          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            JULY 1999 SESSION
                                                  FILED
                                                  September 3, 1999

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )
                                                 Appellate Court Clerk
                                    )
             Appellee,              )    C.C.A. No. 02C01-9812-CC-00385
                                    )
vs.                                 )    Hardin County
                                    )
JEFFERY RUSSELL UTLEY,              )    Hon. C. Creed McGinley, Judge
                                    )
             Appellant.             )    (Sentencing)



FOR THE APPELLANT:                       FOR THE APPELLEE:

GUY T. WILSON                            PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter

RICHARD W. DEBERRY                       PATRICIA C. KUSSMAN
Assistant Public Defender                Assistant Attorney General
117 North Forrest Avenue                 425 Fifth Ave. N., 2d Floor
Camden, TN 38320                         Nashville, TN 37243-0493

                                         G. ROBERT RADFORD
                                         District Attorney General
                                         111 Church Street
                                         Huntingdon, TN 38344

                                         JOHN W. OVERTON
                                         Assistant District Attorney General
                                         P.O. Box 484
                                         Savannah, TN 38372-0484




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                       OPINION



              The defendant, Jeffery Russell Utley, appeals from his sentences

imposed for arson and theft in the Hardin County Circuit Court. See Tenn. Code

Ann. §§ 39-14-301(a), -14-103 (1997). The trial court imposed concurrent three-

year sentences in the Tennessee Department of Correction. In this direct appeal,

the defendant challenges the manner of service of his sentences. After a review of

the record, the briefs of the parties, and the applicable law, we affirm the trial court.



              The facts of this case are not described in detail in the record. On

October 14, 1998, the defendant pleaded guilty to arson and theft. The guilty plea

for arson arose out of a May 29, 1998 incident in which the defendant set fire to an

apartment which caused some damage. The theft offense occurred on June 7,

1998, when the defendant and his codefendant stole a Nissan pickup truck valued

over a thousand dollars ($1000). 1



              At the time of sentencing, the 23-year old defendant had a sparse

employment history. He had been married for a few months and had two step-

children. He dropped out of high school, but he later obtained his GED. The

defendant has previous convictions for assault, aggravated assault, theft,

possession and distribution of intoxicating liquor, and DUI.




       1
         The value of the truck is not apparent from the record. This value is in
direct correlation to the classification of the offense of theft. There are several
references to the defendant being convicted of a Class C felony for theft, which
correlates to a theft of over $10,000 but less than $60,000. See Tenn. Code
Ann. § 39-14-105(4) (1997). However, the presentence report reflects the
defendant was indicted for theft over $1000 but less than $10,000, a Class D
felony. See Tenn. Code Ann. § 39-14-105(3) (1997). Neither the judgment nor
indictment for the theft offense are in the appellate record. However, this matter
is not relevant to our determination in this case.

                                           2
              The defendant contends he should have been granted some form of

alternative sentencing. 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. See 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

demonstrate the required consideration by the trial court, review of the sentence is

purely de novo. Id. If appellate review reflects the trial court properly considered

all relevant factors and its findings of fact are adequately supported by the record,

this court must 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 making its sentencing determination, the trial court, at the

conclusion of the sentencing hearing, determines the range of sentence and then

determines the specific sentence and the 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 alternatives, (4) the nature and characteristics 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. See Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-

35-103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).



              In the present case, the trial court’s sentencing determination is

                                          3
entitled to the presumption of correctness because the record reflects that it

considered the relevant sentencing principles.



              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 contrary.” Tenn. Code

Ann. § 40-35-102(6) (1997). Thus, a defendant who meets the criteria of section

40-35-102(6) is presumed eligible for alternative sentencing unless sufficient

evidence rebuts the presumption. However, offenders who meet the criteria are not

automatically entitled to such relief because sentencing issues should be

determined by the facts and circumstances presented in each case. State v. Taylor,

744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).



              The defendant, a Range I standard offender, enjoyed the presumption

of favorable candidacy for alternative sentencing for the offenses involved in this

case. See Tenn. Code Ann. § 40-35-102(6) (1997). Further, the defendant was

eligible for probation because his effective sentence was three years. See Tenn.

Code Ann. § 40-35-303(a) (1997). In determining whether to grant probation, the

judge must consider the nature and circumstances of the offense, the defendant’s

criminal record, his background and social history, his present condition, including

his physical and mental condition, the deterrent effect on other criminal activity, and

the likelihood that probation is in the best interests of both the public and the

defendant. See Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The defendant

bears the burden of establishing suitability for probation, even when the defendant

is presumed to be suitable for alternative sentencing. See Tenn. Code Ann. § 40-

35-303(a)-(b) (1997).




                                          4
              The trial court implicitly found the defendant was not amenable to

rehabilitation because measures less restrictive than confinement had proven

unsuccessful. The trial court noted the defendant’s felony record and the fact that

the defendant “failed to abide by the rules and regulations” of previous alternative

sentences. In view of these facts, the defendant failed to carry the burden of

establishing his suitability for probation. The trial court’s determination that the

defendant was not a fit candidate for probation is amply supported by the record.



              Turning to other forms of alternative sentencing, an offender is eligible

for the Community Corrections program, if he meets the following criteria:

              (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 . . .

              (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

              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)(1)-(6) (1997). Although the trial court did not make

a finding regarding whether the defendant was eligible for community corrections,

we find the defendant to be ineligible. The defendant was convicted of assault and

aggravated assault, which indicates a past pattern of violent behavior. See Tenn.

Code Ann. § 40-36-106(a)(5) (1997). Thus, the trial court did not err in denying a

community corrections sentence.


                                          5
             There is additional evidence in the record to rebut the presumption of

the defendant’s candidacy for alternative sentencing. For all the defendant’s

previous sentences, he received at least a period of probation. However, he

continued to commit offenses and his probationary sentences were revoked.

Therefore, the record supports the trial court’s finding that confinement was

necessary because “measures less restrictive than confinement have frequently .

. . been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-

103(1)(C) (1997).



             Accordingly, the evidence supports sentences of total confinement.

The judgment is affirmed.



                                         ________________________________
                                         JAMES CURWOOD WITT, JR., JUDGE



CONCUR:



_______________________________
JOSEPH M. TIPTON, JUDGE


_______________________________
JOHN EVERETT WILLIAMS, JUDGE




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