           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                             AT KNOXVILLE                      June 10, 1999

                           MARCH 1999 SESSION                Cecil Crowson, Jr.
                                                            Appellate C ourt
                                                                Clerk

STATE OF TENNESSEE,                 )       C.C.A. 03C01-9804-CC-00135
                                    )       BLOUNT COUNTY CIRCUIT
                                    )
             Appellee,               )      Hon. D. Kelly Thomas, Jr.,
                                    )       Judge
                                    )
                                    )
vs.                                 )       (SENTENCING)
                                    )       NO. C-10418, 10421-23
                                    )
STEVE CLICK, JR.,                   )
                                    )
             Appellant.             )



FOR THE APPELLANT:                          FOR THE APPELLEE:


MACK GARNER                                 PAUL G. SUMMERS
District Public Defender                    Attorney General & Reporter
419 High Street
Maryville, TN 37804                         TODD R. KELLEY
                                            Assistant Attorney General
GERALD L. GULLEY, JR., ESQUIRE              425 Fifth Avenue North
P.O. Box 1708                               2nd Floor, Cordell Hull Bldg.
Knoxville, TN 37901                                Nashville, TN 37243

                                            MICHAEL L. FLYNN
                                            District Attorney General

                                            KIRK ANDREWS
                                            Assistant District Attorney
                                            363 Court Square
                                            Maryville, TN 37804


OPINION FILED:_________________


AFFIRMED


CORNELIA A. CLARK
Special Judge
                                                OPINION

          The appellant, Steve Click, Jr., appeals as of right the sentencing

determination of the Blount County Circuit Court. He pled guilty to four counts of

aggravated burglary, a Class C felony, three counts of theft over $1,000.00, a Class D

felony, and one count of theft over $500.00, a Class E felony. The trial court

sentenced him as a Range I standard offender to serve three-year sentences for

each aggravated burglary, two-year sentences for each count of theft over $1,000.00,

and a one-year sentence for the count of theft over $500.00. All sentences were run

concurrent to one another. Appellant also received a two-year consecutive sentence

for the Class E felony offense of theft over $500.00 committed while he was released

on bond following his arrest on the original charges.1 The sole issue on appeal is

whether the trial court abused its discretion in failing to impose an alternative

sentence. Following our review of the record, we affirm the judgment of the trial court.

         The evidence offered at the sentencing hearing showed the appellant was

nineteen years old at that time. He had quit school after tenth grade but was working

on obtaining his GED at the time of the hearing. As a juvenile he was declared

delinquent by reason of committing (1) aggravated criminal trespass and (2) an

assault with a weapon against an animal. He also was truant from school, got into

fights, ran away from home, and took Ritalin for attention deficit disorder. He violated

the terms of juvenile probation more than once. In 1994 he was committed to the

custody of the Department of Youth Development. Since his release in 1996 he has

experienced mental or psychotic episodes that warranted treatment and medication.

         In August 1997 appellant was indicted for four separate counts of aggravated

burglary and theft of property of various values. The residential burg laries all

occurred on different days in April and May 1997, and resulted in the theft and

pawning of guns. The appellant claimed another young man was the leader in

committing these offenses, but the existence of that individual was never verified.




1
    The theft offense for which appellant received consecutive sentencing was designated below
as Ca se Nu mbe r 10875 . The rec ord doe s not reflec t that any app eal has b een pe rfected a s to
it. The Notice of Appeal, Designation of Record, and clerk’s certificate do not make reference
to the case. No appeal bond bears this case number. The judgment order in this case is not
foun d in this Rec ord. H owe ver, th e cou rt’s O rder incre asin g bail o n app eal do es inc lude t his
cas e num ber, a nd bo th pa rties h ave d iscu sse d it in th eir brie fs. T here fore we ha ve inc luded it
in our disc ussion.

                                                      2
       While released on bond on for these offenses, appellant was arrested on

October 19, 1997 on a new theft charge, which he explained as his effort to “borrow” a

four-wheeler before deciding whether to buy it. After this arrest appellant sought

psychiatric medical attention and a psychological evaluation. He was then placed on

certain tranquilizing medications and ultimately was diagnosed as having personality

disorder and adult antisocial behavior.

       On December 12, 1997, appellant pled guilty to four counts of aggravated

burglary and five counts of theft. The length of each sentence was agreed to by the

parties. The manner of service of the sentences was left for the court to determine.

On December 22, 1997, appellant tested positive for the presence of valium in his

system, although this drug had not been prescribed for him. He denied using it.

       A sentencing hearing was conducted March 31, 1998. The trial court

sentenced appellant to serve concurrent three-year sentences for each aggravated

burglary, concurrent two-year sentences for each count of theft over $1,000.00, and a

concurrent one-year sentence for one count of theft over $500.00. Appellant also

received a two-year sentence for the count of theft over $500.00 committed while he

was on bond, and that sentence was run consecutive to the other sentences. The

court declined to grant probation or any alternative sentencing.

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

sentence, this court conducts 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 an affirmative showing in the record

that the trial judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W. 2d 166, 169 (Tenn. 1991). The burden is

upon the appealing party to show that the sentence is improper. Tenn. Code

Ann.§40-35-401(d) Sentencing Commission comments.

       A defendant is eligible for probation if the sentence imposed is eight years or

less. Tenn. Code Ann. §40-35-303(a). 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 in the absence of evidence to the contrary. Tenn. Code Ann.

§40-35-102(6). However, the appellant has the burden of establishing suitability for

                                            3



total probation. State v. Boggs, 932 S.W. 2d 467, 477 (Tenn. Crim. App. 1996).
       In determining whether to grant or deny probation, the trial court should

consider the circumstances of the offense, the appellant’s criminal record, social

history and present condition, the need for deterrence, and the best interest of the

appellant and the public. State v. Grear, 568 S.W. 2d 285, 286 (Tenn. 1978).

       In a case where the defendant seeks probation, the court must consider the

accused’s criminal record, social history, present physical and mental condition, the

circumstances of the offense, the deterrent effect upon criminal activity of the accused

as well as others, and the accused’s potential or lack of potential for rehabilitation and

treatment. State v. Parker, 932 S.W. 2d 945, 959 (Tenn. Crim. App.1996).

       The trial court based its decision to impose incarceration upon several factors,

including the circumstances of the offense, the appellant’s current psychological

condition, and the court’s desire to provide deterrence and to avoid depreciating the

seriousness of the crimes committed. As a juvenile, the appellant accumulated a

record of convictions, including those involving shooting a dog and aggravated

criminal trespass for looking in women’s windows. The residential burglaries at issue

involved the taking of women’s underwear and guns, and involved one instance when

a young girl came in upon the appellant, creating a potentially dangerous situation.

The appellant committed the last theft while on bond after arrest in the earlier cases.

He testified that he was arrested for and convicted of taking a pair of sunglasses from

Wal-Mart in Sevier County, also while these charges were pending. The court

concluded that no alternative sentencing option could be successfully completed by

the appellant. The judge did authorize the appellant to be evaluated for the “boot

camp” program.

       The sentence imposed by the trial court was justified. The appellant’s history

of criminal conduct against the homes of other persons and his taking and use of

guns suggest that he is a danger to the public. He failed a drug screen conducted

after the entry of his guilty plea but before sentencing. As a juvenile he was revoked

from probation more than once for failing to comply with conditions imposed upon

him. He has been unable to maintain steady employment. Appellant has not shown

he is a favorable candidate for probation.



                                             4

       For the reasons set forth above, we affirm the judgment of the trial court in all

respects.
                                      _________________________________
                                      CORNELIA A. CLARK
                                      SPECIAL JUDGE




_______________________________
GARY R. WADE
JUDGE



_______________________________
NORMA M. OGLE
JUDGE




                                  5

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE

                       MARCH 1999 SESSION


STATE OF TENNESSEE,                   )    C.C.A. 03C01-9804-CC-00135
                                          )      BLOUNT COUNTY CIRCUIT
                                          )
             Appellee,                     )     Hon. D. Kelly Thomas, Jr.,
                                          )      Judge
                                          )
                                          )
vs.                                       )      (SENTENCING)
                                          )      NO. C-10418, 10421-23
                                          )
STEVE CLICK, JR.,                         )
                                          )
              Appellant.                  )




                                  JUDGMENT

        Came the appellant, Steve Click, Jr., represented by counsel and also
came the attorney general on behalf of the State, and this case was heard on
the record on appeal from the Criminal Court of Blount County; and upon
consideration thereof, this court is of the opinion that there is no reversible
error in the judgment of the trial court.

       Our opinion is hereby incorporated in this judgment as if set out
verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of
the trial court is AFFIRMED, and the case is remanded to the Criminal Court of
Blount County for execution of the judgment of that court and for collection of
costs accrued below.

       In the event the defendant indicates an intention to file an application
for permission to appeal to the Tennessee Supreme Court, he may be
admitted to bail in the additional amount of $625.00 for a total bond amount of
$3,125.00 with sufficient sureties to be approved by the clerk of the trial court
pending filing and disposition of said application. In default of such bond, he
shall be remanded to the custody of the Sheriff of Blount County.

      It appears that the appellant is indigent. Costs of this appeal will be
paid by the State of Tennessee.

                                          PER CURIAM

                                          Gary R. Wade, Judge
                                          Norma M. Ogle, Judge
                                          Cornelia A. Clark, Special Judge
