         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs March 19, 2003

              STATE OF TENNESSEE v. GEORGE C. PEERY, III

                 Direct Appeal from the Criminal Court of Sullivan County
                           No. S45,062    R. Jerry Beck, Judge



                                 No. E2002-01682-CCA-R3-CD
                                         June 13, 2003

Defendant, George C. Peery, III, appeals his sentence of split confinement imposed upon his plea
of guilt to aggravated burglary, a Class C felony, and theft under $500, a Class A misdemeanor. In
his appeal, Defendant requests full probation and challenges the imposition of a one-year period of
confinement followed by two years probation in the community corrections program for his felony
conviction. Defendant does not challenge his misdemeanor sentence. We affirm the trial court's
denial of full probation but reverse the one-year period of confinement and remand for modification
of the judgment to reflect a period of confinement of 10.8 months to be served in the local jail or
workhouse. In addition, because there is a conflict between the transcript and the judgment, we
remand this case for correction of the judgment.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant Public Defender,
Blountville, Tennessee, for the appellant, George C. Peery, III.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        On October 4, 2000, Jeff Peters told the Bristol Police Department that his residence had
been burglarized. Several pieces of personal property were stolen including two reciprocating saws.
Mr. Peters said there was no sign of a forced entry and surmised that the intruders had used a spare
key which was hidden under a sprinkler in the yard. A short while later, Detective Charlie Thomas
interviewed Defendant in connection with the burglary. During the interview, Defendant confessed
his involvement because he wanted to “straighten things out.” According to Defendant, he drove
Keith Bowman, the boyfriend of Mr. Peters’ daughter, to the Peters’ residence knowing that Mr.
Bowman intended to “rob” the household. Defendant watched as Mr. Bowman exited the house
carrying a box of stolen items including the saws. Defendant then drove Mr. Bowman to Bluff City
so that Mr. Bowman could sell the saws to his uncle, Mark White. Although Defendant was not
present when the sale was made, he expected to receive some of the proceeds for his role in the
offense. Mr. Bowman, however, never paid Defendant his share of the sales proceeds.

       Based on the information provided by Defendant, Mr. Peters’ reciprocating saws were
recovered from Mr. White. Mr. White’s statement was partially consistent with Defendant’s except
that Mr. White said that the sale of the saws took place at his job site in Bristol.

        On April 11, 2001, Defendant was indicted on one count of aggravated burglary, a Class C
felony, and one count of theft of property under $500.00, a Class A misdemeanor. On February 21,
2002, Defendant pled guilty to both charges. As recommended by the plea agreement, Defendant
received a three-year sentence as a Range I standard offender for the Class C felony conviction and
an eleven month, twenty-nine day sentence for the misdemeanor charge, with the sentences to be
served concurrently for an effective sentence of three years.

        The trial court held a sentencing hearing on June 28, 2002 to determine the manner of service
of the sentence. During his testimony, Defendant said that he was twenty-two years old, and lived
in Bristol with his wife and baby daughter. Defendant’s wife did not work outside the home, and
Defendant was the family’s sole support. Defendant currently worked for his father in his
automobile repair and landscaping company receiving approximately $200.00 per week in pay.
Although Defendant had dropped out of high school in the tenth grade, he had completed his G.E.D.
in 1997 and intended to enroll in Northeast State Technical Community College as soon as he was
able to secure financing. Defendant admitted he had used alcohol and marijuana in the past.
However, Defendant said that his last drink of alcohol was on New Year’s Eve, 2001, and he had
not used marijuana in about a year.

       During his interview with the Bristol Police Department, Defendant freely confessed and
agreed to testify against Mr. Bowman. Defendant accepted responsibility for his actions and
expressed remorse for the offense.

        Defendant testified that he had charges pending in the Kingsport General Sessions Court for
driving on a suspended license, possession of a suspended license, violation of the light law and
violation of the registration laws. Although the pre-sentence report showed that he had additional
charges pending in the Bristol General Sessions Court for theft of property under $500.00, and
possession of marijuana and drug paraphernalia, the general sessions court was unable to find a
warrant when Defendant inquired about the charges.

        In response to the trial court’s inquiries, Defendant said that the assault charge referenced in
his juvenile record had been dismissed. However, Defendant admitted he had been committed to


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the custody of the Department of Children’s Services in 1997 as a result of his other juvenile
offenses and spent nine months in the Taft Youth Center. On cross-examination, Defendant revealed
that his other juvenile offenses included convictions for possession of a loaded weapon, shoplifting,
automobile burglary and theft, destruction of property, contributing to the delinquency of a minor,
various traffic and driving related convictions and two convictions for “grand larceny.” Defendant
explained that the girl involved in his contributing to the delinquency of a minor conviction was now
his wife, and the offense occurred when the two of them ran away together. Defendant said that he
had not spent any time in confinement as a result of his convictions except for his time at the Taft
Youth Center.

       Defendant’s father, Mr. George Peery, Jr., verified Defendant’s employment with his
company and agreed to supervise Defendant during any probation the trial court might grant. Mr.
Peery admitted that Defendant had encountered problems in the past but was doing much better at
the time of the sentencing hearing.

        In determining whether a period of confinement was appropriate, the trial court’s primary
concern was the number of convictions Defendant had received over a relatively short period of time
while a juvenile. The trial court also noted that it believed that most of Defendant’s juvenile
delinquent acts would have constituted felony crimes if Defendant had committed the offenses as
an adult. The trial court observed that the opportunities for rehabilitation extended by the juvenile
court system apparently had little effect on Defendant’s conduct, and Defendant had not spent one
day in confinement other than the restrictions encountered at the Taft Youth Center. However,
because of his youthful appearance, the trial court was reluctant to place Defendant in the Tennessee
Department of Correction. Moreover, the trial court accredited Mr. Peery’s testimony to a certain
extent that his son’s behavior had improved over recent months. Based on these factors, the trial
court denied Defendant full probation and imposed a one-year period of incarceration as part of
Defendant’s split-confinement sentence.

        Defendant now appeals his sentence arguing first that the trial court erred in not granting him
full probation. Secondly, if split confinement is appropriate, Defendant argues that the trial court
erred in sentencing Defendant to a period of confinement in excess of the release eligibility date
applicable to Defendant’s sentence for his felony conviction.

A. Standard of Review

        When a defendant challenges the length or the manner of service of his or her sentence, this
Court must conduct a de novo review with a presumption that the determinations made by the trial
court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn.
2002). This presumption, however, is contingent upon an affirmative showing in the record that the
trial court considered the sentencing principles and all relevant facts and circumstances. State v.
Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). If the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).


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        In making its sentencing determinations the trial court must consider: (1) the evidence
presented at the trial and sentencing hearing; (2) the pre-sentence report; (3) the principles of
sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the
criminal conduct; (5) any appropriate enhancement and mitigating factors; (6) the defendant’s
potential or lack of potential for rehabilitation or treatment; and (7) any statements made by
Defendant in his own behalf. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Williams, 920
S.W.2d 247, 258 (Tenn. Crim. App. 1995). If the trial court has imposed a lawful sentence by
following the statutory sentencing procedure, given due consideration and proper weight to the
factors and sentencing principles, and made findings of fact adequately supported by the record, this
Court may not modify the sentence even if it would have preferred a different result. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of
showing that his sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission
Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        Because Defendant does not fall within the class of offenders for whom incarceration is a
priority and is a standard offender convicted of a Class C felony, Defendant is presumed to be an
eligible candidate for alternative sentencing. Tenn. Code Ann. §§ 40-35-102(5) and (6). Moreover,
Defendant, whose imposed sentence is less than eight years, is eligible to serve his alternative
sentence on full probation. Id. -303(a). The trial court extended the presumption of alternative
sentencing to Defendant but sentenced him to split confinement instead of probation. See Tenn.
Code Ann. § 40-35-306. Defendant was ordered to serve one year in the local jail with the balance
of his three-year sentence served on supervised probation with participation in the community
corrections program as a condition of probation. See Tenn. Code Ann. § 40-36-106(f).

        Defendant argues that the trial court erred in not granting him full probation. Although
eligible, a defendant is not automatically entitled to full probation and bears the burden of
establishing that full probation will be in the best interests of the defendant and the public. Tenn.
Code Ann. § 40-35-303(b) (1997) (Sentencing Commission Comments); State v. Hartley, 818
S.W.2d 370, 373 (Tenn. Crim. App. 1991); State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim.
App. 1995), overruled in part, State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). In determining
whether to grant or deny full probation, the trial court may consider the circumstances of the offense,
the defendant’s potential or lack of potential for rehabilitation, whether full probation will unduly
depreciate the seriousness of the offense, and whether a sentence other than full probation would
provide an effective deterrent to others likely to commit similar crimes. Tenn. Code Ann. §§
40-35-210(b)(4), 40-35-103(5), 40-35-103(1)(B); Bingham, 910 S.W.2d at 456.

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also Ashby, 823 S.W.2d at 169.



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       There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d 301,
305 (Tenn. Crim. App. 1994). Sentencing must be determined on a case-by-case basis, tailoring each
sentence to that particular defendant based upon the facts of that case and the circumstances of that
defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

B. Full Probation

        The trial court concluded that a period of confinement was appropriate because of
Defendant’s extensive juvenile record consisting of two convictions for “grand larceny” and
convictions for possession of a loaded weapon, shoplifting, automobile burglary and theft,
destruction of property, contributing to the delinquency of a minor, and various traffic and driving
related convictions. Defendant, on the other hand, argues that incarceration was inappropriate
because his record as an adult is sparse and does not indicate that measures less drastic than
confinement have been applied unsuccessfully. Based on this argument, Defendant feels that his
juvenile record should be disregarded in the determination of the manner in which his sentence
should be served. Although admittedly Defendant’s adult criminal record is not as long as the record
he amassed as a juvenile, Defendant had just turned twenty-one when he committed the present
offenses. This Court has previously determined that a defendant’s “juvenile record of criminal
conduct may properly be considered in assessing a suitable sentence upon a felony conviction by an
adult.” State v. Stockton, 733 S.W.2d 111 (Tenn. Crim. App. 1986); Tenn. Code Ann. § 37-1-133.
Defendant’s extensive juvenile record supports the trial court’s finding that Defendant has a long
history of criminal conduct. Tenn. Code Ann. § 40-35-103(1)(A).

         Moreover, although not discussed by the trial court, Defendant’s inability to abide by the
probationary terms extended by the juvenile courts clearly supports a conclusion that measures less
restrictive than confinement have recently and frequently been unsuccessful. Tenn. Code Ann. § 40-
35-103(1)(C). Beginning in March, 1997, shortly before he turned seventeen, Defendant was
convicted of reckless driving and placed in the custody of the Tennessee Department of Children’s
Services. Four days later he was charged with curfew violation. In April, 1997, he was convicted
again of reckless driving followed by convictions for destruction of property and “grand larceny” on
May 26, 1977. Defendant was also charged with two counts of aggravated assault but testified at
the sentencing hearing that these charges were later dismissed. As a result of the May 26
convictions, Defendant was sentenced to six months, the sentence was suspended, and Defendant
was placed on probation. However, two days later, on May 28, 1997, Defendant was arrested and
later convicted of burglary of an automobile and theft. On May 29, 1997, Defendant was again
arrested for “grand larceny” followed by arrests for shoplifting on June 5, 1997, and possession of
a loaded weapon on June 8, 1997. He was convicted of all three offenses and again placed on
probation. Defendant testified that he also used illegal drugs during this time.




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        The trial court also considered the applicability of enhancement factor (20) in determining
the manner of service of Defendant’s sentence and concluded that Defendant had committed offenses
as a juvenile which would constitute felonies if committed as an adult. Tenn. Code Ann. § 40-35-
114(20). Based on the limited information contained in the pre-sentence report, however, only
Defendant’s conviction for burglary of an automobile would qualify as a felony if Defendant had
committed the offense as an adult. See Tenn. Code Ann. §§ 39-14-402(a)(4) and (d). The acts which
led to “grand larceny” charges occurred after 1989, and therefore should have been designated as
“theft” offenses. See Tenn. Code Ann. § 39-14-101. We would have to assume from this record that
the two thefts were felonies involving property greater than $500.00 in value when they were
designated as “grand larcenies”; we are unable to do so, however, because “grand” versus “petit”
larceny depended on a value greater than $200.00 under prior law. See Tenn. Code Ann. § 39-3-
1103 (repealed 1989). In addition, whether or not Defendant’s convictions for shoplifting and
destruction of property would constitute felonies depends on the value of the property stolen or
destroyed, and the record does not reveal that information. See Tenn. Code Ann. §§ 39-14-103, -
105, -146 and -408.

        Nonetheless, the record amply supports the trial court’s sentence of a period of confinement.
Defendant’s numerous convictions as a juvenile, which include at least one offense that would
constitute a felony, and the repeated but unsuccessful periods of probation extended to Defendant
without any noticeable rehabilitative effect, support the trial court’s conclusion that some period of
confinement is necessary. Based upon our review, we conclude that Defendant has failed to
demonstrate that he is entitled to full probation.

C. Split Confinement

         Defendant argues, and the State concedes, that the trial court’s imposition of a sentence of
confinement in excess of the time required for Defendant to reach his eligibility date of release was
improper. We agree. This Court has previously determined that the period of confinement which
a defendant is ordered to serve in a split confinement cannot exceed the defendant’s release
eligibility date. Thornton v. State, No. E2003-00393-CCA-R8-PC, 2003 WL 1233478 (Tenn. Crim.
App., Knoxville, March 17, 2003); State v. Hudson, No. E2001-00377-CCA-R3-CD, 2002 WL
264625 (Tenn. Crim. App., Knoxville, February 19, 2002), perm. to appeal denied (Tenn. 2002);
State v. Bradshaw, No. 01C01-9810-CR-00439, 1999 WL 737871 (Tenn. Crim. App., Knoxville,
Sept. 22, 1999).

        A Range I standard offender is eligible for release after serving thirty percent of his or her
sentence. Tenn. Code Ann. § 40-35-501(c). The sentencing range for a Class C felony is three to
six years. Tenn. Code Ann. § 40-35-112(a)(3). With a three-year minimum sentence, Defendant
will be eligible for release after 10.8 months. Therefore, we remand this case for entry of an
amended judgment reflecting a sentence of split confinement with 10.8 months to be served in the
local jail or workhouse concurrently with the misdemeanor sentence and the balance served on
probation with participation in the community corrections program as a condition of probation.



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D. Correction of Judgment

        At the sentencing hearing, the trial court stated that it intended to sentence Defendant to split
confinement with the period of confinement to be served in the Sullivan County Jail. The judgment
form, on the other hand, reflects that Defendant is sentenced to the Department of Correction for
three years. Although the “special conditions” section of the judgment says that Defendant will serve
one year in jail, the judgment form shows that Defendant is to serve his sentence in the community
corrections program.

         The judgment is not clear, therefore, whether Defendant was placed on probation as part of
his split confinement or placed in the community corrections program, but the distinction between
the two forms of alternative sentencing is significant. A defendant who is permitted to participate
in the community corrections program is actually serving his sentence while in the program in lieu
of incarceration. Tenn. Code Ann.§ 40-36-106(e)(1). Conversely, a defendant’s sentence is
suspended while he is on probation. Tenn. Code Ann. § 40-35-303(c). In the event of revocation,
a defendant on probation receives no credit for time served, but a participant in the community
corrections program does. Compare Tenn. Code Ann. § 40-35-310 with Tenn. Code Ann. § 40-36-
106(e)(3)(B). After a probation is revoked, the defendant’s original sentence is executed. Tenn.
Code Ann. § 40-35-310. If a defendant is removed from a community corrections program, the trial
court may resentence the defendant for a period of incarceration up to the maximum sentence
provided for the offense less credit for the time spent in the program. Tenn. Code Ann. § 40-36-
106(e)(4); see State v. Crook, 2 S.W.3d 238, 240 (Tenn. Crim. App. 1998).

        When there is a conflict between the transcript of evidence and the judgment, the transcript
controls. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). The transcript of the
sentencing hearing shows that the trial court intended to sentence Defendant to split confinement
pursuant to Tennessee Code Annotated section 40-35-306 with participation in the community
corrections program a condition of probation. Accordingly, we remand this case to the trial court
for correction of the judgment to reflect the actual sentence imposed as set forth in the transcript.
Tenn. R. Crim. P. 36.

                                           CONCLUSION

         For the foregoing reasons, we affirm the trial court’s judgment regarding the appropriateness
of split confinement but remand the case for entry of an amended judgment reflecting a period of
confinement of 10.8 months and to correctly state the sentence imposed as set forth in this opinion.

                                                        ____________________________________
                                                        THOMAS T. WOODALL, JUDGE




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