           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                             AT KNOXVILLE                      June 10, 1999

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

STATE OF TENNESSEE,                  )      C.C.A. 03C01-9808-CC-00298
                                     )      BLOUNT COUNTY CIRCUIT
                                     )
             Appellee,                )     Hon. D. Kelly Thomas, Jr.,
                                     )      Judge
                                     )
                                     )
vs.                                  )      (SENTENCING)
                                     )      NO. C-10602, 10603
                                     )
THOMAS I. FREEMAN, JR.,              )
                                     )
             Appellant.              )



FOR THE APPELLANT:                          FOR THE APPELLEE:


MACK GARNER                                 PAUL G. SUMMERS
District Public Defender                    Attorney General & Reporter
419 High Street
Maryville, TN 37804                         TODD R. KELLEY
                                            Assistant Attorney General
                                            425 Fifth Avenue North
                                            2nd Floor, Cordell Hull Bldg.
                                            Nashville, TN 37243

                                            MICHAEL L. FLYNN
                                            District Attorney General

                                            KIRK ANDREWS
                                            Assistant District Attorney
                                            363 Court Square
                                            Maryville, TN 37804


OPINION FILED:____________________


AFFIRMED


CORNELIA A. CLARK
Special Judge
                                       OPINION

        The appellant, Thomas I. Freeman, Jr., appeals as of right the sentencing

decision of the Blount County Circuit Court. The appellant pled guilty to one count of

aggravated burglary, a Class C felony, and one count of theft under $500.00, a Class

A misdemeanor. The length and manner of service of sentence were determined by

the trial court at a sentencing hearing. The court sentenced the appellant to four

years six months for aggravated burglary and eleven months twenty-nine days at 70%

for theft. The sentences were run concurrently. The appellant was required to serve

one year in the county jail followed by three years six months of supervised probation,

including one year of intensive probation. After a review of the record, we affirm the

judgment of the trial court.

       The appellant has a long history of drinking and marijuana usage. According

to appellant, on July 1, 1997, he was at the home of Tony McCormick and his wife.

The three individuals drank a case and a half of beer and smoked “quite a bit” of

marijuana. At approximately 2:00 or 3:00 a.m. they ran out of beer and marijuana.

Tony McCormick suggested that they break into the house owned by his next-door

neighbor. The two men went to the house, got in through an unlocked window, and

took a television and a radio. They took these items to a man named John, sold

them, and used the fifty dollars they received to buy more beer and marijuana. They

then drank the beer and smoked the marijuana. McCormick was not prosecuted for

the offense.

       Review by this court of the length, range, or manner of service of a sentence is

de novo with a presumption that the determination made by the trial court is correct.

Tenn. Code Ann. §40-35-401(d). This presumption only applies, however, if the

record demonstrates that the trial court properly considered relevant sentencing

principles. State v. Ashby, 823 S.W. 2d 166, 169 (Tenn. 1991). In the case before

us, the trial court correctly applied those principles. Thus, the presumption applies.

       In making our review, this court must consider the following: the evidence, if

any, received at the trial and the sentencing hearing; the information contained in the

pre-sentence report; the arguments of counsel; the nature and characteristics of the

offense; any mitigating or enhancement factors; the appellant’s statements; and the

                                            2

appellant’s potential or lack of potential for rehabilitation. Tenn. Code Ann. §§40-35-

102-103(5), -210(b); See also State v. Byrd, 861 S.W. 2d, 377, 379
(Tenn. Crim. App. 1993). The burden is on the appellant to show that the sentence

imposed was improper. Sentencing Commission Comments, Tenn. Code Ann. §40-

35-401(d).

       Appellant first challenges the length of his sentence for aggravated burglary, a

Class C felony. 1 He was a Range I offender and thus, was subject to a minimum

sentence of three years and a maximum sentence of six years. The trial court found

that two enhancement factors existed: (1) the appellant has a previous history of

criminal convictions or criminal behavior, Tenn. Code Ann. §40-35-114(1); and, (2) the

appellant has a previous history of unwillingness to comply with the conditions of a

sentence involving release into the community, Tenn. Code Ann. §40-35-114(8). The

appellant had previously been convicted of a weapons offense, disorderly conduct,

assault, public intoxication, and shoplifting. He also admitted that he knowingly

violated the probation imposed in a previous sentence by smoking marijuana, and that

he continues to smoke marijuana, even since the entry of his plea of guilty. He failed a

drug screen conducted between the entry of his plea and the date of his sentencing

hearing, while he remained free on bond.

       Both enhancement factors have been appropriately applied in this case.

Having found the existence of two enhancement factors and no mitigating factors the

trial court’s imposition of a sentence of four years, six months, is justified.

       The appellant also contends that the trial court erroneously required him to

serve a portion of his sentence in confinement. The determination of whether the

appellant is entitled to an alternative sentence and whether the appellant is entitled to

complete probation are different inquiries and require different burdens of proof.

State v. Boggs, 932 S.W. 2d 467, 477 (Tenn. Crim. App. 1996). Thus, even though

the appellant, a Class C felony offender, is presumed to be a favorable candidate for

alternative sentencing, Tenn. Code Ann. §40-35-102(6), he has the burden of

establishing his suitability for total probation. Tenn. Code Ann. §40-35-303(b). To



meet that burden the appellant must establish that probation will “subserve the ends

of justice and the best interest of both the public and the appellant.” State v.



1
  The appellant’s brief does not address the length of his sentence for the
misdemeanor offense of theft under $500. Since that sentence was run concurrent to
the felony sentence, and since no argument about it has been made, the court
assumes no appeal of this sentence is being raised. In any event, for the same
reasons discussed above, the sentence is justified.
                                           3
Bingham, 910 S.W. 2d 448, 456 (Tenn. Crim. App. 1995)(quoting State v. Dykes, 803

S.W. 2d 250, 259 (Tenn. Crim. App. 1990)).

       In determining one’s suitability for probation the court may consider the

circumstances of the offense, the appellant’s potential or lack of potential for

rehabilitation, whether full probation will unduly depreciate the seriousness of the

offense, and whether a sentence other than f ull probation would provide an effective

deterrent to others likely to commit similar crimes. Tenn. Code Ann. §40-35-

210(b)(4), -103(5), -103(1)(B); Bingham, 910 S.W. 2d at 456 (citations omitted).

       The trial court found that incarceration was necessary in this case to avoid

depreciating the seriousness of this offense, which involved an evening drinking beer

and smoking marijuana. The appellant broke into a home at about 3:00 a.m. He and

a friend took a television and radio from the house and sold the merchandise, using

the money to buy more beer and marijuana. The court noted that the appellant has a

prior history of criminal conduct, including assaultive and weapons offenses. He also

evidenced a lack of potential for rehabilitation by his continued drug use, even since

his guilty plea, and his spotty work history. We conclude that the appellant has failed

to establish his entitlement to total probation.

       Accordingly, the judgment of the trial court is affirmed.




                                                 _________________________________
                                                 CORNELIA A. CLARK
                                                 SPECIAL JUDGE



_______________________________
GARY R. WADE
JUDGE



_______________________________
NORMA M. OGLE
JUDGE

                                             4



          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE

                                 MARCH 1999 SESSION
STATE OF TENNESSEE                         )      C.C.A. 03C01-9808-CC-00298
                                           )      BLOUNT COUNTY CIRCUIT
                                           )
              Appellee,                     )     Hon. D. Kelly Thomas, Jr.,
                                           )      Judge
                                           )
                                           )
vs.                                        )      (SENTENCING)
                                           )      NO. C-10602, 10603
                                           )
THOMAS I. FREEMAN, JR.,                    )
                                           )
              Appellant.                   )




                                   JUDGMENT

       Came the appellant, Thomas I. Freeman, Jr., represented by counsel
and also came the attorney general on behalf of the State, and this case was
heard on the record on appeal from the Circuit Court of Blount County; and
upon consideration thereof, this court is of the opinion that there is no
reversible error in the judgment of the trial court.

       Our opinion is hereby incorporated in this judgment as if set out
verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of
the trial court is AFFIRMED, and the case is remanded to the Circuit Court of
Blount County for execution of the judgment of that court and for collection of
costs accrued below.

        In the event the defendant indicates an intention to file an application for
permission to appeal to the Tennessee Supreme Court, he may be admitted to
bail in the additional amount of $2,500.00, for a total bond amount of
$12,500.00 with sufficient sureties to be approved by the clerk of the trial court
pending filing and disposition of said application. In default of such bond, she
shall be remanded to the custody of the Sheriff of Blount County.

      It appears that the appellant is indigent. Costs of this appeal will be
paid by the State of Tennessee.

                                           PER CURIAM

                                           Gary R. Wade, Judge
                                           Norma M. Ogle, Judge
                                           Cornelia A. Clark, Special Judge
