      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE               FILED
                           JULY 1998 SESSION
                                                        August 25, 1998

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,             )
                                ) C.C.A. No. 01C01-9708-CC-00357
      Appellee,                 )
                                ) Williamson County
V.                              )
                                ) Honorable Henry Denmark Bell, Judge
UTHER CHRISTIAN,                )
                                ) (Sentencing - Probation Denial)
      Appellant.                )
                                )




FOR THE APPELLANT:                 FOR THE APPELLEE:

John H. Henderson                  John Knox Walkup
District Public Defender           Attorney General & Reporter
407 C Main Street
P.O. Box 68                        Elizabeth B. Marney
Franklin, TN 37065-0068            Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   Joseph D. Baugh
                                   District Attorney General

                                   John Barringer
                                   Assistant District Attorney General
                                   P.O. Box 937
                                   Franklin, TN 37065-0937




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                    OPINION



       On January 3, 1997, the appellant, Uther Christian, pled guilty to

possession of cocaine over .5 grams with intent to sell or deliver, which is a

Class B felony. Following a sentencing hearing on June 27, 1997, the trial court

fined the appellant $2,000 and sentenced him to serve eight years in the

Tennessee Department of Correction.



       The appellant’s sole issue for our review is whether the trial court erred in

failing to order an alternative sentence. We affirm.



       The appellant argues that the trial court erred by denying him an

alternative sentence. In his brief, the appellant admits that he has eight prior

misdemeanor convictions; one prior felony conviction in 1979 for simple robbery

for which he received a three-year suspended sentence; a pending charge for

failure to appear; and a pending charge for aggravated robbery, which he denies.

The appellant’s argument essentially consists of his assertion that he should not

be ordered to serve his sentence in confinement because he is addicted to crack

cocaine and needs drug treatment. The appellant testified at the sentencing

hearing that although he had been in a veterans’ hospital in the last five or six

years, he did not receive treatment for his drug problem. He contends that he

was in the mental health department at the hospital and received treatment for

depression.



       The state contends that the trial court properly denied alternative

sentencing. It asserts that the appellant, by pleading guilty to a Class B felony, is

not entitled to the statutory presumption that he is a suitable candidate for

alternative sentencing. In fact, the state, in its brief, contends that the

appellant’s criminal history indicates “a clear disregard for the laws of society and

evinces a failure of past effort[s] at rehabilitation.” It notes that in addition to the



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appellant’s previous convictions, he had pending charges for failure to appear

and for aggravated robbery at the time of the sentencing hearing. Furthermore,

the state argues that the appellant “has previously benefitted from lenient

sentencing but has continued to violate the law.” Specifically, it notes that the

appellant’s conviction in the case sub judice occurred just ten days after his

conviction for criminal trespass in February 1996. Finally, the state insists that

past efforts to rehabilitate the appellant have failed because he has been in a

hospital for drug rehabilitation several times during the last five or six years.



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

sentence, this Court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d) (1997). However, this presumption is conditioned on an affirmative

indication 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 appellant bears the burden of showing that the sentence was

improper. Id. In determining whether the appellant has met this burden, this

Court must consider (a) the evidence adduced at trial and the sentencing

hearing; (b) the presentence report; (c) the principles of sentencing; (d) the

arguments of counsel; (e) the nature and characteristics of the offense; and (f)

the appellant’s potential or lack of potential for rehabilitation or treatment. Tenn.

Code Ann. §§ 40-35-103(5), -210(b) (1997).



       The first step is to determine whether the appellant is entitled to the

statutory presumption that he is a favorable candidate for alternative sentencing.

For a defendant to be entitled to this presumption, three criteria must be met

under Tennessee Code Annotated §§ 40-35-102(5) and -102(6) (1997): the

defendant must be an especially mitigated or standard offender; he or she must



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be convicted of a Class C, D, or E felony; and he or she must not fall within the

parameters of Tennessee Code Annotated § 40-35-102(5), which states that a

defendant cannot have a criminal history that shows a “clear disregard for the

laws and morals of society” or “failure of past efforts at rehabilitation.” The

appellant pled guilty to a Class B felony, has a prior criminal history, and has

been on probation in the past. Thus, based upon the foregoing, he is not entitled

to the statutory presumption as a suitable candidate for alternative sentencing.



       Tennessee Code Annotated § 40-35-103 (1997) provides the following

guidance regarding sentencing:

       (1) Sentences involving confinement should be based on 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.


Furthermore, Tennessee Code Annotated § 40-35-103(5) provides that the

“potential or lack of potential for the rehabilitation or treatment of the defendant

should be considered in determining the sentence alternative or length of a term

to be imposed.”



       The appellant, not the state, has the burden of establishing suitability for

full probation. Tenn. Code Ann. § 40-35-303(b) (1997). To meet this burden,

the appellant must illustrate how 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)).



       In its decision, the trial court found that the three enhancement factors

relied upon by the state outweighed the six mitigating factors relied upon by the



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defense. With numerous misdemeanor convictions, one prior felony conviction,

and two pending charges, one for aggravated robbery and one for failure to

appear, at the time of the sentencing hearing for the instant offense, the

appellant has had every opportunity to prove that he can function in society

without being a threat to others. However, he has allowed his drug addiction to

control his behavior; and the appellant, who has suffered gunshot wounds, is not

only a threat to others but also to himself. Furthermore, at the sentencing

hearing, the appellant admitted that he had violated his probation once or twice

in the past. He has failed to carry the burden of proving that an alternative

sentence would be in his best interest or in the best interest of the public.



       We affirm the trial court’s judgment.




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                                      ________________________
                                      PAUL G. SUMMERS, Judge



CONCUR:



_____________________________
DAVID G. HAYES, Judge




_____________________________
JERRY L. SMITH, Judge




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