         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 28, 2003

                   STATE OF TENNESSEE v. DAVID JENNINGS

                 Direct Appeal from the Criminal Court for Sullivan County
                          No. S46,228    Phyllis H. Miller, Judge



                                  No. E2003-00633-CCA-R3-CD
                                       December 22, 2003

The defendant, David Jennings, pled guilty to burglary, a Class D felony; theft over $1,000, a Class
D felony; vandalism, a Class D felony; simple possession of marijuana, a Class A misdemeanor; and
possession of drug paraphernalia, a Class A misdemeanor. He was sentenced as a Range I, standard
offender to an effective sentence of three years, fined a total of $400, and ordered to pay restitution.
On appeal, he argues that the trial court erred in denying alternative sentencing. Following our
review, we affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOSEPH
M. TIPTON, J., joined.

Julie A. Rice, Contract Appellate Defender (on appeal); Stephen M. Wallace, District Public
Defender; and Terry Jordan, Assistant District Public Defender (at trial), for the appellant, David
Jennings.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        At the defendant’s guilty plea hearing, the State summarized what its proof would have been
had this matter proceeded to trial:

               [T]he State’s proof would have been that in Sullivan County,
               Tennessee, on January 13th, 2002, officers from the Kingsport Police
               Department responded to Classic Pawn Shop, which is located at
               1697 Lynn Garden Drive, with reference to an alarm. Upon their
               arrival there, they found that that business, Classic Pawn Shop, had
               a large hole cut into the building. An ax was s[i]tting beside that
               hole.

                       Officers called for a K-9 Unit, and when the K-9 Unit arrived,
               they heard a noise in a bush . . . that sounded like someone running.
               They advised the people who were running to stop or the K-9 would
               be released.

                       The subjects were brought into custody. The Co-Defendant,
               Justin Sexton, was with the Defendant here today. They located
               several items . . . on the suspects that had been taken from the
               business, as well as a bag that contained some weapons and other
               items that were in excess of one thousand dollars ($1,000).

                        The damage to the building, in cutting it open, exceeded one
               thousand dollars ($1,000). During a search incident to arrest, the
               Defendant . . . had a brown plant material on his person, which was
               identified as marijuana, and he had some JOB Rolling Papers, which
               . . . could be used to consume the marijuana.

       Approximately two months prior to the defendant’s February 10, 2003, probation hearing,
he voluntarily checked himself into a drug and alcohol treatment program at Indian Path Pavilion
in Kingsport where he stayed about one week. There, he was diagnosed with a chemical imbalance
and prescribed medications.

        At the probation hearing, the defendant’s brother, Thomas Dewayne Jennings, testified that
after the defendant began taking medication for his chemical imbalance, he became “a different
person.” Prior to beginning the medication, the defendant drank all of the time and was angry;
however, now that he was on the medication, he was calm. Jennings also said he had daily contact
with the defendant and had not observed the defendant drinking in the last two months or since he
began his medication.

        Sayles Theodore Perry, an acquaintance of the defendant who had known him for nine
months, testified that he had noticed a change in the defendant’s demeanor since his return from the
hospital, specifically, the defendant was calm and “wasn’t radical like he used to be.” Perry saw the
defendant about every other day and had not observed him drinking any alcoholic beverages since
his release from the hospital. He also said that he had drunk in the defendant’s presence during the
past two months, but the defendant refrained from drinking on those occasions.




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        Larry Jennings, the defendant’s father, testified that he had daily contact with the defendant,
and the defendant had “really changed” since beginning his medication and being released from the
hospital. Specifically, he said that the defendant was no longer angry and had stopped drinking.

       The defendant testified that he and Sexton had been drinking on the day of the burglary and
admitted that he burglarized the pawnshop. Although he could not recall some of the details of the
burglary because he had a blackout, he recalled begging the officers not to release the K-9 unit,
surrendering himself, and telling Sexton, who proceeded to flee, that “there was no sense in running”
from the police. He also remembered getting a duffel bag out of Sexton’s car but denied taking
anything from the pawnshop.

         As to his prior criminal record,1 the defendant explained that his prior offenses generally
occurred when he was under the influence of alcohol. He said that he began drinking and smoking
marijuana at the age of twelve, that he had been drinking over a case of beer every day for the past
six or seven years, and that he smoked three or four joints of marijuana daily until August of 2002.
He also admitted that he continued to smoke marijuana even after he pled guilty in the present case.
He said, however, that he had not drunk any alcohol, smoked marijuana, or consumed any other
illegal drugs during the past two months.

        The defendant further testified that, since beginning his medications, his appetite had
increased, he was happier, and he was getting along with others. He said he was able to hold down
a job longer and, at the time of the hearing, was working full-time for a contractor. He asked the
court to grant him alternative sentencing so that he could work, take care of his children, and receive
counseling.

         The defendant disputed several of the entries on his presentence report. He denied being
charged with assault in 1992 and did not recall being convicted of assault in 1989. He did not recall
being convicted of disorderly conduct in March 1996 and denied that his probation was revoked in
1991 for failure to attend drug and alcohol classes.

        As for his nonpayment of previous court costs and the administrative fee, the defendant said
he did not know that the trial court had ordered him to pay the administrative fee and that he had not
paid his court costs because he did not have a good job and was trying to take care of his children.
He said he had attended only one Alcoholics Anonymous meeting since his release from the
treatment program, explaining that he did not have transportation.

        The trial court advised the defendant that if he had smoked marijuana in the last forty-five
days it would show up on a drug screen and, if he tested positive for marijuana, he could be charged



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          The defendant’s presentence repo rt showed prior co nviction s for public intoxication, two counts o f assault,
driving on a revoked license, p ossession of marijuana, disorderly conduct, and DU I, as well as a probation revocation.
He also failed to pay the $5 0 adm inistrative fee for his court-appointed attorney and o wed $2594 in court costs.

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with perjury. The defendant conferred with his counsel and then admitted he had smoked marijuana
after his release from Indian Path Pavilion.

                                           ANALYSIS

        The defendant argues that the presumption that he is a favorable candidate for alternative
sentencing was not completely rebutted because (1) although he has had several prior convictions,
they were related to his drug and alcohol addiction, for which he has recently undergone treatment,
and occurred prior to his treatment for a chemical imbalance; (2) probation would not depreciate the
seriousness of his offenses, and no proof was presented showing that “burglary is a significant
problem in Sullivan County needing deterrence”; and (3) although he has been given previous but
unsuccessful alternatives to confinement, none of these opportunities was coupled with meaningful
rehabilitation and therapy for his substance abuse problem and recently diagnosed chemical
imbalance.

       Acknowledging that the defendant was eligible for alternative sentencing, the trial court
explained why he was a poor candidate:

               Okay, you’re presumed to be a favorable candidate for alternative
               sentencing, but that can be overcome if the Court finds that you
               possess a criminal history showing a clear disregard for the laws and
               morals of society or a criminal history demonstrating a failure of past
               efforts at rehabilitation. Now, one thing that really bears on
               rehabilitation is honesty and taking responsibility for your actions.
               Okay, and you didn’t score really high on either one of those. You
               stated you sort of blacked out, then you remembered certain details of
               [the] crime. Then, you know, of the circumstances surrounding the
               crime like where the bag came from, the business about where your
               co-defendant ran to, what you did all of that, so – where you’d been,
               what you’d been doing, just riding around. That’s taking
               responsibility for the crime, credibility.

       The court noted that the defendant’s educational and criminal histories were poor and that
he had not been honest in his testimony at the probation hearing, explaining why the defendant was
being denied alternative sentencing:

               Because you weren’t honest with me here today I’m not going to give
               you alternative sentencing. It would just be a hassle from day one.
               So alternative sentencing is denied. You’re ordered to serve your
               sentence, three years Range I standard offender in the Tennessee
               Department of Corrections.




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                        Now, you know what I was going to do, I was going to put
               you in community corrections. I was going to do that and order you
               to get a full time job, order you to find suitable housing or marry your
               ex-wife or whatever, if that’s where you were going to move to.
               Now, it won’t be too much time till you’ll be getting out. And by the
               way, as part of this sentence you’re ordered to pay full restitution on
               Counts One, Two and Three.

                      Now, you know, it wouldn’t have taken much for you to have
               walked out of here today, to go down to the community corrections
               and start that. Paying a little fifty-dollar ($50) administrative fee,
               been honest with the Court, you know, and you could have done that.

         We now will review the trial court’s denial of alternative sentencing for the defendant. 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 in the absence of evidence to the contrary. Tenn.
Code Ann. § 40-35-102(6) (1997). If an offender meets the criteria under Tennessee Code
Annotated section 40-35-102(6), the trial court “must presume that he is subject to alternative
sentencing.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However, if the court is presented
with “evidence sufficient to overcome the presumption, then it may sentence the defendant to
confinement according to the statutory provision.” Id. The presumption in favor of alternative
sentencing may be overcome by facts contained in the presentence report, evidence presented by the
State, the testimony of the accused or a defense witness, or any other source, provided it is made part
of the record. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

        Evidence sufficient to overcome the presumption in favor of alternative sentencing includes
evidence showing that “[c]onfinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct; [c]onfinement 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 [m]easures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-
103(1)(A)-(C) (1997); see Ashby, 823 S.W.2d at 169.

        Tennessee Code Annotated section 40-35-303(a) provides that a defendant shall be eligible
for probation, subject to certain exceptions, if the sentence imposed upon the defendant is eight years
or less. Tenn. Code Ann. § 40-35-303(a) (1997). Even if eligible, however, the defendant is not
automatically entitled to probation as a matter of law. See id. § 40-35-303(b) (1997). The burden
is upon the defendant to show that he is a suitable candidate for probation. Id.; State v. Goode, 956
S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.
1996). In order to meet this burden, the defendant “must demonstrate that probation will ‘subserve
the ends of justice and the best interest of both the public and the defendant.’” State v. Bingham,
910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn.



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Crim. App. 1990)).

         There is no bright line rule for determining when a defendant should be granted probation.
Id. at 456. Every sentencing decision necessarily requires a case-by-case analysis. Id. Factors to
be considered include the circumstances surrounding the offense, the defendant’s criminal record,
the defendant’s social history and present condition, the need for deterrence, and the best interest of
the defendant and the public. Goode, 956 S.W.2d at 527. Another appropriate factor for a trial court
to consider in determining whether to grant probation is a defendant’s credibility or lack thereof, as
this reflects on the defendant’s potential for rehabilitation. Id.

        The defendant’s presentence report shows that he had a number of convictions since his first
adult conviction, which was for simple assault and imposed on April 18, 1989, when he was 19. For
that conviction, he was sentenced to eleven months, twenty-nine days, with all but ten days
suspended. He next was placed on probation on November 14, 1989, when he was sentenced to
eleven months, twenty-nine days for DUI, with all but four days suspended. On February 10, 1991,
he was sentenced to eleven months, twenty-nine days, with all but forty-five days suspended for DUI
and six months for driving on a revoked license, with all but two days suspended. On November 14,
1991, he was sentenced to eleven months, twenty-nine days, with all but one day suspended, for
possession of a prohibited weapon. He was sentenced on March 7, 1996, to eleven months, twenty-
nine days probation for possession of marijuana and, on August 6, 1996, was sentenced to six
months probation, apparently after service of twenty days, for driving on a revoked license. On
October 10, 1996, he was sentenced to eleven months, twenty-nine days, with all but sixteen days
suspended, for two counts of simple assault. Thus, it appears that the defendant previously had been
placed on probation at least six times. Alternative sentencing may be denied based upon the need
“to protect society by restraining a defendant who has a long history of criminal conduct” and when
less restrictive measures have frequently been applied unsuccessfully. Tenn. Code Ann. § 40-35-
103(1)(A), (C). Given the defendant’s history of being placed on probation and the trial court’s
concluding that, at the probation hearing, he was not testifying honestly or taking responsibility for
his actions, the record fully supports the denial of alternative sentencing.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgments of the trial court.



                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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