         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs December 8, 2009

            STATE OF TENNESSEE v. MARK ANTHONY HAYNES

                   Direct Appeal from the Circuit Court for Bedford County
                               No. 16669    Lee Russell, Judge



                    No. M2009-00503-CCA-R3-CD - Filed January 7, 2010


The defendant, Mark Anthony Haynes, pled guilty in the Bedford County Circuit Court to three
counts of violation of the sex offender registry law, a Class E felony, and was sentenced to
consecutive terms of one year, six months for each offense, for a total effective sentence of four years
and six months in the Department of Correction. On appeal, he argues that the trial court erred by
denying his request for alternative sentencing. Following our review, we affirm the judgments of
the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.
WEDEMEYER, JJ., joined.

Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, Mark Anthony Haynes.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        The defendant was indicted in 1990 for forty-seven counts of aggravated sexual battery based
on his abuse of his stepdaughter, which occurred over a four-year period beginning when the child
was four years old. In 1991 he pled guilty to two of the counts and was sentenced to two consecutive
ten-year terms in the Department of Correction. He completed his sentences in 2004, was released
from prison, and registered as a violent sexual offender pursuant to law. In October 2008, the
Bedford County Grand Jury indicted him for three counts of violation of the sexual offender registry
law based on his failure to report changes in his address and employment and the fact that he was
discovered to be sharing a residence with his girlfriend and her six-year-old daughter. On December
4, 2008, the defendant pled guilty to all three counts of the indictment in exchange for consecutive
terms of one year, six months for each offense, with the manner of service of the sentences left to
the trial court’s later determination.

        The only evidence introduced at the January 8, 2009, sentencing hearing was the defendant’s
presentence report, which reflected that the forty-eight-year-old defendant was currently employed
at Prologix Distribution Services and had maintained fairly constant employment since his 2004
release from prison. The defendant reported that his current employer did not know he was a
convicted sexual offender and that he had lost a previous job when a former employer learned of his
sex offender status. He blamed simple procrastination for his failure to register his job change and
stated that he had been homeless and living in his truck at the time he fell in love with his present
fiancée. The defendant reported that he had abused marijuana from the age of 15 until his arrest for
sexual battery in 1990, and “blamed his marijuana abuse for his previous criminal conduct.” He
reported, however, that he had not used alcohol or drugs since his release from prison in 2004.

        At the hearing, defense counsel argued that the defendant’s offenses were not that serious and
requested that the trial court therefore sentence him to probation, community corrections, or some
sort of split confinement. The trial court, however, denied alternative sentencing, finding that the
defendant was a poor candidate for rehabilitation and that confinement was necessary to avoid
depreciating the seriousness of the offenses.

                                            ANALYSIS

       The defendant contends that the trial court erred in denying his request for alternative
sentencing, arguing that he should have been sentenced to either probation or community corrections.

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2006). This presumption 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). The presumption does not apply to the legal conclusions
reached by the trial court in sentencing the accused or to the determinations made by the trial court
which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.
App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871
S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9 (Tenn. 2000).

       In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statistical
information provided by the administrative office of the courts as to Tennessee sentencing practices


                                                 -2-
for similar offenses, (h) any statements made by the accused in his own behalf, and (i) the accused’s
potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210
(2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is erroneous.
Tenn. Code Ann. § 40-35-401 (2006), Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.

        Under the revised Tennessee sentencing statutes, a defendant is no longer presumed to be a
favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008)
(citing Tenn. Code Ann. § 40-35-102(6) (2006)). Instead, the advisory sentencing guidelines provide
that a defendant “who is an especially mitigated or standard offender convicted of a Class C, D, or
E felony, should be considered as a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (2006).

       Tennessee Code Annotated section 40-35-303(a) states that a defendant shall be eligible for
probation, subject to certain exceptions, if the sentence imposed on the defendant is ten years or less.
A defendant is not, however, automatically entitled to probation as a matter of law. The burden is
upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-303(b); State
v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996). In order to meet this burden, the defendant “must demonstrate that
probation will ‘subserve the ends of justice and the best interest of both the public and the
defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v.
Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

        There is no bright line rule for determining when a defendant should be granted probation.
Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a case-by-case
analysis. Id. Factors to be considered include the circumstances surrounding 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. Goode, 956 S.W.2d at 527.
Another appropriate factor for a trial court to consider in determining whether to grant probation is
a defendant’s credibility or lack thereof, as this reflects on the defendant’s potential for
rehabilitation. Id. Also relevant is whether a sentence of probation would unduly depreciate the
seriousness of the offense. See State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997); Bingham, 910
S.W.2d at 456.

        To qualify for consideration for punishment in the community, an offender must meet all of
the following criteria:

                 (A) Persons who, without this option, would be incarcerated in a correctional
        institution;

               (B) Persons who are convicted of property-related, or drug-or alcohol-related
        felony offenses or other felony offenses not involving crimes against the person as
        provided in title 39, chapter 13, parts 1-5;


                                                  -3-
                (C) Persons who are convicted of nonviolent felony offenses;

               (D) Persons who are convicted of felony offenses in which the use or
        possession of a weapon was not involved;

                (E) Persons who do not demonstrate a present or past pattern of behavior
        indicating violence; [and]

               (F) Persons who do not demonstrate a pattern of committing violent
        offenses[.]

Tenn. Code Ann. § 40-36-106(a)(1) (2006). Under the “special needs” provision of the statute, an
offender who does not otherwise meet the criteria above “and who would be usually considered
unfit for probation due to histories of chronic alcohol or drug abuse, or mental health problems, but
whose special needs are treatable and could be served best in the community” may be considered
eligible for a community corrections sentence. Tenn. Code Ann. § 40-36-106(c) (2006).

       A trial court may deny alternative sentencing and sentence a defendant to confinement based
on any one of the following considerations:

              (A) Confinement is necessary to protect society by restraining a defendant
        who has a long history of criminal conduct;

                (B) Confinement is necessary 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) Measures less restrictive than confinement have frequently or recently
        been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1) (2006).

        The trial court based its denial of alternative sentencing on the defendant’s poor potential for
rehabilitation as well as the need to avoid depreciating the seriousness of his crime. The trial court’s
ruling states in pertinent part:

                I find that the presumption has been overcome in this case. I am considering
        all the factors set out in the statutory scheme. And in this case, I am particularly
        concerned about his potential or lack of potential for rehabilitation, including the risk
        of committing another crime while on probation. And I will direct counsel’s
        attention to 40-35-103[(5)]. My concern here is that indeed he was not committing
        crimes while he was incarcerated. And now he is not only not meeting the technical


                                                  -4-
       requirements of the reporting statute -- and I would be the first to agree, I suspect the
       General would, that it’s a very, very elaborate and technical statute. But he was
       living with a minor in the same age range that his victim had been before he went to
       the penitentiary before. There is no question he knew that was not something he was
       allowed to do. And . . . respectfully, I’ll have to disagree with my good friend
       [defense counsel], I think that’s a very serious crime. When someone with this
       record of sexual activity is living with a minor, that’s a very serious matter in my
       mind.

        We find no error in the trial court’s sentencing determinations. As the trial court noted, the
disturbing aspect of the case is not the defendant’s failure to timely report his address and
employment changes, but the fact that he was discovered to be living with a child who was in the
same age range as was his stepdaughter at the time he committed the aggravated sexual batteries
against her. The defendant reported that he had not used alcohol or drugs since his release from
prison and, thus, could not blame his decision to live with a minor child on any impairment in his
thinking caused by chronic drug or alcohol abuse. We conclude, therefore, that the record fully
supports the trial court’s denial of the defendant’s request for a sentence involving probation or
community corrections.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgments of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




                                                 -5-
