            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                               AT KNOXVILLE                      July 30, 1999

                                                               Cecil Crowson, Jr.
                            MARCH 1999 SESSION                 Appellate C ourt
                                                                   Clerk



STATE OF TENNESSEE,           *    C.C.A. # 03C01-9803-CC-00114

      Appellee,               *    BLOUNT COUNTY

VS.                           *    Hon. D. Kelly Thomas, Jr., Judge

CHRIS RUBLE TEFFETELLER, *         (Aggravated Burglary and Theft)

      Appellant.              *




For Appellant:                     For Appellee:

Julie A. Martin, Attorney          John Knox Walkup
P.O. Box 426                       Attorney General and Reporter
Knoxville, TN 37901-0426
(on appeal)                        Clinton J. Morgan
                                   425 Fifth Avenue North
Mack Garner                        Cordell Hull Building, Second Floor
District Public Defender           Nashville, TN 37243-0493
419 High Street
Maryville, TN 37804                Charles Carpenter
                                   Assistant District Attorney General
                                   Blount County Courthouse
                                   363 Court Street
                                   Maryville, TN 37804




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

               The defendant, Chris Ruble Teffeteller, entered pleas of guilt to

aggravated burglary and theft in excess of $1,000.00. The trial court imposed a

Range I, four-year sentence for aggravated burglary and a Range I, three-year

sentence for the theft. After serving six months in jail, the defendant was allowed to

spend the remainder of each of the sentences in the community corrections

program.



               In this appeal of right, the single issue presented by the defendant is

whether the trial court erred by refusing to grant the entire sentence to be served in

the community corrections program. We find no error and affirm the judgment of the

trial court.



               On or about April 26 of 1997, the defendant entered the residence of

the victim, Lillard Earle Ailor, and stole furniture, appliances, tools, building supplies,

a bicycle, and a boat trailer. The victim saw the defendant leaving the scene and

noted his license plate number. Afterward, the defendant turned himself in to the

authorities.



               While admitting his crimes, the defendant blamed his actions on

serious marital difficulties arising from his drug and alcohol addiction. He explained

that he was not living at home, had no place to go, and was stealing in order to

support his addiction.



               At the time of the sentencing hearing, the defendant, age thirty-three,

was married and had two children. While he had dropped out of high school, he

had obtained a GED and had worked primarily in construction. Since his arrest, the


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defendant had obtained a commercial driver's license and had developed plans to

become a truck driver. He had a history of heavy drinking since he was a teenager

and usually consumed about one case of beer per day. By the time of these

offenses, his cocaine habit cost between $400.00 and $500.00 per week. Theft was

his source of income. After the commission of these crimes, the defendant

voluntarily sought inpatient treatment for his addiction. A drug screen about a week

before the sentencing hearing had yielded negative results.



              The defendant had several prior offenses, many of which were drug

and alcohol related. His record included public intoxication, three convictions for

driving under the influence, possession of marijuana, driving on a revoked license,

harassment, two misdemeanor thefts, and two third degree burglaries. Since his

arrest, a domestic altercation with his wife resulted in his guilty plea and a fine. The

trial court, in pertinent part, ruled as follows in ordering sentences one year above

the minimum and denying immediate probation or community corrections:

              The enhancing factor that I used in raising this from the
              minimum was the record of past convictions and criminal
              activity. I considered the fact that this didn't involve any
              personal injury in mitigation....
                      In deciding whether it should be served on release
              or in confinement, split confinement, periodic
              confinement, Community Corrections, [or] Department of
              Correction[], I looked at the nature of the offense, looked
              at your record, listened to your testimony, [and]
              considered the fact that you've been back in treatment
              since these happened back in April of [19]97.
                      I have tried to evaluate your situation as far as
              rehabilitation and likelihood of re-offending. That's a
              mixed bag. You went through treatment, that is in your
              favor. You've been working, that is in your favor. You
              committed a misdemeanor assault several months down
              the road. That's definitely not in your favor. Your history
              is not in your favor.



              Because the defendant's criminal behavior had extended over a period

of fourteen to fifteen years, the trial court determined that a sentence absent some

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period of confinement would depreciate the seriousness of the offenses. A six-

month sentence to jail followed by a community corrections program was deemed to

be the appropriate alternative sentence.



              The defendant now argues that because he had been candid about his

involvement in the offenses and had taken positive steps towards his rehabilitation

from his addiction, the trial court should have granted immediate release on

community corrections. He insists that he can stay out of trouble so long as he

remains on the "sobriety wagon." He argues that jail overcrowding is rampant and

that should have been given more consideration by the trial judge.



              When a challenge is made to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a "de novo review ... with a

presumption that the determinations made by the court from which the appeal is

taken are correct." Tenn. Code Ann. § 40-35-401(d). 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 Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210.


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              In calculating the sentence for felony convictions committed before

July 1, 1995, the presumptive sentence is the minimum within the range if there are

no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c) (1990)

(amended July 1, 1995 to provide that the presumptive sentence for a Class A

felony as the midpoint in the range). If there are enhancement factors but no

mitigating factors, the trial court may set the sentence above the minimum. Tenn.

Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating

factors requires an assignment of relative weight for the enhancement factors as a

means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence

may then be reduced within the range by any weight assigned to the mitigating

factors present. Id.



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are, of course, presumed to be favorable candidates "for alternative

sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. §

40-35-102(6).



              Among the factors applicable to consideration for an alternative

sentence are the circumstances of the offense, the defendant's criminal record,

social history and present condition, and the deterrent effect upon and the best

interest of the defendant. State v. Grear, 568 S.W.2d 285 (Tenn. 1978). The

purpose of the Community Corrections Act of 1985 was to provide an alternative

means of punishment for "selected, nonviolent felony offenders in front-end

community based alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The

community corrections sentence provides a desired degree of flexibility that may be

both beneficial to the defendant yet serve legitimate societal aims. State v. Griffith,


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787 S.W.2d 340, 342 (Tenn. 1990). That the defendant meets the minimum

requirements of the Community Corrections Act of 1985, however, does not mean

that he is entitled to be sentenced under the act as a matter of law or right. State v.

Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are

eligible for community corrections:

              (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 2 [repealed], parts 1-3 and
              5-7 or 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;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



              In Ashby, our supreme court encouraged the grant of considerable

discretionary authority to our trial courts in matters such as these. 823 S.W.2d at

171. See State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be

bottomed upon its own facts." Taylor, 744 S.W.2d at 922. "It is not the policy or

purpose of this court to place trial judges in a judicial straight-jacket in this or any

other area, and we are always reluctant to interfere with their traditional discretionary

powers." Ashby, 823 S.W.2d at 171.



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               Here, the trial court carefully considered each and every factor before

imposing a sentence. In our view, the sentence is fair and just under the

circumstances and gives recognition to the defendant's efforts towards

rehabilitation. A jail term of six months under these circumstances is entirely

appropriate.



               Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
Cornelia A. Clark, Special Judge




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