         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 15, 2004

            STATE OF TENNESSEE v. JAMES ALLEN MICHAELS

                   Direct Appeal from the Criminal Court for Knox County
                          Nos. 73665, 76423  Ray L. Jenkins, Judge



                         No. E2003-02336-CCA-R3-CD - July 27, 2004


Defendant, James Allen Michaels, pled guilty to two counts of robbery, both Class C felonies.
Defendant was originally indicted on charges of aggravated robbery. For his convictions, Defendant
was sentenced as a Range II offender to eight years and three years as a Range I standard offender,
to be served consecutively. The length of the sentences imposed was agreed upon in the negotiated
plea agreement. Defendant appeals the trial court’s denial of probation. After reviewing the record
on appeal, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Mark E. Stephens, District Public Defender; Robert C. Edwards, Assistant Public Defender, for the
appellant, James Allen Michaels.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; Randall E. Nichols, District Attorney General; Jo Helm, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                             OPINION

       The presentence report indicates that on January 15, 2001, Defendant entered the Super 8
Motel on Papermill Road in Knoxville, Tennessee, armed with a 9 millimeter handgun and
demanded money from the desk clerk. Defendant also demanded that the clerk relinquish his wallet
and watch. The clerk gave Defendant his watch and approximately $250 in cash. Regarding that
incident, Defendant stated that he was “living on the street . . . kicked out of [his] mother’s house.”
He also stated that the robbery was David Lockhart’s “plan,” and Defendant did his “dirty work” for
him. He stated that Mr. Lockhart gave Defendant a gun and told him what to do, and Defendant
“followed along and did it.”
        Furthermore, the presentence report indicates that on September 13, 2002, Defendant entered
another victim’s vehicle and attempted to take the victim’s purse. Defendant and the victim
struggled, and another man entered the vehicle from the passenger side and took the victim’s purse.
Defendant took a cigarette case from the victim. Defendant and the other man then fled on foot.
Defendant was later located, and property from the victim’s purse was recovered from Defendant.
Regarding that incident, Defendant stated that he was “kicked out and living on the street” and that
he “needed money.” He stated that he “got drunk and high” and met a “guy [he] think[s] was named
Mike.” The two men were walking to the store and saw a “nice S.U.V. and decide to break in it not
knowing if anyone’s in it.” Inside the vehicle, a woman screamed and the man Defendant called
“Mike” then grabbed her purse. Defendant took a cigarette case that contained approximately 75
cents. The presentence report also indicates that Defendant was identified by the Knoxville Police
Department as a member of the “Trigger Happy Punks” gang.

         A sentencing hearing was conducted on September 11, 2003, to determine whether
Defendant’s sentences should be suspended and Defendant placed on probation. Defendant, 22 years
old at the time of the hearing, testified that he accepted responsibility for the offenses. Defendant
testified, however, that the robbery of the motel was Mr. Lockhart’s idea. Defendant admitted that
he had been convicted of several misdemeanor offenses and that he was previously granted
probation, and it was revoked. Defendant testified that he grew up in an alcoholic home and that his
parents did not closely supervise him while he was a teenager. Defendant testified that “there’s no
such thing” as the “Trigger Happy Punks” gang, and he denied any involvement in gang activity.
Defendant explained that the presentence report indicates otherwise because he had been riding in
a vehicle with some people who were affiliated with a gang, and the vehicle was pulled over.
Defendant testified that if the trial court placed him on probation, he would reside at the Salvation
Army in the Boot Strap program. Defendant also testified that if granted probation, he would
willingly pay court costs and restitution and submit to drug testing and counseling. He testified that
his mother and grandmother, who is disabled, could support him while he was on probation.

        At the conclusion of the sentencing hearing, the trial court stated that it had considered the
testimony, the presentence report, Defendant’s behavioral record, employment history, social history,
present condition, both physical and mental, the interest to the public and to Defendant, and the need
for deterrence. The trial court emphasized Defendant’s prior criminal history, his use of a deadly
weapon in one of the offenses, his failure to make any restitution, and his arrest on other charges
since his guilty plea in this case. The trial court stated, “[t]his man is a menace on the streets. I think
he’s probably beyond redemption.” The trial court denied probation and ordered that Defendant’s
sentences be served in confinement.

        This Court reviews the sentence imposed by the trial court de novo with a presumption of
correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative
showing in the record that the trial judge considered the sentencing principles and all relevant facts
and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). If the trial court fails to
comply with the statutory directives, there is no presumption of correctness and our review is de
novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to


                                                   -2-
show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission
Comments.

         While determining or reviewing a sentence, the courts must consider: (1) the evidence
received at 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 offered by the parties on the enhancement and mitigating
factors; (6) any statement the defendant wishes to make in the defendant’s behalf about sentencing;
and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). If our review reflects that the trial court followed
the statutory sentencing procedure, imposed a lawful sentence after giving due consideration and
proper weight to the factors and principles set out under sentencing law, and the trial court’s findings
of fact are adequately supported by the record, then we may not modify the sentence even if we
would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991).

         A defendant is eligible for probation if the sentence received by the defendant is eight years
or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). A defendant with
a total effective sentence in excess of eight years is eligible for probation if the individual sentences
imposed for the convictions fall within the probation eligibility requirements. State v. Langston, 708
S.W.2d 830, 832-33 (Tenn. 1986). A defendant seeking full probation bears the burden on appeal
of showing the sentence imposed is improper, and that full probation will be in the best interest of
the defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        In determining whether to grant or deny probation, a trial court should consider the
circumstances of 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. State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995). The defendant's lack of credibility is also an appropriate consideration and reflects on a
defendant's potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999).

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also Ashby, 823 S.W.2d at 169. Additionally, a court should consider the defendant’s potential
or lack of potential for rehabilitation when determining if an alternative sentence would be
appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim.
App. 1996).




                                                  -3-
        Defendant argues that he was entitled to the statutory presumption that he is a favorable
candidate for alternative sentencing. Tennessee Code Annotated section 40-35-102(6) provides that
“[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 the contrary.” The judgment of conviction forms indicate that Defendant pled guilty
to one Class C felony as a Range II multiple offender, and he pled guilty to another Class C felony
as a Range I standard offender. Therefore, Defendant is not entitled to the presumption for his eight-
year sentence. For the additional reasons stated below, we conclude that the trial court’s denial of
probation in Defendant’s three-year sentence was also appropriate.

        The presentence report shows that Defendant has a lengthy record of misdemeanor
convictions and a juvenile record. Furthermore, Defendant was granted probation for a prior offense,
and probation was revoked. Defendant argues that the trial court erred by not considering all of the
statutory sentencing principles. The trial court’s findings, however, establish that it considered the
sentencing principles and concluded that confinement was necessary to protect the public from a
defendant with a long history of criminal conduct. Furthermore, those findings are supported by the
record. We conclude that the trial court properly denied probation and ordered a sentence of
confinement.

                                          CONCLUSION

       The judgments of the trial court are affirmed.




                                               ___________________________________
                                               THOMAS T. WOODALL, JUDGE




                                                 -4-
