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

                STATE OF TENNESSEE v. ARTHUR J. HOLMES

                     Appeal from the Criminal Court for Sullivan County
                      Nos. S43, 976 & S43, 978  R. Jerry Beck, Judge



                                 No. E2001-01440-CCA-R3-CD
                                         July 30, 2002

The Defendant, Arthur J. Holmes, pled guilty to three counts of theft under $500, class A
misdemeanors; two counts of theft over $500, class E felonies; six counts of forgery, class D and E
felonies; and four counts of identity theft, class D felonies. The Defendant’s plea agreement
provided for an effective ten year sentence as a Range II, multiple offender. After a hearing on the
manner in which the Defendant would serve his sentence, the trial court denied an alternative
sentence and ordered the Defendant to serve his sentence in the Department of Correction. The
Defendant now appeals as of right. We affirm the trial court’s judgment.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

Douglas P. Jones, Elizabethton, Tennessee, for the appellant, Arthur Joe Holmes.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Greeley Wells, District Attorney General; and Joseph E. Perrin, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

       The trial judge ordered that the Defendant’s effective ten year sentence for his fourteen
convictions be served in the Department of Correction. The Defendant contends that the trial court
erred by refusing to place him in the community corrections program for at least a portion of his
sentence. We respectfully disagree.

       When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. See 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
        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); State v. Lane, 3 S.W.3d 456, 462
(Tenn. 1999). Guidance regarding what constitutes “evidence to the contrary” which would rebut
the presumption of alternative sentencing can be found in Tennessee Code Annotated section 40-35-
103(1), which sets forth 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[.]

See also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 170 (Tenn.
1991).

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. § 40-35-103(5).

        The Community Corrections Act was meant to provide an alternative means of punishment
for “selected, nonviolent felony offenders . . . , thereby reserving secure confinement facilities for


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violent felony offenders.” Tenn. Code Ann. § 40-36-103(1); see also State v. Ball, 973 S.W.2d 288,
294 (Tenn. Crim. App. 1998). Pursuant to statute, persons who satisfy all of the following minimum
criteria are eligible 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). Additionally, persons who do not otherwise satisfy the minimum
criteria and who would usually be considered unfit for probation due to histories of chronic alcohol
abuse, drug abuse, or mental health problems, but whose special needs are treatable and could be
served best in the community may be considered eligible for participation in a community
corrections program. See id. § 40-36-106(c).

       However, even though an offender meets the requirements for eligibility, he or she is not
automatically entitled to such relief. See Ball, 973 S.W.2d at 294; State v. Taylor, 744 S.W.2d 919,
922 (Tenn. Crim. App. 1987). Rather, the statute provides that the criteria shall be interpreted as
minimum standards to guide a trial court’s determination of whether that offender is eligible for
community corrections. See Tenn. Code Ann. § 40-36-106(d).

        The proof adduced at the sentencing hearing established that the Defendant has a long history
of psychiatric problems and drug abuse. He has been treated numerous times for his mental
illnesses. He also has a lengthy and significant history of non-violent criminal offenses. The trial
court recognized that the Defendant was eligible for community corrections, but further found that
he had previously been placed on probation and on community corrections, yet continued his pattern
of criminal activity after completing those sentences. The record also established that the Defendant
committed some of the instant offenses while on bond, and committed other offenses while on bond
for the instant offenses.

        The trial court found that the Defendant “has previously been put on Probation, previously
been on Community Corrections, previously received [medical] treatment, but he’s still continued
his criminal conduct. And in this case it was a substantial number of cases.” The trial court further
found that the Defendant’s instant crimes “involve fairly complicated types of schemes or acts to
make the crimes happen. This indicates a certain, at least criminal deviancy and ability to commit
crime.” Based on these findings, the trial court determined “that Community Corrections, since it’s
previously been tried, been previous treatments, and he’s continued the criminal conduct, that [sic]



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cannot see that the community would benefit from further Community Corrections.” Accordingly,
the trial court ordered the Defendant to serve his sentences in the Department of Correction.

         A criminal defendant challenging a trial court’s sentencing decision has the burden of
establishing that his or her sentence is improper. See Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; see also Ashby, 823 S.W.2d at 169. The Defendant has not met his burden
in this case. The proof adduced at the sentencing hearing established that the Defendant has a long
history of criminal conduct, rendering confinement necessary to protect society from additional
criminal behavior by the Defendant, and that measures less restrictive than confinement, including
probation and community corrections, were repeatedly and unsuccessfully applied to the Defendant.
Either of these circumstances is sufficient to justify a sentence of incarceration. See Tenn. Code
Ann. § 40-35-103(1)(A), (C).

       The judgment of the trial court is affirmed.

                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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