        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 1, 2011

            STATE OF TENNESSEE v. BARRON LAMAR CURRIE

              Direct Appeal from the Circuit Court for Madison County
                        No. 09-754    Donald H. Allen, Judge


                No. W2010-01620-CCA-R3-CD - Filed August 25, 2011


The Defendant-Appellant, Barron Lamar Currie, entered a guilty plea to aggravated burglary,
a Class C felony, and theft of property of property over $500, a Class E felony. Pursuant to
his plea agreement, the Defendant-Appellant received an effective sentence of eight years
with the manner of service to be determined by the trial court. The trial court ordered the
Defendant-Appellant to serve the eight-year term in confinement. The Defendant-
Appellant’s sole issue for our review is whether the trial court erred in denying any form of
alternative sentencing. Finding no error, we affirm the judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
R OBERT W. W EDEMEYER, JJ., joined.

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant Public
Defender, Jackson, Tennessee, for the Defendant-Appellant, Barron Lamar Currie.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

       At the guilty plea colloquy, the State presented the following recitation of the evidence
in support of the convictions:

       [I]n August of 2009, a neighbor to Mr. Chad Graves observed an individual
       taking property out of Mr. Graves’ residence and confronted that individual
       and ... got the tag number. They dispatched deputies. The Tennessee Highway
       Patrol Officers came into contact with Mr. Currie, stopped that vehicle and
       came into contact with him. The victim then identified or came home and
       noticed that there was [sic] some things gone from the residence and some
       damage to the residence. Mr. Currie was interviewed by law enforcement and
       he did admit, Your Honor, to going into this residence and taking possession
       over these items. Thus[,] the State would show at trial that on or about August
       6th , 2009 that Mr. Currie did unlawfully enter the habitation of Chad Graves
       without his effective consent and with intent to commit theft of property and
       that he did knowingly exercise control over property being a television and
       miscellaneous items over the value of $500 without the effective consent of
       Chad Graves, the owner, with intent to deprive the owner of the property.

       At the sentencing hearing, the Defendant-Appellant agreed to pay restitution to the
victim in the amount of $999.98. The State also offered the pre-sentence report into evidence
as an exhibit. The Defendant-Appellant, age 29, testified that he lived in Madison County
with his fianceé. He agreed that he was guilty of the charged offenses and provided law
enforcement with a statement of admission when he was arrested. He told the court that he
had previously served six years of a ten-year sentence in prison. Since his release from
prison, the Defendant-Appellant had been charged with a seat-belt violation and driving
without a license offense. He explained why he committed the instant offense:

       At the time, a lot of things were going on in my life. Due to the fact of a lack
       of work, a lot of pressure at home, bills. I figured by going into the
       gentlemen’s house and taking a couple of things, I could sell them and get
       money to pay a couple of bills. Since then, I’m sorry. I regret it. First of all,
       I take full responsibility for what I did.

        The Defendant-Appellant told the court that he was “[i]n the process of getting
married” and had obtained two jobs. The Defendant-Appellant was employed as a head cook
at a local restaurant, working forty hours a week. He also detailed cars six days a week.
Given how much he worked, the Defendant-Appellant believed he would be too busy to
commit any crime. Two letters of recommendation from the Defendant-Appellant’s
employers were admitted into evidence. The Defendant-Appellant asked the court for “a
second-chance.”

       The State advised the trial court that the Defendant-Appellant had a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate sentencing range. The State agreed to seek a Range II sentence, rather than
Range III or career offender, based on the Defendant-Appellant’s admission and entry of the
guilty plea in this case. The State advocated for an effective sentence of eight years to be

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served in confinement.

       The trial court ordered the Defendant-Appellant to serve his sentence in confinement.

                                        ANALYSIS

       The Defendant-Appellant argues that the trial court erred in denying any form of
alternative sentencing. The State maintains the trial court properly sentenced the Defendant-
Appellant.

       The standard of review for challenges to the manner in which the trial court imposed
sentence is de novo upon the record with a presumption of correctness as to the trial court’s
determination. T.C.A. § 40-35-401(d) (2006). However, the presumption of correctness
does not apply when the appealing party demonstrates that the trial court failed to
affirmatively consider the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991). Only upon such a showing will our
review become purely de novo. Id.

       In our de novo review, we must consider (1) the evidence, if any, received at the trial
and 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, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his or her own behalf, (7) any statistical information as to sentencing
practices for similar offenses in the state, and (8) the potential for rehabilitation with
treatment. T.C.A. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at 168; State v.
Moss, 727 S.W .2d 229, 236-37 (Tenn. 1986).

        A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. See T.C.A. § 40-35-303(a) (2006). The trial court shall
automatically consider probation as a sentencing alternative for eligible defendants; however,
the defendant bears the burden of proving his or her suitability for probation. T.C.A. §
40-35-303(b) (2006). No criminal defendant is automatically entitled to probation as a matter
of law. Id., Sentencing Commission Comments; see State v. Davis, 940 S.W.2d 558, 559
(Tenn. 1997). Rather, the defendant must demonstrate that probation would serve the ends
of justice and the best interests of both the public and the defendant. See State v. Souder,
105 S.W.3d 602, 607 (Tenn. Crim. App.2002) (citation omitted).

      The trial court should consider the nature and circumstances of the offense, the
defendant’s criminal record, the defendant’s background and social history, his present

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condition, including physical and mental condition, and the deterrent effect on the defendant
when considering probation. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim.
App.1999). The court should also consider the potential for rehabilitation or treatment of the
defendant in determining the appropriate sentence. See T.C.A. § 40-35-103(5) (2006).
Moreover, our supreme court has held that “truthfulness is certainly a factor which the court
may consider in deciding whether to grant or deny probation.” State v. Bunch, 646 S.W.2d
158, 160 (Tenn. 1983).

        In deciding whether to order confinement, the trial court should consider whether (1)
confinement is necessary to protect society by restraining a defendant who has a long history
of criminal conduct; (2) confinement is necessary to avoid depreciating the seriousness of
the offense, or confinement is particularly suited to provide an effective deterrence to people
likely to commit similar offenses; or (3) measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant.                 T.C.A. §
40-35-103(1)(A)-(C) (2006). The trial court should also consider the mitigating and
enhancement factors set forth in Tennessee Code Annotated sections 40-35-113 and -114
(2006). T.C.A. § 40-35-210(b)(5) (2006); State v. Boston, 938 S.W.2d 435, 438 (Tenn.
Crim. App. 1996). Finally, the sentence imposed should be the least severe measure
necessary to achieve its purpose. T.C.A. § 40-35-103(4) (2006).

       The Defendant-Appellant does not argue, nor do we find that the trial court failed to
affirmatively consider the sentencing principles and all relevant facts and circumstances in
this case. Therefore, the trial court’s sentencing determination is presumed correct. The
Defendant-Appellant argues that he was entitled to alternative sentencing because he had
obtained two jobs, intended to get married, demonstrated remorse for his actions, and was
willing to pay restitution to the victim. In sentencing the Defendant-Appellant, the record
shows that the trial court considered all of these factors. However, the court detailed the
Defendant-Appellant’s extensive criminal history which consisted of seven prior convictions
for aggravated robbery, a conviction for burglary other than a habitation, four felony
convictions for theft, two misdemeanor convictions for theft, two felony vandalism
convictions, and one misdemeanor vandalism conviction. The trial court then stated:

              I’ve considered the defendant’s physical and mental conditions and
       apparently no physical or mental problems at all. That certainly is to his
       benefit. Of course, certainly I have to consider his criminal history which as
       I said earlier is very extensive history. I certainly considered the facts and
       circumstances surrounding this offenses [sic]. This involves again a home
       invasion which is a very serious problem within this community. As I said
       before in other cases, you know, Madison County has just suffered a rash of
       home burglaries over the last couple of years and probably at an all time record

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       high number of burglaries being committed within this community. I do take
       that into consideration. Obviously the Court has to consider the defendant’s
       potential for rehabilitation. Unfortunately in this case, the defendant has
       indicated or has proven over the last several years that he cannot be
       rehabilitated. He has been placed on alternative sentencing and unfortunately
       he was never able to successfully complete those sentences. I have to also
       consider the interests of society and whether or not society should be protected
       from this defendant who in my opinion would probably have continued
       committing criminal acts had he not been caught and arrested in this case. I
       do consider that. Also the Court considers that measures less restrictive than
       confinement in Mr. Currie’s case have been tried without success.

               In this particular case, I do consider that Mr. Currie based upon this
       prior record I talked about is simply not an appropriate candidate for any type
       of probation.

        Based on the aforementioned facts, law, and analysis, the trial court properly denied
alternative sentencing. Currie has not met his burden on appeal of showing that his sentence
of confinement was improper, and therefore, he is not entitled to relief.

                                      CONCLUSION

        We conclude that the trial court properly denied alternative sentencing in this case,
thereby requiring the Defendant-Appellant to serve an effective eight-year sentence, pursuant
to the terms of his guilty plea agreement. Accordingly, the judgments of the trial court are
affirmed.

                                                   ___________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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