         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs February 13, 2002

              STATE OF TENNESSEE v. BRADLEY R. FULCHER

                    Appeal from the Circuit Court for Williamson County
                      No. II-1100-368-B     Timothy L. Easter, Judge



                     No. M2001-01864-CCA-R3-CD - Filed April 18, 2002


The defendant, Bradley R. Fulcher, appeals the Williamson County Circuit Court’s denial of
alternative sentencing for his convictions for aggravated burglary, a Class C felony, and theft of
property valued over one thousand dollars but less than ten thousand dollars, a Class D felony. We
affirm the judgments of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Bradley R. Fulcher.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Mary Katharine Harvey, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        The defendant pled guilty to the charges pursuant to a plea agreement, by which he received
concurrent sentences of seven years for each offense as a Range II, multiple offender. The issue of
alternative sentencing was left to the trial court to decide. At the defendant’s guilty plea hearing,
the state presented the following factual account of the crimes: On June 26, 2000, the defendant
drove Jarrett Guy and Brian Bryant to the home of Richard and Cynthia Chavez. While the
defendant waited in his truck, Guy and Bryant broke into the Chavez home, ransacked the living
room, and stole a television, videocassette recorder (VCR), stereo, and Sony PlayStation. The men
also took two jewelry boxes, coins, and personal papers from a bedroom. Although the defendant
never entered the Chavez home, he helped Guy and Bryant load the stolen items into the back of his
truck. The three men used a green plastic tarpaulin that had been covering a woodpile on the
Chavezes’ rear deck to cover the items in the truck. The total value of the stolen items was
$2,074.99.
       Detective Adrian Breedlove of the Brentwood Police Department investigated the break-in
and asked the defendant to come to the police station for an interview. During the interview, the
defendant denied being a part of the burglary. However, during a second interview, the defendant
admitted driving Guy and Bryant to the Chavez home and acting as a lookout for the burglary. He
told Detective Breedlove that after the burglary, Guy and Bryant kept all of the stolen property,
except for the green tarpaulin. The defendant had his wife bring the tarpaulin to the police station
and give it to the police.

       At the sentencing hearing, Amir Karshenas testified that he worked for American Bonding
Company. He said that at the time of the hearing, the defendant had been his client for about eight
months and that as part of the defendant’s bond agreement, he required the defendant to telephone
him every week. He also required the defendant to let him know when the defendant was going out
of town. He said that the defendant had performed the agreement to his expectations and that the
defendant had always appeared in court.

       On cross-examination, Mr. Karshenas acknowledged telephoning the assistant district
attorney and asking her to file a motion to revoke the defendant’s bond on the basis that the
defendant had been arrested for assault in Davidson County while awaiting sentencing for the
offenses in question. He said that on the day that the trial court was to hear the state’s motion to
revoke bond, the defendant came to the courthouse early and left before court came into session. He
acknowledged that the trial court had issued a capias for the defendant’s failure to appear at the
motion hearing.

        The defendant testified that on the day of his bond revocation hearing, he panicked and left
the courthouse before court came into session. He said that he turned himself in to the police later
that day. He said that on the morning of the burglary, he told Guy and Bryant that he would not go
into the Chavez home. He said that the green tarpaulin was the only item that he got from the
burglary. The defendant acknowledged that between 1989 and 1995, he was arrested and convicted
fourteen times. He said that since 1996, he had been convicted of only three misdemeanors. He said
that he owned Fulcher’s Drywall and that he would lose his business if the trial court denied
alternative sentencing.

        On cross-examination, the defendant acknowledged that his prior record spanned six pages
of the presentence report, and he said that he had made a lot of mistakes. He said that he had used
cocaine and also had abused Valium and Xanax. He said that at the time of the sentencing hearing,
he had been in jail for two months and that he had not used marijuana for three months. He said that
he thought that his probation had been revoked four times and that his parole had been revoked once.

       The state introduced the defendant’s presentence report into evidence. The report reveals that
the then thirty-one-year-old defendant was married and a high school graduate. The defendant
reported that he was in excellent health and that he had no mental illnesses. The report shows that
between 1989 and 1995, the adult defendant was convicted of numerous felonies and misdemeanors,
including robbery, theft of property valued over five hundred dollars but less than one thousand

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dollars, theft of property valued at less than five hundred dollars, marijuana possession, driving with
a suspended license, driving under the influence of an intoxicant (DUI), criminal trespassing, and
disorderly conduct. From 1997 to 1999, the defendant also was convicted of marijuana possession,
assault, and unauthorized use of a vehicle. The report reveals that the defendant’s probation had
been revoked twice and that his parole had been revoked once. According to the report, the
defendant had been continuously employed in the drywall installation business since 1983, and he
earned one hundred thousand dollars per year from Fulcher’s Drywall.

        The defendant argued that the following mitigating factors applied to his case: (1) that his
conduct neither caused nor threatened serious bodily injury; (2) that he played a minor role in the
commission of the offense; and (3) that he assisted authorities in locating or recovering any property
or person involved in the crime. See Tenn. Code Ann. § 40-35-113(1), (4), (10). The trial court
stated that the defendant was presumed to be a favorable candidate for alternative sentencing under
Tenn. Code Ann. § 40-35-102(6). However, after hearing the testimony and considering the
presentence report, the trial court stated that the following factors weighed against alternative
sentencing: (1) confinement was necessary to protect society by restraining the defendant, who had
a long history of criminal conduct; (2) measures less restrictive than confinement had frequently
been applied unsuccessfully to the defendant; and (3) the defendant had a lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. § 40-35-103(1)(A), (B), -(103)(5). The trial court
did not state whether any enhancement or mitigating factors applied to the defendant’s case and
ordered that the defendant serve his effective seven-year sentence in the Tennessee Department of
Correction.

        The defendant contends that the trial court erred in denying alternative sentencing, claiming
that the trial court ignored the fact that since 1995, he has not been arrested for any felonies and has
been convicted of only three misdemeanors. He claims that he “proved to the trial court that he has
dramatically changed his lifestyle since 1996.” The state argues that the trial court properly found
that the defendant was not an appropriate candidate for alternative sentencing. We agree with the
state.

         When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. Tenn. Code Ann. § 40-35-401(d). However, the presumption of
correctness 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 burden is on the appealing party to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. This means that if the trial
court followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and principles
that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even
if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



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        When determining if incarceration is appropriate, a trial court should consider that (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing Tenn. Code Ann. §
40-35-103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set
forth in Tenn. Code Ann. §§ 40-35-113 and -114. Tenn. Code Ann. § 40-35-210(b)(5); State v.
Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Additionally, a trial court should consider
a defendant’s potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. Tenn. Code Ann.§ 40-35-103(5); Boston, 938 S.W.2d at 438. In
conducting a de novo review, we must consider (1) the evidence, if any, received at the trial and
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, (5) any mitigating
or statutory enhancement factors, (6) any statement that the defendant made on his own behalf, and
(7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see
Ashby, 823 S.W.2d at 168.

        Initially, we note that the defendant was sentenced as a Range II, multiple offender and,
therefore, was not entitled to the presumption that he was a favorable candidate for alternative
sentencing. See Tenn. Code Ann. § 40-35-102(6). Nevertheless, based upon our de novo review,
we conclude that the trial court did not err in ordering the defendant to serve his entire sentence in
incarceration. The defendant testified that he had fourteen prior convictions, and he acknowledged
that he had violated his probation and parole. Despite the defendant’s contention that he has made
“vast changes” in his life since 1996, he has continued to commit crimes, being convicted of three
misdemeanors and the two felony offenses in question. The record demonstrates that the defendant’s
previous sentences involving release into the community have been unsuccessful and that the
defendant does not reflect a high potential for rehabilitation. We believe that ample evidence exists
to support the trial court’s sentence of confinement.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.


                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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