       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON             FILED
                         AUGUST SESSION, 1997        October 23, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk

STATE OF TENNESSEE,              )   C.C.A. NO. 02C01-9701-CR-00005
                                 )
           Appellee,             )
                                 )    SHELBY COUNTY
                                 )
V.                               )
                                 )    HON. ARTHUR T. BENNETT,
CONNIE L. FULTON,                )    JUDGE
                                 )
           Appe llant.           )    (THEFT O VER $ 500.00)




FOR THE APPELLANT:               FOR THE APPELLEE:

ROBERT M. BRANNON, JR.           JOHN KNOX WALKUP
295 Washington, Suite 3          Attorney General & Reporter
Memphis, TN 38103
                                 DEBORAH A. TULLIS
                                 Assistant Attorney General
                                 2nd Floor, Cordell Hull Building
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 JOHN W. PIEROTTI
                                 District Attorney General

                                 PERRY HAYES
                                 Assistant District Attorney General
                                 201 Poplar Street, Suite 301
                                 Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION

      The Defe ndan t, Con nie L. Fulton, appeals as of right the determination of

the Shelby County Criminal Court that the sentences she received for various

convictions shou ld be served by incarceration and not by alternative sentencing.

The Defen dant en tered gu ilty pleas to three counts of theft, one count of reckless

driving, and one count of driving a moto r vehicle while her license was revoked,

canceled, or sus pend ed.      Pu rsuan t to a ne gotiated plea agreement, the

Defendant was sentenced to two years as a Range I Standard Offender for her

convic tion for theft over $500.      This sentence was ordered to be served

conc urren tly with her two nine-m onth se ntence s for theft under $500, her 90-day

sentence for reckless driving, and her 90-day sentence for driving while her

license was revoked, suspended, or canceled. After an evidentiary hearing, the

trial court ordered the sentences to be served to tally by incarc eration. In her s ole

issue on app eal, the Defendant argues that the trial court erred in denying her

alternative s entenc ing. W e affirm the judgm ents of the trial court.



      When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all rele vant facts and circu mstan ces." State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).




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       In conducting a de novo review of a sentence, this Court must consider the

evidence adduc ed at trial and the sentencing hearing, the presentence report, the

principles of sentencing, the arguments of counsel relative to sentencing

alternatives, the natur e of the offe nse, an d the de fendan t’s potential for

rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945,

955-56 (T enn. Crim A pp. 1996).



       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial cou rt'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). Upon

review of the record, we find that the trial court considered all the proper

sentencing principles and stated its reasons and findings on the record.

Therefore, review by this court is de novo with a presumption of correctness.



       Tennessee Code Annotated section 40-35-102 outlines when alterna tive

sentencing is appropriate.      A defendant “who is an especially mitigated or

standard offender convicted of a Class C, D or E felony is presumed to be a

favora ble candida te for alternative sentencing options in the absence of evidence

to the contra ry.” Tenn . Code Ann. § 40-35-102(6). Our sentencing law also

provides that “convicted felons c omm itting the most seve re offenses, possessing

criminal histories e vincing a c lear disreg ard for the laws and morals of soc iety,

and evincing failure of pa st efforts at re habilitation s hall be give n first priority

regarding sentencing involving incarceration.” Te nn. Code Ann. § 40-3 5-102(5).

                                          -3-
Thus, a defendant sentenced to eight years or less who is not an offender for

whom incarc eration is a prio rity is pre sum ed elig ible for alternative sentencing

unless sufficient evidence rebuts the presumption. However, the act does not

provide that all o ffende rs who mee t the crite ria are entitled to such relief; rather,

it requires that sentencing issues be determined by the facts and circumstances

presented in each c ase. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.

App. 19 87).



       Additionally, the princip les of se ntenc ing refle ct that th e sen tence shou ld

be no grea ter than tha t deserved for the offense committed and should be the

least severe measure necessary to achieve the purposes for which the sentence

is impos ed. Ten n. Cod e Ann. § 40-35-1 03(2) an d (4). The court should also

consider the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in

determ ining the s entenc e alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).



       The Defen dant arg ues tha t the trial judge erred when he s tated: “You’ve

got to convince me that you don’t need to go to jail and stay there as long as we

can keep you there,” because this denied her the presumption of being a

favora ble candidate for alternative sentencing pursuant to Tenn. Code Ann. § 40-

35-102(6). Although the judge may have acted prematurely in implying that the

Defendant did not ha ve that pre sump tion, after a carefu l review of the re cord it

appears that the judge was knowledgeable of the Defend ant’s criminal history

prior to the s entenc ing hea ring.

       When imposing a sentence of total con fineme nt, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tenn essee Code Annota ted section 40-3 5-103. These considerations

                                           -4-
which militate against alternative s entenc ing includ e: the nee d to prote ct society

by restrain ing a d efend ant ha ving a lo ng his tory of cr imina l conduct, whether

confinement is particularly appropriate to effectively deter others likely to c omm it

a similar offen se, the ne ed to avoid depreciating the seriousness of the offense,

and the ne ed to o rder co nfinem ent in cases in which less restrictive measures

have often or re cently bee n unsu ccessfu lly applied to th e defen dant. Tenn. Code

Ann. § 4 0-35-10 3(1)(A) - (C ).



       In the case sub judice, the trial court found that the Defendant did not meet

the appropriate criteria to be eligible for alternative sentencing. The Defendant

has an extens ive crim inal rec ord da ting ba ck to 1 986. S he ha s bee n prev iously

convicted more than ten times for shoplifting. The Defendant was on bond

awaiting trial when she committed four of the five current charges, and

furthermore, she wa s on pro bation for p ossess ion of cocaine when she

committed all of the present offenses. The D efend ant ha s app arently failed a t all

past efforts of reh abilitation. Because of these facts, the trial court reasoned that

the Defendant has a total disregard for the laws and morals of soc iety. The court

further found that granting alternative sentencing would depreciate the

seriousness of the crime. This court has held that wh ere a defend ant’s history

indicates a clear disregard for the laws and morals of society and a failure of past

efforts to reha bilitate, th e trial judge does not abuse his discretion in denying

probation. State v. Chrisman, 885 S.W .2d 834 , 840 (T enn. C rim. App . 1994).



      The Defenda nt argues that she is an eligible can didate for C omm unity

Corrections because she meets the minimum require men ts outlin ed in

Tennessee Code Annotated section 40-36-106. The Community Corrections Act

                                          -5-
allows certain eligible offenders to participate in community based alternatives to

incarceration, however, a defendant must first be a suitable candidate for

alternative sentencing.      Tenn. Code Ann. §§ 40-36-103 and 40-35-104(9).

Therefore, since the court found the Defen dant to be ineligible for altern ative

sentencing because of the factors discussed above, this precludes her from

participatin g in the C omm unity Cor rections p rogram .



         Based upon the evidence presented at the sentencing hearing, the

presen tence re port, the pr inciples of s entenc ing set forth in Tenn . Code Ann.

§ 40-35-102, -103, -104, the arguments made by counse l, the nature of the

offense, and the Defend ant’s potential for rehab ilitation, we find that the trial court

did not err in denying the Defendant alternative sentencing. This issue is without

merit.



         We affirm the ju dgme nts of the tria l court.


                                    ____________________________________
                                    THOMAS T. W OODALL, Judge

CONCUR:


___________________________________
DAVID G. HAYES, Judge


___________________________________
JERRY L. SMITH, Judge




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