         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    May 21, 2002 Session

                  STATE OF TENNESSEE v. JAMES L. PARTIN

                Direct Appeal from the Criminal Court for Claiborne County
                           No. 11508    E. Shayne Sexton, Judge



                                 No. E2001-02254-CCA-R3-CD
                                     September 5, 2002

Defendant, James L. Partin, was indicted for the offenses of second degree murder, aggravated
assault, three counts of felony reckless endangerment, and unlawful possession of a weapon with
intent to use it in the commission of felony reckless endangerment. Pursuant to a negotiated plea
agreement, Defendant pled guilty to voluntary manslaughter, a lesser-included offense of second
degree murder, and all other charges were dismissed. The plea agreement further provided that the
trial court would determine the length and manner of service of Defendant’s sentence, with the sole
parameter being that he be sentenced as a standard Range I offender. Following a sentencing
hearing, the trial court ordered that Defendant serve five years in confinement in the Department of
Correction. In this appeal, Defendant contends that the trial court erred in determining the length
and manner of service of his sentence. After a thorough review of the sentencing proceeding, we
affirm the judgment of the trial court concerning the length of Defendant’s sentence. We reverse the
trial court’s judgment regarding manner of service, however, and order that Defendant serve his
sentence on split-confinement.

                          Tenn. R. App. P. 3 Appeal as of Right;
         Judgment of the Circuit Court Affirmed in Part and Reversed in Part.

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

Michael G. Hatmaker, Jacksboro, Tennessee for the appellant, James L. Partin.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
William Paul Phillips, District Attorney General; Jared Effler, Assistant District Attorney General;
and Todd Longmire, Assistant District Attorney General, for the appellee, State of Tennessee.
                                              OPINION

                                               FACTS

       The evidence in the record concerning the circumstances leading to the voluntary
manslaughter conviction in this case consists of the prosecutor’s statement at the guilty plea hearing
and the Defendant’s version of the incident as contained in the presentence report.

      To sustain a factual basis for the guilty plea in accordance with Tennessee Rules of Criminal
Procedure 11(f), the following statement was made at the guilty plea hearing:

       [PROSECUTOR]:           May it please the Court, the parties stipulate that on or about
                               January the 29th of the year 2000 James L. Partin in Claiborne
                               County, Tennessee, did unlawfully, feloniously and
                               knowingly kill Lloyd Michael upon a sudden heat in hot
                               blood and with provocation, against the peace and dignity of
                               the State of Tennessee.

       The Defendant’s version of the events which lead to his commission of the crime are
contained in the presentence report as follows:

       I was at AC’s Bar until it closed and had drank 5-6 beers and 2 shots of liquor. When
       the bar closed, several of us moved the party over to the mobile home next to the bar
       which was the home of Jackie Evans, the woman who was bartender at AC’s. I was
       drinking at Jackie’s home and many were smoking marijuana as well as drinking.
       They were playing cards in the kitchen and I was in the living room. They were
       pranking Jackie Evans and she asked them to leave. Lloyd Michael [the victim] was
       sitting at the kitchen table and said something smart to me but Randal Webb escorted
       me outside and we talked and drank for maybe an hour. I was ready to go but I
       realized I had left a coat inside the trailer and I followed Randal in to the get the coat.
       When I came inside Lloyd Michael saw me and began to cuss me again. He was still
       sitting at the kitchen table. He came out of his chair with a gun in his hand he
       stumbled as he rose and I yelled ‘he has a gun” as he stumbled I was able to get my
       gun out of my pocket. It was a .357 magnum revolver loaded with 6 rounds. I fired
       several times in a wild pattern. I was scared that the others would shoot back at me.
       So I dropped the gun on the floor of the trailer grabbed my coat and left.

        Defendant did not testify at the sentencing hearing. The following additional information
has been gleaned from other portions of the presentence report and the testimony of various
witnesses at the sentencing hearing. Defendant was forty-three years old at the time of the offense,
and his prior record contains one criminal conviction: a DUI offense in November 1990. Defendant
married his current ex-wife, Carolyn, in 1975. They divorced in 1999 after twenty-three years of
marriage, but resumed cohabiting about a week later. They were still living together at the time of


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the sentencing hearing. Defendant and Carolyn have four grown children and four grandchildren.
(Their youngest child is twenty-one years old.)

         When Defendant was in tenth grade, he dropped out of high school to work in the coal mines
in Kentucky. For a period of about twenty-five years, he worked in strip mines as a heavy equipment
operator. Defendant claims that he has suffered from depression and nervous disorders since he was
a teenager and that his job has caused him to develop arthritis. Approximately two and one-half
years prior to his commission of the crime, his mental health deteriorated to the point he was unable
to work. Thereafter, Defendant’s depression problems were aggravated by the deaths of his cousin’s
son and a nephew in 1997, followed by his son’s involvement in an automobile wreck wherein he
sustained serious injuries. Defendant has applied for Social Security disability income. Carolyn
testified that Defendant was also taking medication for his depression and was participating in
professional counseling.

        Defendant told the probation board officer that he began to use alcohol when he was eighteen
or nineteen years old. In 1990, he quit drinking. He remained sober until 1999, at which point he
commenced drinking and going to bars on the weekends (approximately twelve beers each weekend).
He claimed that he quit visiting bars after he killed the victim in this case. Yet, at the time of the
presentence interview, he said that he was consuming “3 - 4 beers every other day or so.”

        At the sentencing hearing, the victim’s widow, sister, and brother gave testimony concerning
the impact the victim’s death had upon themselves and the victim’s minor children. It is clear from
the record that the victim was a positive influence upon his family and that his untimely death had
a devastating effect on the lives of several people.

                                            ANALYSIS

         Defendant contends that the trial court erred in determining both the length and the manner
of service of his sentence. Regarding the length, Defendant argues that the trial court misapplied the
enhancement factor concerning his prior criminal activity and, further, that those enhancement
factors which do apply are outweighed by the applicable mitigating factor. Concerning the trial
court’s denial of probation or any other form of alternative sentencing, Defendant asserts that the
trial court erred by denying him the presumption of alternative sentencing that he is entitled to under
Tennessee Code Annotated section 40-35-102(6). Defendant maintains that the trial court instead
required Defendant to show why the court should give him “the benefit of the doubt” concerning
alternatives to confinement, which impermissibly shifted the burden to him. For reasons which
follow, we agree with Defendant, in part, and therefore modify the manner of service of the sentence.

       When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review of the record with a presumption that the determinations made by the
sentencing court are correct. See Tenn. Code Ann. §§ 40-35-401(d), 40-35-402(d) (1997). If our
review “reflects that the trial court followed the statutory sentencing procedure, imposed a lawful
sentence after having given due consideration and proper weight to the factors and principles set out


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under the sentencing law, and that the trial court’s findings are adequately supported by the record,
then we may not modify the sentence even if we would have preferred a different result.” State v.
Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991). On the other hand, if the trial court failed to comply with the statutory guidelines, our
review is de novo without a presumption of correctness. State v. Poole, 945 S.W.2d 93, 96 (Tenn.
1997). Having concluded that the trial court failed to properly consider the relevant sentencing
principles in this case, our review of Defendant’s sentencing determination is de novo without a
presumption of correctness.

        On appeal, the defendant has the burden of establishing that the sentence is improper. See
Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In determining whether the
defendant has carried this burden, this Court must consider: (a) the evidence adduced at trial and/or
the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as
to sentencing alternatives; (d) the nature and characteristics of the offense and criminal conduct
involved; (e) the evidence and information offered by the parties on the enhancement and mitigating
factors in sections 40-35-113 and 40-35-114; (f) any statement the defendant wishes to make in his
own behalf about sentencing; and (g) the defendant’s potential or lack of potential for rehabilitation
or treatment. See Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997).

                                        I. Sentence Length

        The convicted offense in this case, voluntary manslaughter, is a Class C felony. Tenn. Code
Ann. § 39-13-211 (1997). The sentence range for a standard Range I offender convicted of a Class
C felony is not less than three (3) nor more than six (6) years. Tenn. Code Ann. § 40-35-112(a)(3)
(1997). If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for Class B, C, D, and E
felony offenses is the minimum sentence in the range. Where both enhancement and mitigating
factors are applicable to an offense, the sentencing court must start at the minimum sentence in the
range, enhance the sentence within the range as appropriate for the enhancement factors, then reduce
the sentence within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-
210(e) (1997 & Supp. 2001). No particular weight for each mitigating or enhancement factor is
prescribed by the statute. Where the trial court complies with the purposes and principles of the
sentencing act and its findings are supported by the record, the weight given each factor is left to the
discretion of the trial court. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Robinson,
971 S.W.2d 30, 48 (Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210, Sentencing
Commission Comments.

        The record reflects that, in setting the length of Defendant’s sentence, the trial court found
one mitigating factor and three enhancement factors appropriate to his case. As a mitigator, the trial
court utilized factor (2), applicable where “the defendant acted under strong provocation,” Tenn.
Code Ann. § 40-35-113(2) (1997). The trial court reasoned that the environment in which the crime
was committed, i.e., a mobile home where several people were simultaneously drinking, using drugs,
and in possession of firearms, created a “dangerous situation” where “problems are going to arise


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more often than not.” By its statement, the trial court implied that the atmosphere was at least
partially responsible for the conduct of the victim, as perceived by Defendant. However, the
provocation was not sufficient to constitute a defense. We find the record supports application of
this factor.

        As for enhancement factors, the trial court found the following applicable: (1) “[t]he
defendant has a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range”; (9) “[t]he defendant possessed or employed a firearm,
explosive device or other deadly weapon during the commission of the offense”; and (12) “[d]uring
the commission of the felony, the defendant willfully inflicted bodily injury upon another person,
or the actions of the defendant resulted in the death of or serious bodily injury to a victim or a person
other than the intended victim.” Id. § 40-35-114(1), (9), and (12). Defendant contends that
enhancement factor (1) was improperly applied and that the factors which do apply are outweighed
by the mitigating factor. We disagree.

         First, we find that factors (1) and (9) were applicable in this case, based upon Defendant’s
1990 conviction for DUI and his use of a firearm, respectively. However, the trial court erred in its
application of enhancement factor (12). The record reflects that the trial court found this factor
appropriate because “the offense was committed under circumstances where the potential for bodily
injury was high.” Then, the court stated that this factor “encompasses the spirit of what number 3
talks about where there’s more than one victim.” Our review of the statutory enhancement factors
reveals that the trial court was, in effect, attempting to combine three different factors, none of which
actually apply. Enhancement factor (16) is applied when the crime was committed under
circumstances where the potential for bodily injury to a victim was great. Clearly, this factor is
inappropriate here because great bodily injury to the victim is an element of the offense of voluntary
manslaughter. Enhancement factor (3), applicable where the offense involves more than one victim,
is also inappropriate here because it is limited in scope to persons or entities who have been “injured,
killed, had property stolen, or had property destroyed by the perpetrator of the crime.” State v.
Lewis, 44 S.W.3d 501, 507-08 (Tenn. 2001) (quoting State v. Raines, 882 S.W.2d 376, 384 (Tenn.
Crim. App. 1994)). The term “victims” also does not include those persons who have lost a loved
one or a means of support because the perpetrator of the crime killed a relative. Raines, 882 S.W.2d
at 384. We are aware of only one victim in this case, Lloyd Michael, and Defendant was convicted
for taking his life. Even in cases which involve numerous victims, application of factor (3) would
be improper where the defendant was separately convicted for an offense concerning each victim.
State v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002) (“there cannot be multiple victims for any one
offense . . . committed against a specific, named victim”). Lastly, the plain language of enhancement
factor (12) reveals that this factor is further inapplicable since, as we have stated, there is no
evidence that Defendant caused bodily injury to anyone other than the named victim when he fired
his weapon.

       Instead, the facts support the use of enhancement factor (10), applicable where “[t]he
defendant had no hesitation about committing a crime when the risk to human life was high.” Tenn.
Code Ann. § 40-35-114(10) (1997). It appears that the trial court was striving to enhance


                                                  -5-
Defendant’s sentence based on his admission that he fired his weapon “several times in a wild
pattern” at the scene where he killed Michael. Factor (10) has been deemed appropriate to enhance
a sentence where the defendant creates a high risk to the life of a person or persons other than the
victim. See State v. Bingham, 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995), overruled on other
grounds (State v. Hooper, 29 S.W.3d 1 (Tenn. 2001)); State v. Williamson, 919 S.W.2d 69, 83
(Tenn. Crim. App. 1995). Since the evidence certainly suggests that this was the case, use of factor
(10) is proper for enhancing Defendant’s sentence. Where, as in the present case, the trial court fails
to apply an enhancement factor which is appropriate for the offense and established by the record,
the appellate court is not precluded from applying the factor when undertaking its de novo review.
State v. Winfield, 23 S.W.3d 279, 283-84 (Tenn. 2000).

        The trial court weighed the enhancement factors against the mitigating factor and concluded
that a sentence of five years was appropriate. Even though the trial court may have erroneously
applied the wrong enhancement factor for Defendant’s “wild shooting” in a room containing several
people during the commission of the offense, we believe that the sentence of five years is clearly
justified based on the three enhancement factors found appropriate here. The latter two, factors (9)
and (10), merit great weight in our opinion and substantially outweigh the mitigating factor.
Defendant is not entitled to relief on this issue.

                                        II. Manner of Service

        As for the trial court’s denial of probation or any other form of alternative sentencing,
Defendant asserts that the trial court improperly denied him the presumption of alternative
sentencing that he is entitled to under Tennessee Code Annotated section 40-35-102(6). Defendant
maintains that the trial court’s insistence that he provide it with a reason not to sentence him to
confinement impermissibly shifted the burden to him. Accordingly, Defendant implores this Court
to modify his sentence of confinement to some form of alternative sentencing. We agree that the
trial court failed to properly determine the manner of service in Defendant’s case within the
principles and statutory guidelines set forth for such purpose. Consequently, we modify Defendant’s
sentence to one of split-confinement, with one year in confinement followed by four years probation,
for the following reasons.

         Defendant is a standard Range I offender convicted of a Class C felony. Thus, he is entitled
to the statutory presumption in favor of alternative sentencing. See Tenn. Code Ann. § 40-35-102(6)
(1997). The determination of whether Defendant is entitled to an alternative sentence and whether
he is entitled to full probation are different inquiries, however. See State v. Boggs, 932 S.W.2d 467,
477 (Tenn. Crim. App. 1996). Where a defendant is entitled to the statutory presumption favoring
alternative sentencing, the state has the burden of overcoming the presumption with evidence to the
contrary. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); Bingham, 910 S.W.2d at 455; see
Tenn. Code Ann. § 40-35-102(6), -103 (1997). On the other hand, the defendant bears the burden
of establishing suitability for full probation, even if he or she is entitled to the statutory presumption
of alternative sentencing. Bingham, 910 S.W.2d at 455; see Tenn. Code Ann. § 40-35-303(b)



                                                   -6-
(1997). Consequently, the issues concerning full probation and alternative sentencing must be
addressed separately.

       A. Full Probation

        To meet the burden of establishing suitability for full probation, a defendant must
demonstrate that full probation will “subserve the ends of justice and the best interest of both the
public and the defendant.” Bingham, 910 S.W.2d at 456 (quoting State v. Dykes, 803 S.W.2d 250,
259 (Tenn. Crim. App. 1990)). The following criteria, while not controlling the discretion of the
sentencing court, shall be accorded weight when deciding the defendant’s suitability for full
probation: (1) the nature and circumstances of the criminal conduct involved, Tenn. Code Ann. § 40-
35-210(b)(4); (2) the defendant’s potential or lack of potential for rehabilitation, including the risk
that during the period of full probation the defendant will commit another crime, see Tenn. Code
Ann. § 40-35-103(5); (3) whether a sentence of full probation would unduly depreciate the
seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and (4) whether a sentence other
than full probation would provide an effective deterrent to others likely to commit similar crimes,
Tenn. Code Ann. § 40-35-103(1)(B). See Bingham, 910 S.W.2d at 456.

        Here, Defendant is eligible for full probation because his sentence is eight years or less
(subject to some statutory exclusions not relevant here). See Tenn. Code Ann. § 40-35-303(a) (1997
& Supp. 2001). Although full probation must be automatically considered by the trial court as a
sentencing alternative whenever the defendant is eligible, “the defendant is not automatically entitled
to probation as a matter of law.” Id. § 40-35-303(b), Sentencing Commission Comments; State v.
Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). As noted above, a defendant seeking full
probation bears the burden of showing that the sentence imposed is improper and that full probation
will be in the best interest of the defendant and the public. State v. Baker, 966 S.W.2d 429, 434
(Tenn. Crim. App. 1997).

       In determining the manner of service, the record reflects that trial court made the following
statements:

                Now, how this sentence will be served. Although the defendant committed
       a class--convicted of a Class C felony is a presumptive good candidate for alternative
       sentencing, that is a rebuttable presumption. And I’ll tell you what I look for. I look
       for some reason, tell me some reason why I should allow Mr. Partin or anyone, not
       just you, but anyone in this situation, give them the benefit of the doubt. Tell me why
       I should give you a chance to redeem yourself when you’ve committed a felony such
       as this, not only voluntary manslaughter but any Class C felony.

               But when we’re talking about the taking of a person’s life, that’s such an
       important recognition of responsibility. And I’ve listened to the widow, listened to
       her talk about not only having to deal with her children who are suffering, which is



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        understandable, but the loss of income to her house, that she literally is at the point
        of destitution. And that’s the cost of taking a life.

                You know, Class C felonies also include theft of property over ten thousand
        dollars, but that’s the type of thing that simply--you know, we can get around--
        victims of those types of crimes can get over. But this is the type of crime that a
        victim, a victim’s family will never get over. And that’s the reason that I put the
        onus on the defendant to some extent to explain to me why, what is redeeming about
        your life? Tell me why you should not be in the penitentiary as opposed to being out
        in the public. What is it about you that tells me you’re going to do better, that you
        won’t do this type of thing anymore, that you’re going to work to support your
        family.

                And, frankly, in this case I haven’t heard anything that tells me, Mr. Partin,
        that you would somehow benefit society or there would be some reason to give you
        alternative sentencing. I looked hard for that . . . .
                ....

                But what’s happened here is a man has lost his life and a family has lost a
        leader. And I’m looking for some reason why I should let you have an alternative
        sentence and I found none. I found none. And I’ve tried to give you the benefit of
        the doubt in that analysis. I simply don’t think--first of all, it is your burden to show
        probation. I don’t think that that burden has been shown . . . .

(Emphasis added.)

        We concur with the trial court’s above determination in one aspect: Defendant has failed to
demonstrate that full probation will “subserve the ends of justice and the best interest of both the
public and the defendant.” We base our conclusion upon Defendant’s continued consumption of
alcohol, even after committing the instant offense, and the circumstances of the offense, i.e.,
Defendant’s unabashed and “wild” shooting of a firearm into a crowd of people. However,
incarceration for the full sentence term is not justified based upon the facts in the record before us.

         The law is clear. When deciding the defendant’s suitability for full probation, a trial court
should consider the criteria specified above, i.e., (1) the nature and circumstances of the criminal
conduct involved, (2) the defendant’s potential or lack of potential for rehabilitation, (3) whether a
sentence of full probation would unduly depreciate the seriousness of the offense, and (4) whether
a sentence other than full probation would provide an effective deterrent to others likely to commit
similar crimes. Although facts and circumstances may exist which clearly show Defendant’s
suitability, or the lack thereof, with regard to these criteria, the record is devoid of any indication that
the trial court properly considered even one at any length, with the possible exception of the first:
the nature and circumstances of the criminal conduct involved. With regard to this criterion, the trial
court commented primarily on the heinous nature of the crime of manslaughter and the dire

                                                    -8-
circumstances it poses to the persons close to the victim. While the unlawful killing of another
human is certainly a tragedy, we are aware that our legislature is obviously cognizant of this fact.
Thus, in determining the various felony classifications and punishment ranges for various criminal
activities, the legislature assigned to the offense of voluntary manslaughter a classification which it
considered appropriate: voluntary manslaughter, a Class C felony, is an offense for which the
offender is eligible for full probation or some other form of alternative sentence, notwithstanding the
fact that a human life was taken when the offense was committed. Therefore, the fact that a life is
lost in the commission of this crime cannot be a fact used to preclude full probation or any other
form of alternative sentencing, until the legislature so provides.

       In sum, we are mindful that a defendant bears the burden of establishing suitability for full
probation. While we do not find that Defendant has demonstrated that full probation would be
appropriate, the record also contains nothing which suggests that he is entirely unsuitable for other
forms of alternative sentencing. Thus, based on the facts that (1) Defendant’s criminal record is
meager; (2) the record contains no evidence that partial probation would unduly depreciate the
seriousness of the offense; (3) the record contains no proof that incarceration, with no probation,
would provide an effective deterrent to others likely to commit similar crimes; and (4) the proof does
not demonstrate that Defendant’s potential for rehabilitation is necessarily poor, we find a sentence
with partial probation is justified here. Although Defendant is not automatically entitled to full
probation as a matter of law, alternative sentencing must be automatically considered by the trial
court whenever the defendant is eligible. The record suggests that this did not occur.

        B. Alternative Sentencing

         As a Range I standard offender convicted of a Class C felony, Defendant may be presumed
a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.
Tenn. Code Ann. § 40-35-102(6) (1997). Such evidence includes proof that (1) “confinement is
necessary to protect society by restraining the defendant who has a long history of criminal conduct,”
(2) “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 (3) “measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant.” Id. § 40-35-103(1)(A)-(C); see Ashby, 823 S.W.2d at 169. In
addition, a defendant’s potential for rehabilitation or lack thereof may also be considered. Tenn.
Code Ann. § 40-35-103(5) (1997).

        Upon de novo review, we first note that the circumstances surrounding the offense in this
case fail to support a finding of either (1), (2) or (3), supra. First, the record is devoid of proof that
confinement is necessary to protect society by restraining Defendant based upon his long history of
criminal conduct. Defendant’s criminal history is scant, containing only one prior DUI conviction
in 1990. Consequently, neither have measures less restrictive than confinement frequently or
recently been applied unsuccessfully to him.




                                                   -9-
        The record also fails to demonstrate that confinement, at least for the entire five-year term,
is necessary to avoid depreciating the seriousness of the offense or that it would provide an effective
deterrence to others. Regarding the seriousness of the offense, this Court has stated that “[i]n order
to deny an alternative sentence based on the seriousness of the offense, ‘the circumstances of the
offense as committed must be especially violent, horrifying, shocking, reprehensible, offensive, or
otherwise of an excessive or exaggerated degree,’ and the nature of the offense must outweigh all
factors favoring a sentence other than confinement.” State v.Bingham, 910 S.W.2d 448, 454 (Tenn.
Crim. App. 1995) (citation omitted). Although the death of the victim caused by Defendant’s
criminal behavior is certainly a serious matter, we are unable to conclude that the circumstances of
the offenses in this case meet the above standard for confinement on this basis.

        With respect to deterrence, our supreme court has emphasized that “the record must contain
some proof of the need for deterrence before a defendant, who is otherwise eligible for probation or
other alternative sentence, may be incarcerated.” State v. Hooper, 29 S.W.3d 1, 9, (Tenn. 2000)
(emphasis added). In this case, even the minimal requirements of Hooper are unmet. The prosecutor
presented no proof whatsoever concerning the need for deterrence at Defendant’s sentencing hearing.

        Finally, as previously observed, Defendant may have some potential for rehabilitation. This
is a proper consideration in also determining whether sentence alternatives other than probation are
appropriate. In any case, the record also contains no proof that his potential for rehabilitation is poor.

        In light of the above considerations, we conclude that the trial court erred when it failed to
impose alternative sentencing in this case. While full probation is not appropriate, we conclude that
a sentence of split confinement is proper here. The only findings by the trial court which “rebut” the
statutory presumption that Defendant is a favorable candidate for alternative sentencing are
statements which reflect the court’s obvious abhorrence for Defendant’s crime. Tennessee Code
Annotated section 40-33-306 provides, in relevant part:

        A defendant receiving probation may be required to serve a portion of the sentence
        in continuous confinement for up to one (1) year in the local jail or workhouse, with
        probation for a period of time up to and including the statutory maximum time for
        the class of the conviction offense.

Tenn.Code Ann. § 40-35-306(a) (1997). Therefore, we modify Defendant’s sentence for voluntary
manslaughter to a sentence of five years, with one year confinement in the county jail followed by
four years of probation.

                                           CONCLUSION

        We affirm the judgment of the trial court concerning the length of Defendant’s sentence.
With regard to the manner of service, we are compelled to reverse the judgment of the trial court
based upon the facts presented by the State at the sentencing hearing, the findings or lack thereof by
the trial court, and the applicable statutes. In lieu of total incarceration, we modify Defendant’s


                                                  -10-
sentence to reflect a sentence of five years, with one year confinement followed by four years of
probation.


                                                     ____________________________________
                                                     THOMAS T. WOODALL, JUDGE




                                              -11-
