             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                            MAY SESSION, 1999         FILED
                                                      June 18, 1999

                                                 Cecil W. Crowson
STATE OF TENNESSEE,          )                 Appellate Court Clerk
                             )    No. 01C01-9810-CR-00390
      Appellee               )
                             )    DAVIDSON COUNTY
vs.                          )
                             )    Hon. Cheryl Blackburn, Judge
JOSEPH WAYNE RUSSELL,        )
                             )    (Sentencing)
      Appellant              )



For the Appellant:                For the Appellee:

Jeffrey A. DeVashier              Paul G. Summers
Asst. Public Defender             Attorney General and Reporter
1202 Stahlman Bldg.
Nashville, TN 37201               Georgia Blythe Felner
                                  Assistant Attorney General
(ON APPEAL)                       Criminal Justice Division
                                  425 Fifth Avenue North
                                  2d Floor, Cordell Hull Building
Alan Calhoun                      Nashville, TN 37243-0493
Asst. Public Defender
1202 Stahlman Bldg.
Nashville, TN 37201               Victor S. (Torry) Johnson III
                                  District Attorney General
(AT TRIAL)
                                  Nick Bailey
                                  Asst. District Attorney General
Karl Dean                         Washington Sq., Suite 500
Public Defender                   222-2nd Avenue North
                                  Nashville, TN 37201-1649



OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                                OPINION



        The appellant, Joseph Wayne Russell, appeals the sentencing decision of

the Davidson County Criminal Court. Originally indicted on two counts of rape of a

child, the appellant pled guilty to one count of criminal attempt to commit rape of a

child, a Class B felony. Under the terms of the plea agreement, the appellant

received an eight year sentence with the manner of service of the sentence 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 an alternative sentence, specifically arguing that he should have been placed

on “probation after some period of confinement.”



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

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



        A sentencing hearing was scheduled for July 1, 1998. Neither party

presented any witnesses, relying solely on the presentence report, the sex offender

evaluation report, the facts related at the guilty plea hearing, and argument of

counsel. The factual basis for the plea established that the appellant, twenty years

old, engaged in consensual sexual intercourse with a twelve year old victim; this was

the appellant’s second sexual penetration of the minor victim.



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

incarceration. Specifically, the trial court found:

        [The] [p]re-[s]entence [r]eport reflects an individual who even though
        the circumstances of this offense may be somewhat unusual, you do
        have a previous history of criminal behavior.1 You have been even
        sent to Taft, which is a very severe punishment for someone, for
        robberies, aggravated robberies. . . . You’ve committed delinquent acts

        1
          The record reflects that the appellant has the following juvenile adjudications: aggravated
assau lt, posses sion of cr ack c ocaine f or resale , and two c onvictions of aggra vated rob bery. W e
note that the instant offense occurred in September of 1997, just over a year after his release
from Taft Yo uth Cen ter in May of 1996.

                                                   2
       which would be felonies if they were adults. . . . [G]iven your record, I
       don’t think you deserve probation or alternative sentencing. Least
       restrictive measures have been frequently or even restrictive measures
       have been applied unsuccessfully to you in the past. You have not
       demonstrated any kind of potential for rehabilitation or even an ability
       to abide by the laws.
       Your employment history is abysmal.
       . . . [Y]ou have not demonstrated to me, because you have no
       presumption of an alternative sentence, as to why I should do this or
       as to why I should place you on alternative sentencing.

       See Tenn. Code Ann. § 40-35-103(1)(A) and (C) (1997).



       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). Because the appellant

was convicted of a Class B felony, the presumption of an alternative sentence is not

applicable. See Tenn. Code Ann. § 40-35-102(6) (1997). 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).



       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.




                                    ____________________________________

                                           3
                          DAVID G. HAYES, Judge




CONCUR:



____________________________________
JERRY L. SMITH, Judge


____________________________________
NORMA MCGEE OGLE, Judge




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