           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        NOVEMBER 1997 SESSION
                                                     February 10, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 01C01-9701-CC-00007
           Appellee,            )
                                )    WILLIAMSON COUNTY
VS.                             )
                                )    HON. DONALD P. HARRIS,
HARRY REED,                     )    JUDGE
                                )
           Appellant.           )    (Full Probation Denial)



FOR THE APPELLANT:                   FOR THE APPELLEE:


VIRGINIA LEE STORY                   JOHN KNOX WALKUP
P. O. Box 1608                       Attorney General & Reporter
Franklin, TN 37065
                                     DARYL J. BRAND
                                     Asst. Attorney General
                                     450 James Robertson Pkwy.
                                     Nashville, TN 37243-0493

                                     JOSEPH D. BAUGH
                                     District Attorney General

                                     MARK PURYEAR
                                     Asst. District Attorney General
                                     P. O. Box 937
                                     Franklin, TN 37065-0937




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                                OPINION



                  The defendant was charged in the indictment with aggravated assault. By

agreement with the State, he entered a best interest guilty plea to the lesser included

charge of simple assault. A sentencing hearing was held and at its conclusion, the trial

judge sentenced the defendant to a term of six months in the local workhouse,

suspended after serving forty-five days. He was then placed on probation for eleven

months and twenty-nine days.



                  In this appeal as of right, the defendant contends that the trial judge erred

in failing to grant the defendant full probation “or other alternative sentencing.” After

considering the record before this Court, we find the defendant’s allegations to be without

merit and affirm the judgment of the trial court.1



                  The evidence developed at the sentencing hearing revealed that the

defendant’s girlfriend had been involved in a previous relationship with the victim. The

proof was uncontradicted that the victim had been a violent person with numerous

convictions for minor offenses, especially while a juvenile. The victim had come to the

defendant and his girlfriend’s house on several occasions in a drunken condition and had

on one occasion become violent, kicking in the front door and using profanity toward the

defendant and his girlfriend. After the fourth such intrusion, the defendant and a friend

went to the victim’s home where a fight ensued. There was testimony that the victim had

dived off the porch at the defendant with a knife. The defendant retrieved a baseball bat

from his car, as did his friend, and they struck the victim a number of times with the bats.



                  The proof further showed that the defendant was the father of a one-year-

        1
         Although the defe ndant’s iss ue is fram ed to includ e the den ial of “other a lternative se ntencing ,”
the C om mu nity Co rrec tions prog ram is lim ited to felon y offe nde rs. Als o, the defe nda nt’s b rief on ly
argues the denial of full probation.

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old child whom he visited on a regular basis and for whom he made regular child support

payments. Further, the defendant had been employed more than three years with the

same employer who was holding the defendant’s job pending the outcome of this hearing.



              The trial court found as enhancing factors that the defendant had a previous

criminal history, that he was a leader in the offense, and that the potential for bodily injury

was great. See T.C.A. § 40-35-114(1), (2) and (16). As mitigating factors, the trial judge

found that the defendant acted under strong provocation and that substantial grounds

existed tending to excuse or justify the defendant’s criminal conduct, though failing to

establish a defense. See T.C.A. § 40-35-113(2) and (3). After considering the enhancing

and mitigating factors and the weight to which each was entitled, the trial judge imposed

a six month workhouse sentence suspended after service of forty-five days with the

defendant to remain on probation for eleven months and twenty-nine days.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d)

Sentencing Commission Comments. This presumption, however, “is conditioned upon

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

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991).



              T.C.A. § 40-35-103 sets out sentencing considerations which are guidelines

for determining whether or not a defendant should be incarcerated. These include the

need “to protect society by restraining a defendant who has a long history of criminal

conduct,” the need “to avoid depreciating the seriousness of the offense,” the

determination that “confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses,” or the determination that “measures less

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restrictive than confinement have frequently or recently been applied unsuccessfully to

the defendant.” T.C.A. § 40-35-103(1).



                 In determining the specific sentence and the possible combination of

sentencing alternatives, the court shall consider the following: (1) any evidence from the

trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing

and the arguments concerning sentencing alternatives, (4) the nature and characteristics

of the offense, (5) information offered by the State or the defendant concerning

enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the

defendant’s statements in his or her own behalf concerning sentencing. T.C.A. § 40-35-

210(b). In addition, the legislature established certain sentencing principles which include

the following:

                 (5) In recognition that state prison capacities and the funds to
                 build and maintain them are limited, convicted felons
                 committing the most severe offenses, possessing criminal
                 histories evincing a clear disregard for the laws and morals of
                 society, and evincing failure of past efforts at rehabilitation
                 shall be given first priority regarding sentencing involving
                 incarceration; and

                 (6) A defendant who does not fall within the parameters of
                 subdivision (5) and 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.

T.C.A. § 40-35-102.



               After reviewing the statutes set out above, it is obvious that the intent of the

legislature is to encourage alternatives to incarceration in cases where defendants are

sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,

it is also clear that there is an intent to incarcerate those defendants whose criminal

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

efforts to rehabilitate.




                                               4
             The presentence report indicates that the defendant had been convicted

previously of simple possession and possession of drug paraphernalia which resulted in

a sentence of eleven months and twenty-nine days, suspended after the service of fifteen

days. This conviction was in December of 1995. In January of 1995, the defendant was

convicted of possession of alcohol by an underage person and sentenced to eleven

months and twenty-nine days, suspended after service of forty-eight hours. He was also

sentenced to thirty days in September of 1992 for theft under five hundred dollars

($500.00), said sentence being suspended after service of seventy-two hours.



             Our review of the record indicates that the trial judge followed the sentencing

requirements. Therefore, the presumption of correctness attaches to the sentence

imposed. The defendant has failed to demonstrate that his sentence was improper. The

evidence does not preponderate against the findings of the trial court.



             Having found no merit to the defendant’s claims, we affirm the trial court’s

sentencing determinations.



                                                 _______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID H. WELLES, Judge




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