        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 28, 2011

                 STATE OF TENNESSEE v. ANGELA COLLEY

             Direct Appeal from the Criminal Court for Sullivan County
                        No. S56,033    R. Jerry Beck, Judge


               No. E2011-00250-CCA-R3-CD - Filed December 5, 2011


The Defendant-Appellant, Angela Colley, entered guilty pleas to selling 0.5 grams or more
of cocaine on June 9, 2008 (count one), delivering 0.5 grams or more of cocaine on June 9,
2008 (count two), selling less than 0.5 grams of cocaine on June 17, 2008 (count three), and
delivering less than 0.5 grams of cocaine on June 17, 2008 (count four) in the Sullivan
County Criminal Court. Pursuant to her plea agreement, count two merged with count one
and count four merged with count three, and Colley received a sentence of eight years at
thirty percent for count one and a concurrent sentence of three years at thirty percent for
count three, for an effective sentence of eight years, with the manner of service to be
determined by the trial court. At the sentencing hearing, the trial court denied all forms of
alternative sentencing. On appeal, Colley argues that the trial court erred in denying her
request for an alternative sentence. Upon review, we reverse the judgments of the trial court
and remand for entry of judgments sentencing Colley to community corrections and for
consideration of other terms and conditions that the trial court deems appropriate pursuant
to the Community Corrections Act.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
                             Reversed and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., J., joined. J OHN E VERETT W ILLIAMS, J., filed a dissenting opinion.

Katherine L. Tranum, Kingsport, Tennessee, for the Defendant-Appellant, Angela Colley.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and D. Adam Moore, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION
                               FACTUAL BACKGROUND

       Facts. On June 9, 2008, Colley sold and delivered 0.5 grams or more of crack cocaine
to a confidential informant in exchange for $200. This sale was witnessed by an officer with
the Bristol Police Department and was recorded on videotape. On June 17, 2008, Colley sold
and delivered less than 0.5 grams of crack cocaine to a confidential informant. Colley
acknowledged that she committed the aforementioned offenses to support her own drug
habit. We note that Colley did not include the plea submission hearing transcript in the
record on appeal. Instead, we gleaned the facts regarding the above offenses from the
sentencing hearing transcript, the presentence investigation report, and the indictment. As
we will explain, we conclude that this record is sufficient for our review of the issues on
appeal, despite the absence of the transcript from the plea submission hearing.

        At the October 29, 2010 and January 31, 2011 sentencing hearings, the State entered
a presentence investigation report into evidence, which showed that Colley had a criminal
history composed solely of misdemeanors. Specifically, Colley had two convictions for
speeding and two convictions for public intoxication, as well as convictions for shoplifting,
failure to change lanes, and unlawful drug paraphernalia. The report also showed that Colley
was placed on supervised probation for her convictions for public intoxication and possession
of drug paraphernalia on January 5, 2009. In addition, on that same day, a violation of
probation was issued against Colley for her failure to pay her probation fees. This violation
was dismissed when Colley paid her probation fees on April 7, 2010. Colley was also placed
on probation for her shoplifting conviction.

      The presentence investigation report further showed that on July 12, 2000, Colley was
charged with cruelty and injury to her child in the Juvenile and Domestic Relations District
Court in Bristol, Virginia. On October 23, 2000, Colley entered a guilty plea to the
misdemeanor charge of contributing to the delinquency of a minor.

       In the instant case, Colley’s mother, father, sister, and friend wrote letters on her
behalf stating that Colley was no longer using drugs and requesting that she receive an
alternative sentence.

        October 29, 2010 Sentencing Hearing. In reviewing the presentence investigation
report, the trial court stated that it gave weight to Colley’s unlawful drug paraphernalia and
shoplifting convictions. Also, the court gave “minor weight” to the two convictions for
public intoxication and gave no weight to the traffic offenses. The court stated that it wanted
to hear Colley’s testimony regarding the child cruelty charge from Bristol, Virginia. In
addition, the trial court said that the fact that Colley obtained her GED and then attended
some college classes was a “favorable factor.” The court acknowledged that Colley’s conduct

                                              -2-
neither caused nor threatened serious bodily injury, that Colley had expressed remorse for
her actions, and that Colley had support from her family. See T.C.A. § 40-35-113(1), (13)
(2006). The court said that it had reviewed the letters sent on Colley’s behalf.

       Colley testified that she currently lived with her mother because her mother needed
assistance following knee surgery. Colley stated that she was pregnant, and her child was
due November 4, 2010. She also said that she had successfully completed supervised
probation for her conviction for unlawful drug paraphernalia.

        Colley admitted that she had previously been addicted to cocaine but said she had not
used drugs since November 2008. She stated that she currently took only prenatal vitamins
and that she was last prescribed medication for knee and back pain in 2009. Colley said that
she tried to attend an inpatient drug rehabilitation program, but the program she contacted
had a waiting list of two to three years. She also said that she had attended drug and alcohol
abuse counseling while she was on probation and was currently attending the counseling on
a weekly basis after the conclusion of her probation. However, Colley said that she could
not submit proof of her attendance at these counseling sessions because she was attending
them voluntarily. Colley stated that she had passed all of the drug screens through her doctor
and while on probation. She acknowledged that she had not been employed since 2005 and
that her family provided her financial support. Colley stated she would live with her father
if the court granted her probation.

        Regarding the child cruelty charge in Bristol, Virginia, Colley said that she had been
arrested for this offense after a day care worker saw marks on her son’s body. She stated that
her sister picked up her son the day that the marks were first discovered, but she was arrested
the next day when she took him back to day care. At the hearing, Colley denied inflicting
the injuries to her child and maintained that the marks were from a fall her child sustained
while at the day care center. She admitted that she initially had been charged with felony
child abuse but that this charge had been reduced to a misdemeanor offense. Colley denied
serving a sentence in confinement or a probationary sentence for the criminal offense. She
said that she was visited by social services two to three times a week for a year before the
civil case regarding custody of her son was dismissed.

       On cross-examination, the State asked the following questions of Colley:

       The State:    Do you remember speaking with – with a detective up in
                     Virginia and being interviewed and giving a verbal and a written
                     statement that you were the one who put the marks on your son?

       Colley:       Never did.

                                              -3-
The State:    You never gave a written statement to the detectives in this case
              that you put marks on your son?

Colley:       I have a – I have a witness here today that can verify that. She’s
              the one that picked my son up that day of that incident. . . .

....

The Court:    [D]id you give a statement to the Bristol police . . . wherein you
              admitted putting the marks on the child?

Colley:       I remember giving a statement. I don’t remember –

The Court:    And he’s going to show you a copy of it, I guess.

Colley:       – I don’t remember.

The State:    Could I hand up a copy, Your Honor, to refresh her memory
              about that?

([Colley] reviews certain material.)

Colley:       This statement is . . . I mean, I remember this. But I never put
              the marks on my child that day, so . . .

The State:    Okay. I guess my question, ma’am. You realize you’re under
              oath. Is that right?

Colley:       Yes. And I’ve never abused [my child.]

....

The State:    . . . [M]y question to her was: Did she give verbal or written
              statements to the officer in this case admitting to putting marks
              on her son? That was my question.

....

The Court:    Did you or didn’t you?



                                       -4-
       Colley:       No, I do not remember giving Sean Carrigan a statement that
                     said I did put marks on my child, because I didn’t.

       The State:    So your answer is: No, you did not give a verbal or written
                     statement to the detectives?

       Colley:       I do not remember giving him a statement.

Following this testimony, the trial court ordered Colley to submit to a drug screen. The court
then continued the sentencing hearing in order to hear testimony from Detective Carrigan
about Colley’s statement regarding the child cruelty charge.

       January 31, 2011 Sentencing Hearing. Sean Carrigan, a detective with the police
department in Bristol, Virginia, testified that he investigated a child cruelty case in which
Colley was charged in July 2000. Detective Carrigan stated that he spoke with Colley about
this charge on July 11, 2000, while her son was receiving medical attention for his injuries.
Detective Carrigan said that Colley initially told him that her son had received the injuries
from a fall but then said that another child may have hurt him. Later in the conversation,
Colley told Detective Carrigan that she had thrown her son on a sofa and that her son had
been playing with a light socket before she pulled him away from it. Finally, Detective
Carrigan said that after he pointed out the inconsistencies in Colley’s versions of what had
happened, Colley became emotional and admitted that she had caused the bruises by
grabbing her son too tightly when he was throwing a fit. Detective Carrigan stated that
Colley’s son suffered “extensive bruising on the undersides of the armpits and on the chest.”
He identified Colley as the individual who made the confession to him on July 11, 2000.

        After Colley’s verbal confession, Detective Carrigan advised her of her Miranda
rights, and Colley gave a written statement admitting to accidentally injuring her son.
Detective Carrigan stated that Colley’s written statement was not as detailed as her verbal
confession to him, and he opined that Colley’s written statement was not as complete because
she “was reluctant to admit her full guilt.” He said that Colley was not under the influence
of an intoxicant at the time of her statement; however, he asserted that she was not
cooperative. Detective Carrigan stated that he remembered Colley entering a guilty plea to
a misdemeanor charge regarding the incident. He also said that Colley filed a formal
complaint against him because “she did not like the fact that I had called her a liar.”

       When the State asked Colley to clarify her previous testimony in which she denied
giving a statement regarding the child cruelty charges, Colley said that she did not remember
giving a statement. Colley then said that Detective Carrigan informed her that she would go



                                             -5-
to jail if she did not provide a statement regarding the incident. Colley claimed her statement
was not admission of guilt but an explanation of how her child might have been injured:

       [T]he statement that I do remember that I did write was maybe how it could
       have happened. Because when I picked my son up from day care and he had
       those marks, I wasn’t sure how they got there. So the statement was of maybe
       how it could have happened.

Colley stated that she currently was unable to attend drug and alcohol abuse counseling
because her father had died and she had recently given birth to her son.

       On cross examination, Colley stated that her sister actually filed the formal complaint
against Detective Carrigan. The State then asked her the following questions about her
statements to Detective Carrigan regarding the child cruelty charge:

       Q.     . . . . But when I asked you if you had ever given an oral or a written
              statement to Detective Carrigan, you first said, “Never.” Then you said,
              “I don’t remember that.”

       A.     I mean, I really did not remember. I mean, ‘cause [sic] at the time he
              was screaming and yelling at me in the Food City parking lot on Euclid
              Avenue. And he was telling me if I didn’t write a statement I was
              going to jail.

       Q.     That’s what Detective Carrigan told you in the car?

       A.     And I didn’t . . . That’s why I don’t remember if I wrote it or not
              because I didn’t do it.

       Q.     He was screaming and yelling at you, and you were being charged with
              a felony abuse of your child, but you don’t remember if you gave a
              statement or not in that case?

       A.     No, I don’t. Because he was . . . The statement that I did end up writing
              was maybe how it could have happened.

       Q.     I thought you said a few minutes ago that you didn’t remember . . .
              giving a written statement.

       A.     I remember giving the statement now that I’ve seen it. Yes.

                                              -6-
       Q.     When I asked you that on that date and showed you the charges, you
              said you had never given a statement.

       A.     I – I really did not remember give – at the time if I gave one or not. No,
              I do not remember. At the time I didn’t.

      At the close of proof at the sentencing hearing, the trial court noted that while Colley’s
criminal history was not “earthshaking[,]” it did include “prior suspended sentences” for
unlawful drug paraphernalia and shoplifting. The court then stated:

              [Colley] is . . . not the perfect candidate for probation or alternative
       sentencing. In having a . . . hearing . . . the Court [wants] to hear truthful
       information coming from the Defendant, as oftentime [sic] that is indicative
       of whether [he or she] would be successful on probation or alternative
       sentencing. Her testimony . . . concerned the Court.

              Well, she first denied making a statement to this . . . Bristol, Virginia,
       officer. Later equivocated and said she didn’t remember.

             This goes to the heart of the purposes of probation hearings. If the
       Court can’t receive accurate and truthful information, the Court doubts
       whether the person would be . . . a good risk on probation.

              ....

                And I’ll be quite frank with you. I’ll draw it – if she’s going to appeal
       it, I’ll draw the issue real[ly] clearly. She would have probably made some
       form of alternative sentencing had it not been for the lie that she never gave a
       statement to the officer, then equivocating later on about it, about her
       statement she gave to the officer. I would have probably gone to our
       residential Community Corrections program in Kingsport, which is like a
       halfway house. Because she probably has drug problems, too.

              But when it’s this – this equivocation and flat-out saying [sic] that she
       didn’t even give the officer a statement about it. I’m going to deny probation,
       all forms and all kinds.

       At the conclusion of the sentencing hearing, the trial court denied all forms of
alternative sentencing and determined that Colley would serve her effective sentence of eight
years in the Tennessee Department of Correction. Colley filed a timely notice of appeal.

                                              -7-
                                         ANALYSIS

       As previously stated, Colley failed to include the transcript from the plea submission
hearing in the record on appeal. However, because we conclude that the record is sufficient
for our review, we will address the issues presented on appeal. See State v. Anna M.
Steward, No. E2010-01918-CCA-R3-CD, 2011 WL 4346659, at *2 (Tenn. Crim. App., at
Knoxville, Sept. 19, 2011) (“Despite the absence in the appellate record of a transcript of the
plea submission hearing, we hold that the record is adequate for this court’s de novo
review[.]”).

        Colley argues that the trial court erred in denying alternative sentencing based on a
“misunderstanding” regarding her testimony at the sentencing hearing. Specifically, she
contends that the trial court erroneously concluded that she testified dishonestly about
whether she gave a statement to the police in the child cruelty case, which was over ten years
old. She claims that “she did not ‘lie’ to the court[] but that the court misunderstood the
testimony and that the questions the prosecution was asking her were confusing and
convoluted.” Colley also argues that she is a favorable candidate for alternative sentencing
given her limited criminal history, her previous success on probation, her family support, her
drug-free status, her voluntary participation in drug abuse counseling, and the non-violent
nature of her offenses. Finally, she argues that the State failed to present evidence that she
was not a favorable candidate for alternative sentencing and contends that the trial court
failed to impose the least restrictive sentence necessary to achieve the goals of the sentencing
act. In response, the State contends that the trial court was justified in denying an alternative
sentence based on Colley’s lack of candor regarding the child cruelty offense, her criminal
history, her history of drug abuse, and her sporadic work history. We disagree.

        On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action 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 defendant has the burden of showing the
impropriety of the sentence. T.C.A. § 40-35-401(d) (2006), Sentencing Comm’n Comments.
This means that if the trial court followed the statutory sentencing procedure, made adequate
findings of fact that are supported by the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, this court “may not disturb the sentence even if we would have preferred a different
result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Because the trial



                                               -8-
court did not properly consider the factors contained in section 40-35-103(1), our review is
de novo with no presumption of correctness. See Ashby, 823 S.W.2d at 169.

       A trial court, when sentencing a defendant, must consider the following:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;

       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

T.C.A. § 40-35-210(b) (2006); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002);
State v. Osborne, 251 S.W.3d 1, 24 (Tenn. Crim. App. 2007).

       Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated
section 40-35-102(5) (2003) gives courts guidance regarding the types of individuals who
should be required to serve their sentence in confinement:

              In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the laws
       and morals of society, and evincing failure of past efforts at rehabilitation shall
       be given first priority regarding sentencing involving incarceration[.]

       Colley argues that she is a favorable candidate for alternative sentencing. However,
the record shows that she was convicted of a Class B felony and a Class C felony and was
sentenced to concurrent sentences of eight years and three years. See T.C.A. § 39-17-
417(c)(1)-(2)(A) (2006). Accordingly, Colley is not considered a favorable candidate for

                                               -9-
alternative sentencing under Tennessee Code Annotated section 40-35-102(6) (2006), which
states that a defendant who does not require confinement under subsection (5) and “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[.]” A trial court, when imposing a sentence of total confinement,
should base its decision on the following factors:

       (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[.]

T.C.A. § 40-35-103(1)(A)-(C) (2006); see also Ashby, 823 S.W.2d at 169.

        We initially note that the trial court’s determination of whether the defendant is
entitled to an alternative sentence and whether the defendant is a suitable candidate for full
probation are different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d
467, 477 (Tenn. Crim. App. 1996). Where a defendant is considered a favorable candidate
for alternative sentencing, the State has the burden of presenting evidence to the contrary.
See State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, the defendant has the
burden of establishing suitability for full probation, even if the defendant is considered a
favorable candidate for alternative sentencing. See id. (citing T.C.A. § 40-35-303(b)). Here,
the State had no burden of presenting evidence to the contrary because Colley was not
considered a favorable candidate for alternative sentencing. See T.C.A. § 40-35-102(6)
(2006).

       Here, Colley was eligible for probation because her sentence was ten years or less and
the offense for which she was sentenced was not specifically excluded by statute. T.C.A. §
40-35-303(a) (2006). A trial court shall automatically consider probation as a sentencing
alternative for eligible defendants. Id. § 40-35-303(b) (2006). However, “the defendant is
not automatically entitled to probation as a matter of law.” Id. § 40-35-303(b) (2006),
Sentencing Comm’n Comments. Rather, the defendant must demonstrate that probation
would serve the ends of justice and the best interests of both the public and the defendant.
See State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citation omitted).

                                             -10-
        When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, his present condition, including physical and mental condition, the
deterrent effect on the defendant, and the best interests of the defendant and the public. See
State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568
S.W.2d 285 (Tenn. 1978)). The court should also consider the potential for rehabilitation or
treatment of the defendant in determining the appropriate sentence. See T.C.A. §
40-35-103(5) (2006). In addition, the principles of sentencing require the sentence to be “no
greater than that deserved for the offense committed” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-35-103(2),
(4) (2006). In addition, “[t]he 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[,]” and “[t]he length of a term of probation may reflect the length of
a treatment or rehabilitation program in which participation is a condition of the sentence[.]”
Id. § 40-35-103(5). Finally, the Tennessee Supreme Court has held that truthfulness can be
indicative of a defendant’s potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282,
289 (Tenn. Crim. App. 1999) (“Lack of candor and credibility are indications of a
defendant’s potential for rehabilitation.”); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)
(citing State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981)) (A defendant’s
truthfulness “is certainly a factor which the court may consider at a probation hearing.”).

        Colley also argues that “she is eligible for, but not automatically entitled to, a
community corrections sentence” because she was convicted of non-violent felonies. The
State responds that the trial court was justified in denying all alternative sentencing options
based on Colley’s lack of candor, history of criminal behavior, history of drug abuse, and
sporadic work history. We again disagree.

       The intent of the Community Corrections Act was to “[e]stablish a policy within the
state to punish selected, nonviolent felony offenders in front-end community based
alternatives to incarceration, thereby reserving secure confinement facilities for violent
felony offenders.” T.C.A. § 40-36-103(1) (2006). Eligible offenders under the Community
Corrections Act include:


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

                                              -11-
        (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;
        (F)      Persons who do not demonstrate a pattern of committing violent
                 offenses; and
        (2)      Persons who are sentenced to incarceration or are on escape at the time of
                 consideration will not be eligible for punishment in the community.


Id. § 40-36-106(a)(1)(A)-(F), (2) (2006). Simply because an offender meets the minimum
requirements under the Community Corrections Act “does not mean that he is entitled to be
sentenced under the Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288, 294
(Tenn. Crim. App. 1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.
1987)). Instead, the Act’s criteria “shall be interpreted as minimum state standards, guiding
the determination of eligibility of offenders under this chapter.” T.C.A. § 40-36-106(d)
(2006).

       In this case, Colley agreed to an effective eight-year sentence pursuant to her plea
agreement. Although the trial court imposed a sentence of total confinement, it failed to base
its sentencing decision on any of the factors in Tennessee Code Annotated section
40-35-103(1)(A)-(C) (2006).1 Although Colley had a criminal record, we cannot conclude
that her record, consisting solely of misdemeanors, constituted “a long history of criminal
conduct” pursuant to section 40-35-103(1)(A). Second, we cannot conclude that the
circumstances of the offenses were so “violent, horrifying, shocking, reprehensible, [or]
offensive” as to require a denial of alternative sentencing based on the seriousness of the
offense pursuant to section 40-35-103(1)(B). State v. Bottoms, 87 S.W.3d 95, 103 (Tenn.


        1
          We note that the trial court, in denying all forms of alternative sentencing, held that Colley’s lack
of candor regarding the child cruelty case reflected poorly on her potential for rehabilitation pursuant to
section 40-35-103(5). A panel of this court has concluded that “the untruthfulness of the defendant is
relevant ‘in determining the sentence alternative’ and not as authority to deny all forms of alternatives to
incarceration.” State v. Kevin S. Phillips, No. 03C01-9801-CR-00024, 1999 WL 135058, at *3 (Tenn. Crim.
App., at Knoxville, Mar. 12, 1999), perm. to appeal denied, concurring in results only (Tenn. Sept. 13, 1999);
see also State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. 1994) (holding that a defendant’s potential for
rehabilitation pursuant to section 40-35-103(5) becomes a factor for consideration only after the trial court
has determined that a sentence of total confinement is improper).




                                                     -12-
Crim. App. 2001) (internal quotations and citations omitted); State v. Hartley, 818 S.W.2d
370, 374–75 (Tenn. Crim. App. 1991); State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981).
Moreover, a review of the record shows that no proof was presented at the sentencing
hearing regarding the need to deter others from committing similar offenses pursuant to
section 40-35-103(1)(B). Nunley, 22 S.W.3d at 286 (holding that in order to use deterrence
as a justification for confinement, evidence must be presented indicating some special need
for deterrence in that jurisdiction). Third, other than Colley’s failure to timely pay a single
fine while on supervised probation, there was no proof that “[m]easures less restrictive than
confinement have frequently or recently been applied unsuccessfully” to her pursuant to
section 40-35-103(1)(C). Furthermore, we conclude that the trial court’s decision to impose
a sentence of total incarceration is unduly harsh given the facts and circumstances of this case
and that Colley is a proper candidate for community corrections. Upon de novo review of
the record, we reverse the judgments of the trial court and remand for entry of judgments
sentencing Colley to community corrections and for consideration of other terms and
conditions that the trial court deems appropriate pursuant to the Community Corrections Act.

                                       CONCLUSION

       Upon review, we reverse the judgments of the trial court and remand the case for entry
of judgments sentencing Colley to community corrections and for consideration of other
terms and conditions that the trial court deems appropriate pursuant to the Community
Corrections Act found in Tennessee Code Annotated section 40-36-101 et seq.


                                                     _________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                              -13-
