
remorse and failure to accept responsibility. Kingsport Detective Mark Mason advised the
presentence investigator that the defendant has a “criminal reputation in the community” and that
she was not cooperative during the forgery investigations. In her statement given to the presentence
investigator and included in the report, the defendant maintained that she did not forge the credit card
purchases involving her former sister-in-law. Rather, the defendant claimed that the sister-in-law
“gave” the credit cards to the defendant to purchase things for the defendant’s children.

                Lack of truthfulness is an appropriate and important consideration in determining
whether an offender should be granted an alternative sentence. State v. Zeolia, 928 S.W.2d 457, 463
(Tenn. Crim. App. 1996); State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim. App. 1992). Lack
of truthfulness is probative on the issue of amenability to rehabilitation. State v. Neely, 678 S.W.2d
48, 49 (Tenn. 1984). Also highly probative in this regard are the defendant’s failure to report for
probation in 1999 on two “worthless check” charges and the commission of new forgery offenses
while on probation. Evidence of the presumption of favorable candidacy for an alternative sentence



                                                  -9-
includes the frequent or recent unsuccessful application of “[m]easures less restrictive than
confinement.” Tenn. Code Ann. § 40-35-103(1)(C) (1997).

                 Amenability to rehabilitation is likewise critical to selection of community corrections
as an alternative sentence. State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997).
“[G]iven their ability to review the offender’s demeanor and characteristics first hand, trial courts
are in the best position to ascertain an offender’s amenability to a community corrections program.”
Id. Because of the trial courts’ wide discretion, our court will not disturb the decision to grant or
deny a community corrections sentence absent a clear abuse of discretion. Id.

                  The trial court’s remarks at sentencing implicitly acknowledged that the defendant
satisfied all of the following minimum criteria for participation in a community corrections program:

                (1) Persons who, without this option, would be incarcerated in a
                correctional institution;

                (2) Persons who are convicted of property-related, or
                drug/alcohol-related felony offenses or other felony offenses not
                involving crimes against the person as provided in title 39, chapter
                13, parts 1-5;

                (3) Persons who are convicted of nonviolent felony offenses;

                (4) Persons who are convicted of felony offenses in which the use or
                possession of a weapon was not involved;

                (5) Persons who do not demonstrate a present or past pattern of
                behavior indicating violence; [and]

                (6) Persons who do not demonstrate a pattern of committing violent
                offenses[.]

Tenn. Code Ann. § 40-36-106(a) (Supp. 2002). Even so, the law is settled that an offender meeting
the requirements for eligibility is not automatically entitled to such relief. See Ball, 973 S.W.2d at
294; Taylor, 744 S.W.2d at 922. Rather, the statute provides that the criteria shall be interpreted as
“minimum state standards, guiding the determination of eligibility of offenders” for the program.
Tenn. Code Ann. § 40-36-106(d) (Supp. 2002). The trial court, in our opinion, regarded the
defendant’s attitude and mendacity as unsuitable for a community-based alternative to incarceration,
particularly because the defendant previously had failed to report for probation on other convictions.
Commitment to personal betterment is a key ingredient for successful completion of a community
corrections program, and the trial court was in the best position to gauge this critical factor.




                                                  -10-
               The trial court referred to the defendant’s “needs” and to “need[ing] help” with her
“drug abuse,” suggesting that the trial court also evaluated the defendant’s suitability for community
corrections pursuant to the “special needs” access point to the program, which provides,

               Felony offenders not otherwise eligible under subsection (a), and who
               would be usually considered unfit for probation due to histories of
               chronic alcohol, drug abuse, or mental health problems, but whose
               special needs are treatable and could be served best in the community
               rather than in a correctional institution, may be considered eligible for
               punishment in the community under the provisions of this chapter.

Id. § 40-36-106(C) (Supp. 2002).

                The trial court stated that there was “no community corrections program in this county
for women that I find would meet your needs as well as incarceration in the Department of
Corrections.” The court added, “You not only need help with your drug abuse, you need help with
training for employment and getting some order in your life before you get back out in the
community, trying to have interaction with you[r] children and other members of the community.”
Based upon all the evidence before it, the trial court, it seems to us, viewed the defendant as
requiring a highly structured environment, such as full incarceration would provide, to bring focus
and order to the defendant’s life. The court obviously did not consider a community-based
alternative sentence as meeting either the defendant’s long-standing problems or society’s needs.
The defendant, moreover, did not show why or how her needs could better be served by remaining
in the community. We cannot say that the trial court abused its considerable discretion in denying
community corrections sentencing.

                 All things considered, we conclude that the trial court was warranted in rejecting all
forms of alternative sentencing short of total confinement for this defendant. For these reasons, we
affirm the trial court’s judgment sentencing the defendant to seven years in confinement as a Range
I standard offender.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                 -11-
