             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                             OCTOBER 1999 SESSION



STATE OF TENNESSEE,                 )
                                    )      C.C.A. No. W1999-01760-CCA-R3-CD
      Appellee,                     )
                                    )      Shelby County
v.
CARLOS A. CURRY,
                                    )
                                    )
                                    )
                                                               FILED
                                           Honorable Carolyn Wade Blackett, Judge

                                    )      (Sentencing)
      Appellant.                    )                          December 16, 1999

                                                               Cecil Crowson, Jr.
                                                              Appellate Court Clerk



FOR THE APPELLANT:                         FOR THE APPELLEE:

MARK A. MESLER                             PAUL G. SUMMERS
Ballin, Ballin & Fishman                   Attorney General & Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103                          J. ROSS DYER
                                           Assistant Attorney General
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           WILLIAM L. GIBBONS
                                           District Attorney General

                                           MICHAEL H. LEAVITT
                                           Assistant District Attorney General
                                           201 Poplar Avenue, Suite 301
                                           Memphis, TN 38103-1947




OPINION FILED: __________________________________________


AFFIRMED


ALAN E. GLENN, JUDGE




                                   OPINION

      The defendant, Carlos A. Curry, was indicted by the Shelby County Grand Jury and

charged with evading arrest in a motor vehicle and possession of a handgun in a public

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place. Pursuant to a negotiated plea agreement, he pleaded guilty to both of these

offenses, receiving sentences of six months for evading arrest and thirty days for

possession of a handgun in a public place. The trial court denied his petition to suspend
these sentences, a decision which he timely appealed. Based upon our review, we affirm

the judgment of the trial court.



                                          FACTS

       During the hearing on the defendant’s petition for suspension of sentence, it was

made clear that there was substantial variance between the defendant’s version of the
incident which resulted in his arrest and that of the police officers. According to the

assistant district attorney representing the State of Tennessee, the officers reported that

the following occurred [Questions by General Leavitt]:


                     At a high rate of speed. You turned onto I-40. The officers
              initiated the emergency equipment and siren. You accelerated
              to approximately eighty miles an hour, then slowed to thirty
              miles an hour and pulled to the emergency lane but still did not
              stop. You continued for approximately one mile nearly causing
              an accident at Perkins on the entrance ramp.

                  They observed Mr. Austin throwing baggies from the
              passenger window, and observed you and Mr. Austin making
              movements and passing a silver object back and forth.

                    When finally pulled to a stop and both of you bailed out.
              Defendant was apprehended after a short chase. The
              defendant while running pulled the pistol from his waistband
              and threw it to the ground. The weapon was loaded with one
              in the chamber and five in the magazine.
                   You were arrested. The gun was recovered. And they
              went back and they found two plastic bags with marijuana
              residue, one in the vehicle and one on the ground beside the
              vehicle. Both you and Mr. Austin said that the gun belonged
              to the other person.


       In contrast, the defendant gave the following explanation of the incident:



                   Me and Jack, we left the house and we got off on Perkins.
              The undercover cop he was trailing us behind. He pulled us
              over at the Perkins exit.

                    I got out, went to the car. I came back to my car. Then at
              the time I found out that Jack had a pistol. So I knew that I’m
              a felon already on a pistol charge, so I told him, I said you are
              going to take that charge and he said no, he’s not going to take
              the charge. So I jumped out of the car and I ran.


       According to the presentence report, the defendant was 25 years old, married, with

two children, and employed for approximately the past six months as a forklift driver. He


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was a graduate of Byhalia, Mississippi, High School. He had two prior convictions. In

1994, he was convicted of attempt to commit a felony, for which he had received a two-

year sentence at the Shelby County Correctional Center. He was convicted in 1994 of a
“weapons offense” and sentenced to a six months sentence. He did not seek probation

for these sentences which were served concurrently. According to the defendant, he was

attending a heating and air conditioning school at the time of the hearing.


      In denying the petition for suspension of sentence, the trial court stated:

                   Mr. Curry, would you please stand up. The Court has
             looked at your criminal history, and you do have several other
             offenses that you’ve been convicted of. In addition to that, the
             Court does not believe that you have been very candid with the
             Court in terms of what exactly happened out there, whether or
             not it was your gun or someone else’s gun, what you were
             exactly doing.
                  It seems very unlikely that undercover cops would just pull
             over a car for no reason. And it seems even more unlikely that
             you would take the gun out of your car and run with it. I don’t
             know where you thought you were running to and how you
             thought you could outrun a car. But that’s neither here nor
             there.

                  You should know that understand that today is your day
             in Court. And today was your day to establish to the Court that
             you were a worthy probationary candidate, which you didn’t do.



      In response to the request of defense counsel that the defendant be allowed to

serve his sentence on the weekends, the court stated:

                  The only reason why I won’t is because I don’t believe
             what he said, not for one minute, and I don’t think you did
             either. And that was basically based upon the fact that it was
             not only you, Mr. Mesler, but Mr. Leavitt didn’t believe it, I didn’t
             believe it, and today was his day.

                  I am not going to sit here -- I don’t think it is my role to sit
             here and pull the truth out of people. I’ve done it a couple of
             times already today, but I’m not going to do it any more. So
             the answer to that is no.


                                         ANALYSIS

       Since the defendant has challenged the manner of service of his sentence, we must

conduct a de novo review, presuming that the determinations made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d). The burden is on the defendant to show that

confinement is improper. State v. Bult, 989 S.W.2d 730, 734 (Tenn. Crim. App. 1998),

perm. app. denied (Tenn. 1999). Even if we applied a presumption favoring probation, as
the defendant urges, he would not be helped. Here, he has two prior convictions, one of

which was a felony, for which he served concurrent sentences at the Shelby County


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Correctional Center. Additionally, we note that his version of the incident which resulted

in his arrest was vastly different from that set out by the arresting officers. The comments

by the trial court made it clear that the defendant’s version of the events was not
believable. The court specifically told the defendant that his petition for suspended

sentence was being denied because of his prior convictions and his lack of candor while

testifying during the petition hearing.


        In denying probation, it is clear that the trial court properly considered the relevant

factors, including the defendant’s criminal record. State v. Black, 924 S.W.2d 912, 917

(Tenn. Crim. App. 1995); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995).

Additionally, it was proper for the court to consider the defendant’s lack of truthfulness.

“The defendant’s truthfulness at a trial or sentencing hearing is a factor that may be
considered. A trial judge may deny probation on this ground.” State v. Dykes, 803 S.W.2d

250, 259-260 (Tenn. Crim. App. 1990).



        The defendant has urged that we should apply the sentencing considerations of

Tenn. Code Ann. § 40-35-102(6) to this matter and consider alternative sentencing options.

However, even following such an application, the defendant’s case would fail because of

his prior record of convictions and lack of candor:



               The trial court denied alternative sentencing based upon the
               defendant’s lengthy history of criminal behavior, his
               unsuccessful completion of less restrictive measures, and his
               lack of truthfulness. See T.C.A. § 40-35-103(1)(A) and (C);
               State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim. App.
               1992) (lack of candor may be considered in denying alternative
               sentencing). These are all proper considerations in the
               determination of alternative sentencing and reflect negatively
               on the defendant’s potential for rehabilitation. We agree with
               the trial court’s determinations and affirm the trial court’s denial
               of alternative sentencing.
State v. Anderson, 985 S.W.2d 9, 21 (Tenn. Crim. App. 1997).



        Applying the holding in Anderson to this matter, we likewise agree with the decision

of the trial court that the defendant was not an appropriate candidate for alternative
sentencing.



                                        CONCLUSION
        Based upon the foregoing authorities and reasoning, we affirm the judgment of the

trial court.


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                             _____________________________________
                             ALAN E. GLENN, JUDGE



CONCUR:



__________________________________
JOHN H. PEAY, JUDGE



__________________________________
NORMA McGEE OGLE, JUDGE




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