      IN THE COURT OF CRIMINAL APPEALS OF
                  TENNESSEE
                                                                 FILED
                    AT KNOXVILLE                               November 29, 1999

                                                              Cecil CROWS ON, Jr.
               SEPTEMBE R SESSION, 1999                       Appellate Court Clerk



STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9811-CR-00419
                           )
      Appe llant,          )
                           )
                           )    KNOX COUNTY
VS.                        )
                           )    HON. RICHARD BAUMGARTNER
COLLIN BENTLEY STEEN,      )    JUDGE
                           )
      Appellee.            )    (Dire ct Ap pea l - Agg ravat ed R obb ery)




FOR THE APPELLEE:               FOR THE APPELLANT:

JULIE A. MAR TIN                PAUL G. SUMMERS
P. O. Box 426                   Attorney General & Reporter
Knoxville, TN 37901-0426
                                ELLEN H. POLLACK
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                RANDALL E. NICHOLS
                                District Attorney General

                                ANNE S. CRISLER
                                Assistant District Attorney
                                City-County Building
                                Knoxville, TN 37902


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                                    OPINION

          The appellant, Colin Bentley Steen, pled guilty in the Knox County Criminal

Court to one (1) coun t of aggravated ro bbery, a Class B felony. The trial court

sentenced him as a Rang e I, Stand ard Offe nder, to eight (8) years incarceration. On

appe al, the appellant claims that the trial court erred in (1) failing to sentence him as

an Especially Mitigated Offender; and (2) denying his reques t for alternative

sentencing. After a thorough review of the record before this Court, we affirm the

judgm ent of the tria l court.



                                                             I.



          In the early morning hours of July 12, 1996, Jack Lawson was working as a

night clerk at the Scottish In n Motel in Knoxville. A man c ame to the front door, and

Lawson allowed him to come inside.1 The man asked for directions, and while he

and Lawson were conversing, another man appeared wearing a bandana around the

lower portion of his face.                  The second man, whom Lawson identified as the

appellan t, brandished a gun and demanded money. Lawson showed him where he

kept the evening’s earnings from the motel, and the appellant took an envelope

containing approxim ately $90 0 - $1,00 0. The a ppellant a nd his ac comp lice left

shortly ther eafter, an d Laws on con tacted the police.

          The appellant subsequently pled guilty to one (1) count of aggravated robbery.

At the sentencing hearing, the appellant expre ssed remo rse for h is involve men t in

the offense. He testified that he had been drinking and smoking marijuana on the

day of the incident and co uld not rec all specific d etails abo ut the incid ent. He further

expressed his desire to become a productive member of society should the trial

court release him in a community-based alternative to incarceration.




  1
      Lawso n testified tha t he kep t the front do or locke d during th e night sh ift.

                                                            -2-
      As an enhancement factor, the trial court found that the appellant was a leader

in the commission of the offense. Tenn. Code Ann. § 40-35-114(2). In mitigation,

the trial court foun d that the a ppellant was remor seful and accep ted resp onsibility

for his actions. Tenn. Code Ann. § 40-35-113(13). The trial court sentenced the

appellant as a R ange I, Stand ard O ffende r, to eight (8) years, the minimum in the

range for a Class B felony. The trial court further denie d any form o f alternative

sente ncing . From his sen tence , the ap pellan t now b rings th is app eal.



                                            II.



       The appellant challe nges the se ntenc e imp osed by the tr ial cou rt in two ways.

First, he claims that the trial court erred in failing to sentence him as an Espe cially

Mitigated Offender. Seco ndly, he argue s that th e trial co urt erre d in de nying h is

request to serve his sen tence in the C omm unity A lternativ e to Prison Program

(“CAPP ”) pursuant to T enn. Cod e Ann. § 40 -36-106(c).

                               A. Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with

a presum ption of co rrectnes s. Tenn . Code Ann. § 4 0-35-40 1(d). This presumption

is condition ed upo n an affirm ative show ing in the re cord tha t the trial judge

considered the sente ncing prin ciples an d all relevan t facts and circums tances . State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comp ly with

the statutory directives, there is no presumption of correctness and our review is de

novo. State v. Poo le, 945 S.W .2d 93, 96 (T enn. 1997 ).

      The burden is upon the ap pealing party to sh ow that the sen tence is impro per.

Tenn. Code Ann. § 40-35 -401( d) Se ntenc ing Co mm ission Commen ts. In conducting

our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider

the following factors in sentencing:

      (1) [t]he evidence, if any, received at the trial and the sentencing
      hearing;

      (2) [t]he pre senten ce repo rt;


                                            -3-
      (3) [t]he principles of sentencing and arguments as to sentencing
      alternatives;

      (4) [t]he nature and characteristics of the criminal conduct involved;

      (5) [e]vidence and information offered by the parties on the
      enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;
      and

       (6) [a]ny statem ent the defen dant w ishes to ma ke in th e defe ndan t’s
       own behalf about sentencing.

                         B. Especially Mitigated Offender

       The appellant contends that the trial court erred in failing to sentence him as

an Especially Mitigated Offender under Tenn. Code Ann. § 40-35-109(a). He alleges

that the trial court’s application of Tenn. Code Ann. § 40-35-114(2) as an

enhancement factor was erroneous because there is no evidence in the reco rd to

support a finding that he was the leader in the commission of the offense. Thus, he

reasons that because no enhancement factors are applicable , and the trial court

found applic able m itigating factors , he sh ould have been sente nced as an Espe cially

Mitigated Offen der.

       Initially, this Cou rt notes tha t the appe llant never re queste d to be sentenced

as an Especially Mitigated Offender at the sentencing hearing. As a result, the issue

is waived. Tenn. R. App. P . 36(a); see State v. Duncan Johnson, C.C.A. No. 02C01-

9211-CC-00256, Gibson County, 1993 Tenn. Crim. App. LEXIS 508, at *2 (Tenn.

Crim. App . filed August 4, 199 3, at Jackson ).

      Second ly, the mere absence of applicable enhancement factors does not

necessitate a find ing that the appe llant is an Espec ially Mitigated Offende r. Tenn.

Code Ann. § 4 0-35-10 9(a) prov ides that a trial court “may find the defendant is an

espe cially mitigated offender, if: (1) the defendant has no prior felony convictions;

and (2) the court finds m itigating, but no enha nceme nt factors.” (Emp hasis adde d).

This provision is not manda tory, but discre tionary. State v. Braden, 867 S.W.2d 750,

762 (Tenn. Crim. App . 1993). Whether a defendant is sentenced as an es pecia lly

mitigated offender is a determ ination tha t rests within the sound discretion of the trial

court. State v. Hicks, 868 S.W.2d 729, 730-31 (Tenn. Crim. App. 1993); State v.

Braden, 867 S.W.2d at 762-63.           Especially mitigated status is reserved for

                                            -4-
“instances where the trial judge may desire to depart from even the minimum

sentence for a Range I offende r and im pose les ser pen alties.” Tenn . Code Ann. §

40-35-109, Sentencing Commission Comm ents.

       In any event, the trial court did not err in applying Tenn. Code Ann. § 40-35-

114(2) as an enhancement factor in this case. The victim testified that the co-

defendant came into the Sc ottish Inn M otel, asking for directions. W hile he and

Lawson were talkin g, the appellant appeared, pointed a gun at Lawson and

demanded money. Lawson testified that the co-defendant stepped aside and “let the

[appellan t] do his job.”   The evidence in the reco rd sup ports th e trial co urt’s

conclusion that the appellant was a leader in the commission of the offense. Tenn.

Code A nn. § 40-35-1 14(2).

       Furthermore, although the trial court did not find that the appe llant’s history of

prior criminal conduct, his admitted illegal drug use, was applicable as an

enhancement factor, Tennessee Code Annotate d § 40 -35-1 14(1) , this Co urt is

authorized, under o ur powe r of de novo review, to consider any e nhancem ent factors

supported by the rec ord. State v. Claybrooks, 910 S.W.2d 868, 873 (T enn. Crim.

App. 1994). We find this enhancement factor applicable in this case.

       Two enhan ceme nt factors a re applica ble to the appellant’s sentence for

aggravated robbery. Thus, the appellant is statutorily ineligible to be classified as

an Especially Mitigated Offender. Tenn. Code Ann. § 40-35-109(a)(2). This issue

is without m erit.

                              C. Alternative Sentencing

       In his next issue, the appellant asserts that the trial court erred in refusing to

place him on community corrections. He maintains that he qualifies for the CAPP

Program under the “special needs” provision o f Tenn . Code Ann. § 40-36-106(c) due

to his drug and alcohol use.

       An especially mitigated or standard o ffender convicted of a Class C , D or E

felony is presumed to be a favorable candidate for alternative sentencing in the

absence of eviden ce to the c ontrary. T enn. C ode An n. § 40-35-102 (6). A trial court

must presume that a defenda nt sentence d to eight years or less and who is not an

                                           -5-
offender for whom inc arceration is a priority is subject to alternative sentencing.

State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993).               It is further

presumed that a sentence other than incarceration would result in successful

rehabilitation unless re butted b y sufficient ev idence in the reco rd. Id. at 380.

      Under the 1989 Sentencing Act, sentences which involve con fineme nt are to

be based on the following considerations:

      (A) [c]onfinement is necessary to protect society by restraining a
      defend ant who has a lon g history of c riminal co nduct;

      (B) [c]onfinem ent is nec essary to avoid depreciating the seriousness of
      the offense or confinement is particularly suited to provide an effective
      deterrence to others likely to commit similar offenses; or

      (C) [m]easure s less restrictive than confinement have frequently or
      recently b een ap plied uns uccess fully to the de fendan t.

Tenn. Code Ann. § 4 0-35-10 3(1); State v. Boston, 938 S.W .2d 435, 4 38 (Tenn.

Crim. App . 1996).

      As the state correctly points out, the appellant is not statutorily entitled to the

presumption of alternative sentencing. Under Tenn. Code Ann. § 40-35-102(6), an

espe cially mitigated or s tanda rd offen der co nvicted of a Cla ss C, D or E felo ny is

presumed to be a favorable candidate for alternative sentencing. Because the

appellant was convicted of aggravated robbery, a Class B felony, he is not presumed

to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 39-

13-402(b).

      Moreover, it is well-settled that a defendant must be eligible for probation

before he may be sentenced pursuant to Tenn . Code Ann. § 4 0-36-10 6(c). State v.

Grigsby, 957 S.W .2d 541, 546 (Ten n. Crim. A pp.), perm. to app. denied (Tenn.

1997); State v. Boston, 938 S.W .2d at 438 -39; State v. Staten, 787 S.W.2d 934, 936

(Tenn. Crim. App. 1989). The appellant is statutorily ineligible for probation because

he was convicted of aggravated robbery under Tenn. Code Ann. § 3 9-13-40 2. See

Tenn. Code Ann. § 40-35-303(a).          Therefore, the appellant is ineligible to be

sentenced under Te nn. Code Ann. § 40-3 6-106(c).

      In addition, we agree with the trial court that the evidence in the record does

not support a finding that the appellant meets the requirements of the “spec ial

                                           -6-
needs” provision under Tenn. Code Ann. § 40-36-106. In order to qualify for this

provision , the trial court m ust deter mine th at:

         (1) the offender has a history of chronic alcohol, drug abuse, or mental
         health problem s; (2) these factors were reasonably related to and
         contributed to the o ffende r’s crim inal co nduc t; (3) the identifia ble
         special need(s) are treatable, and (4) the treatment of the special need
         could be bes t served in th e com munity ra ther than in a correc tional
         institution.

State v. Grigsby, 957 S.W.2d at 546-47.

         The trial court found no proof that the appellant suffered from a chronic drug

and/or alcohol abuse problem.          The record demonstrates that the trial court

considered the relevant fac ts and circumstances; thus, this Court must presume that

the trial court’s findin gs are co rrect. See Tenn. C ode Ann . § 40-35-401 (d); State v.

Ashby, 823 S.W.2d at 169.

         Furthermore, even assuming that the appellant has a chronic alcohol and/or

drug abuse problem, the appellant has not established a causal connection between

his drug/alcohol problem and his criminal conduct. The appellant testified that he

had been smoking marijuana and drinking on the day of the incident and could not

recall the specific details of the incident. However, the victim and another witness

testified at the sentencing hearing that the appellant did not appear to be intoxicated

or unde r the influen ce at the tim e of the inc ident.

         The trial court correctly determined that the appellant does not qualify for

alternative sentencing under Tenn. Code Ann. § 40-36-106(c). This issue has no

merit.



                                             III.



         After a thorough review of the record before this Court, we conclude that the

trial court properly sentenced the appellant as a Range I, Standard Offender, to eight

(8) years incarceration. Accordingly, the judgment of the trial court is affirmed.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE

                                             -7-
CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                               -8-
