            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1998           FILED
                                                         October 15, 1998

                                                      Cecil Crowson, Jr.
STATE OF TENNESSEE,              )                       Appellate C ourt Clerk
                                 )   No. 03C01-9710-CR-00433
      Appellee                   )
                                 )   CAMPBELL COUNTY
vs.                              )
                                 )   Hon. Lee Asbury, Judge
JOHNNY LEE DAVIS,                )
                                 )   (Sentencing - Denial of Alternative)
      Appellant                  )



For the Appellant:                   For the Appellee:

Martha Yoakum                        John Knox Walkup
District Public Defender             Attorney General and Reporter

Charles Herman                       Todd R. Kelley
Asst. District Public Defender       Assistant Attorney General
                                     Criminal Justice Division
                                     425 Fifth Avenue North
                                     2d Floor, Cordell Hull Building
                                     Nashville, TN 37243-0493


                                     William Paul Phillips
                                     District Attorney General
                                     P. O. Box 323
                                     Jacksboro, TN 37757




OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                                 OPINION



       The appellant, Johnny Lee Davis, 1 appeals the sentencing decision of the

Campbell County Criminal Court following his guilty pleas to two counts of sexual

battery, one count of arson, and one count of theft of property over one thousand

dollars. Under the terms of the plea agreement, the appellant agreed to an effective

fifteen year sentence, however, he remained eligible for alternative sentencing as no

single conviction was in excess of eight years. The plea agreement further provided

that the manner of service of the sentences was to be submitted to the trial court for

determination. The trial court ordered total confinement. The appellant appeals

contending that the trial court erred in failing to grant alternative sentences.



       After review of the record, we affirm the judgment of the trial court pursuant to

Rule 20, Tenn. Ct. Crim. App. R.




       This appeal originates from cases, C-8805 and C-9105, which were

consolidated for sentencing purposes. In October of 1995, the appellant was

charged, by indictment, in case C-8805, with one count of rape of a child, a class A

felony, and one count of aggravated sexual battery, a class B felony. The incident

leading to these charges occurred between January and November 21, 1993, and

involved the appellant’s step-daughter. The appellant agreed to plead guilty to two

counts of the lesser offense of sexual battery, a class E felony. The agreement

provided that the appellant would be sentenced, as a range III persistent offender, to

five years on one count and, as a range II multiple offender, to four years on the

remaining count. It was further agreed that counts one and two would run

consecutive to each other for an effective sentence of nine years, with the manner

of service to be submitted to the trial court for determination.


       1
           The ind ictmen t indicated th at the app ellant was also kn own as “Butch D avis.”

                                                     2
        After the charges in case C-8805 were pending against the appellant, a

Campbell County Grand Jury, in October of 1996, returned a second indictment,

case C-9105, against the appellant, charging him with one count of arson, a class C

felony, and one count of theft of property over one thousand dollars, a class D

felony. These offenses resulted from the appellant’s employment at Discount

Pagers in LaFollette, Tennessee. While employed as the manager of Discount

Pagers, the appellant had stolen merchandise from his employer. In an attempt to

avoid prosecution, the appellant set fire to the business, resulting in the destruction

of the premises and numerous surrounding businesses/establishments. Indeed, a

fair estimate of the damages caused by the arson totals approximately $637,398.33.

As in case C-8805, the appellant agreed to plead guilty to these charges. The plea

agreement provided that the appellant would be sentenced as a range II multiple

offender to six years on each count, to be served concurrent with each other but

consecutive to those sentences imposed in case C-8805. Again, the manner of

service was reserved for the determination of the trial court.



        A sentencing hearing was held on September 2, 1997. Neither party

presented any witnesses, relying solely on the presentence report and argument of

counsel. After considering the evidence, the trial court imposed a sentence of total

incarceration. Specifically, the trial court found:

        In this particular case, the Court is compelled to find that [an
        alternative sentence] would be inappropriate. This defendant has a
        long criminal record.[2] These are very serious matters that he has
        been convicted of. He has been on probation before . . .which did not
        seem to deter him in committing other crimes. Considering the totality
        of the circumstances, it is the opinion of the Court that split
        confinement, community corrections and/or probation are
        inappropriate and will not be applied in the sentences heretofore
        imposed and these sentences are to be carried out.




        2
         The presentence report indicates that the appellant has eight prior felony convictions and
eight misdemeanor convictions.

                                                3
       When the sentencing court properly considers the relevant sentencing

considerations, this court conducts a de novo review with the presumption that the

determination made by the trial court is correct. Tenn. Code Ann. § 40-35-

401(d)(1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Moreover, the

appellant bears the burden of showing that the sentence imposed by the trial court

is improper. See Tenn. Code Ann. § 40-35-210(b)(3)(1997).



       Initially, we note that, because the appellant agreed to be sentenced as both

a multiple and persistent offender and because he has a criminal history evincing a

"clear disregard for the laws and morals of society" and a "failure of past efforts at

rehabilitation," he is not presumed a favorable candidate for alternative sentencing.

Tenn. Code Ann. § 40-35-102 (5), -102(6) (1997). Moreover, we agree with the trial

court’s findings that, even if the appellant was entitled to the presumption, the

presumption is rebutted by "evidence to the contrary,” i.e., that confinement is

necessary based upon the appellant's history of criminal conduct, his failure at past

efforts of rehabilitation, and the seriousness of the offenses. Tenn. Code Ann. §§

40-35-103(1)(A), -103(1)(B), -103(1)(C) (1997).



       The appellant has not met his burden of demonstrating the impropriety of the

trial court’s denial of alternative sentencing. The record fully supports the trial

court’s determination denying the appellant a non-incarcerative sentence. We

agree with the trial court that a sentence of incarceration is justified.



       Accordingly, the trial court’s imposition of a sentence of total confinement is

affirmed pursuant to Rule 20, Tenn. Ct. Crim. App. R.




                                           4
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:


_____________________________________
JOHN H. PEAY, Judge



_____________________________________
JOSEPH M. TIPTON, Judge




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