            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs December 20, 2006

             STATE OF TENNESSEE v. JERRY LYNN OSBORNE, JR.

                        Appeal from the Criminal Court for Sullivan County
                           Nos. S50,631, S50,761   Jerry Beck, Judge



                      No. E2006-01100-CCA-R3-CD - Filed February 8, 2007


In May of 2005, the Defendant, Jerry Lynn Osborne, Jr.1, was indicted for one count of theft under
$500, seven counts of identity theft, and seven counts of fraudulent use of a debit card. In July of
2005, the Defendant was indicted for one count of driving under the influence and one count of theft
over $1000. He pled guilty to all of the indicted charges and received an effective sentence of four
years in the Department of Correction. The Defendant requested an alternative sentence of either
probation or community corrections, which the trial court denied. The Defendant now argues that
the trial court erred by denying his request for an alternative sentence. We affirm the judgments of
the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
JAMES CURWOOD WITT , JR., JJ., joined.

Terry L. Jordan, Blountville, Tennessee, for the appellant, Jerry Lynn Osborne, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Greeley Wells, District Attorney General; and James F. Goodwin, Assistant District
Attorney General, for the appellee, State of Tennessee.




        1
         The initial indictment referred to the Defendant as “Jerry I. Osborne.” However, the subsequent indictment,
the judgments, and the transcripts refer to the D efendant as “Jerry Lynn Osborn.” W e will use the name “Jerry Lynn
Osborne” in this opinion.
                                            OPINION

Background

        On May 31, 2005, the Defendant was indicted in case number S50,631 for one count of theft
under $500, seven counts of identity theft, and seven counts of fraudulent use of a debit card. The
stipulation of facts at the guilty plea hearing showed the following factual basis for the plea:

               [O]n or about February 16, 2005, the Defendant took a debit card,
               belonging to [his half-sister] from her home and used the card several
               times on February 16th and 17th, 2005, and that he used it without her
               permission. . . . The Defendant used the victim’s debit card and her
               PIN number to effect [sic] taking money from her . . . bank account.


The subsequent investigation determined that the Defendant accumulated $543.50 in unauthorized
charges in seven separate transactions.

        On July 13, 2005, the Defendant was indicted in case number S50,761 for one count of
driving under the influence and one count of theft over $1000. At the guilty plea hearing, the State
offered the following factual support for these charges:

       [O]n or about March 5th, 2005, . . . Officer Graham [of the Bristol Police
       Department] responded to the Shell station on Volunteer Parkway in Bristol, Sullivan
       County, Tennessee. He went there in reference to two . . . subjects in a white Ford
       Tempo . . . possibly intoxicated and throwing glass out of the vehicle. While Officer
       Graham was in route to the Shell station, he received a dispatch call stating that the
       vehicle had pulled out of the Shell and was traveling south on Volunteer Parkway.
       A short time later he received another dispatch call stating that the vehicle made a U-
       turn and was now traveling north on Volunteer Parkway. Officer Johnson, also of
       the Bristol Tennessee Police Department, was able to located [sic] the vehicle on
       Volunteer Parkway . . . .

               Officer Graham spoke to the driver of the vehicle, who was later identified
       by his Tennessee Driver’s License as the Defendant, Jerry Lynn Osborne, Jr., and
       while speaking with [the Defendant], Officer Graham noticed or detected a strong
       odor of alcohol about his person. [The Defendant] advised that he’d had two . . .
       twenty-two . . . ounce beers about two . . . hours prior to this encounter with the
       police.

               Officer Graham requested [the Defendant] to perform several field sobriety
       tests, which he was unable to perform satisfactorily. At that point, the officer placed
       [the Defendant] under arrest for driving under the influence.


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               Officer Johnson advised that the vehicle may be stolen, because Officer
         Johnson noticed that the passenger side window was broken out; that the steering
         column had been damaged, and that there were no keys in the ignition.

                The officers ran the tag on the vehicle, which came back as belonging to
         Frontier Health in Kingsport, also in Sullivan County.

                 Dispatch made contact with an employee of Frontier Health, . . . [who]
         advised the vehicle was supposed to be parked on the lot at Frontier Health and that
         no one should have possession of the vehicle. Later, it was determined by officers
         that the value of the car was approximately Five Thousand Dollars . . . , and that the
         damage to the car, to the window and to the steering column, was approximately Six
         Hundred Dollars . . . .

                [The Defendant] agreed to take a test. A blood test was administered. The
         blood alcohol came back as a point one three (.13).

         The Defendant pled guilty to all of the seventeen indicted offenses on January 3, 2006. In
accordance with the plea agreement, the Defendant was sentenced to two years in case number
S50,631 to run consecutively to a two-year sentence in case number S50,761.2 The Defendant’s
total effective sentence was four years in the Department of Correction. The manner of service of
the sentences was left to the discretion of the trial court.

        On April 27, 2006, the Sullivan County Criminal Court held an alternative sentencing
hearing. The Defendant testified that he was twenty-two years old and had three children, ages four,
two, and six months. The Defendant testified that he supported his wife and three children with his
managerial position at a Wendy’s restaurant. The Defendant stated that his job involved his handling
money and that he received no complaints regarding his financial responsibilities. The Defendant
stated that he had a vandalism conviction, “a number of criminal trespass [convictions,]” and three
pending driving offense charges. The Defendant explained that he had an alcohol and drug problem
and that he resorted to criminal activity to fund his cocaine use; however, the Defendant stated that
alcohol and drug use was no longer a problem in his life even though he had not received formal
counseling since his recent stints of drug use. The Defendant stated that, at his interview for the pre-
sentence report, he tested negative for any illegal substances. The Defendant also volunteered to take
a drug test that day to prove he was not using illegal substances. The Defendant requested an
alternative sentence so he would be able to support his dependent wife and children.

       On cross-examination, the Defendant admitted that his prior criminal record since age
eighteen, which had been a span of only four years, consisted of seven pages of listed offenses. The
Defendant admitted that he had been placed on supervised probation at least twelve times since he


         2
          The Defendant received concurrent sentences for each of the counts in case number S50,631 and also received
concurrent sentences for each of the counts in case number S50,761.

                                                        -3-
was eighteen years old. The Defendant stated that he had not used alcohol for approximately five
months and had not used cocaine or non-prescribed pain medications for approximately nine months.
The Defendant admitted that he did use cocaine while he was on bond for prior charges and also
stated that he used marijuana while he was incarcerated during the previous year. The Defendant
also admitted to using methamphetamine but stated that that was “a long time ago.”

        The presentence report reflects that, at the time of sentencing, the Defendant was twenty-two
years old and married with three children. His formal education ended during the tenth grade. He
has a history of employment as an hourly worker, most recently as a cook and night manager at a
Wendy’s restaurant.

        At the conclusion of the sentencing hearing, the trial court denied the Defendant’s request
for an alternative sentence, reasoning as follows:

               The Defendant had a prior shock incarceration back on [June 15,
               2001] on a possession of crack charge. He has, by my count, . . .
               sixteen . . . prior suspended sentences given by General Sessions
               Court Judges. . . . The Defendant is facing four years. Judges have
               tried shock incarceration previously. There has been treatment
               before. The Defendant has just been in trouble all of his life for
               something. He does have a drug and probably also an alcohol
               problem, which the Court is required to consider under residential
               community corrections or community corrections. He’s just built too
               much of a record. He does work. He has a substantial job at this
               time, but he just has too many prior offenses. Probation will be
               denied. The Court’s also considered community corrections and
               residential community corrections, but it’s just a continuing thing.
               Other Judges have failed.
                                            Analysis

        The Defendant’s sole issue on appeal is whether the trial court erred in denying an alternative
sentence. A defendant who does not possess a criminal history showing a clear disregard for
society’s laws and morals, who has not failed past rehabilitation efforts, and who “is an especially
mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code
Ann. § 40-35-102(6); see also State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The following
considerations provide guidance regarding what constitutes “evidence to the contrary” which would
rebut the presumption of alternative sentencing:

               (A) Confinement is necessary to protect society by restraining a
               defendant who has a long history of criminal conduct;




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                 (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[.]

Tenn. Code Ann. § 40-35-103(1); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the defendant’s potential for rehabilitation or treatment in determining
the appropriate sentence. See id. § 40-35-103(5).

                                             A. Probation
         The Defendant first argues that the trial court erred by not granting him probation. A
defendant is eligible for probation if the actual sentence imposed upon the defendant is eight years
or less and the offense for which the defendant is sentenced is not specifically excluded by statute.3
See Tenn. Code Ann. § 40-35-303(a). The trial court shall automatically consider probation as a
sentencing alternative for eligible defendants; however, the defendant bears the burden of proving
his or her suitability for probation. See id. § 40-35-303(b). No criminal defendant is automatically
entitled to probation as a matter of law. See id. § 40-35-303(b), Sentencing Commission Comments;
State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). 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).

        In determining whether to grant probation, the court must consider the nature and
circumstances of the offense; the defendant’s criminal record; his or her background and social
history; his or her present condition, both physical and mental; the deterrent effect on the defendant;
and the defendant’s potential for rehabilitation or treatment. See id. If the court determines that a
period of probation is appropriate, it shall sentence the defendant to a specific sentence but then
suspend that sentence and place the defendant on supervised or unsupervised probation either
immediately or after the service of a period of confinement. See Tenn. Code Ann. §§ 40-35-303(c),
-306(a).

       The trial court found that the Defendant did not deserve probation because he had already
been given “sixteen . . . prior suspended sentences” and had “too much of a record.” The trial court
noted that the Defendant had “been in trouble all of his life for something” and that “prior shock
incarceration” was unsuccessful in deterring the Defendant from committing criminal offenses.
Therefore, the trial court denied probation.


        3
          For crimes committed on or after June 7, 2005, sentences of ten years or less are eligible to be served on
probation if not specifically excluded by statute.

                                                        -5-
        On appeal, the Defendant claims the trial court erred because the presumption that he
deserved an alternative sentence had not been rebutted by “evidence to the contrary.” See Tenn.
Code Ann. § 40-35-102(6); see also State v. Hooper, 29 S.W.1, 5 (Tenn. 2000). The Defendant
states that, “while the [Defendant] does have a history of criminal conduct, the nature of his prior
convictions are not of a serious nature.” The Defendant further asserts that his criminal offenses “do
not rise to the level that would demand incarceration to avoid depreciating their serious nature”
because they are “property crime type offenses,” which “the legislature has deemed probatable and
no one was harmed in the commission of the criminal acts.” Finally, the Defendant argues that his
“drug problem was the driving force behind the commission of these acts,” but he states that he no
longer uses drugs or alcohol, has obtained gainful employment, and supports his wife and three
children.

         The State argues that the Defendant’s criminal record is lengthy and that the numerous
previous suspended sentences demonstrate that confinement is necessary to deter the Defendant from
further criminal activity. The State contends that “[t]here is no presumption in this case that the
[D]efendant is a [favorable] candidate for probation, in light of his prior criminal history and prior
unsuccessful attempts at rehabilitation.” Therefore, the State asserts that “[t]he record fully supports
the trial court’s findings and its determination denying the [D]efendant an alternative sentence.”

        Even assuming that the Defendant was entitled to the presumption in favor of alternative
sentencing, the presumption was overcome by evidence to the contrary. First, the trial court found
that the Defendant has “a long history of criminal conduct.” See Tenn. Code Ann. § 40-35-
103(1)(A). The presentence report reflects two vandalism convictions, three aggravated criminal
trespass convictions, six criminal trespass convictions, and several traffic and alcohol related
offenses. He also has a significant juvenile court history. His criminal history alone provides
sufficient “evidence to the contrary” to overcome the presumption favoring an alternative sentence,
but the trial court properly found that the Defendant also fits into another category provided by the
legislature. Specifically, the trial court found that “[m]easures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant.” Id. § 40-35-103(1)(C). The
trial court particularly focused on the fact that the “prior shock incarcerations” had no effect on the
Defendant and that he had “sixteen . . . prior suspended sentences” that were unsuccessful because
the Defendant had continued his criminal acts.

        In light of the State’s proof and the Defendant’s proof, the trial court properly found that the
Defendant failed to meet his burden of demonstrating his suitability for probation. Although the
Defendant primarily argues on appeal that confinement is not necessary to “avoid depreciating the
seriousness of the offense[s,]” see Tenn. Code Ann. § 40-35-103(1)(B), the trial court did not base
its denial of probation upon this factor. Therefore, we conclude that the trial court did not err in
denying the Defendant’s request for probation.

                               B. Community Corrections
       Next, the Defendant argues that the trial court erred by not granting him an alternative
sentence of community corrections. The Community Corrections Act was meant to provide an


                                                  -6-
alternative means of punishment for “selected, nonviolent felony offenders . . . , thereby reserving
secure confinement facilities for violent felony offenders.” Tenn. Code Ann. § 40-36-103(1); see
also State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). Pursuant to statute, persons who satisfy
all of the following minimum criteria are eligible for participation in a community corrections
program:

                (1) Persons who, without this option, would be incarcerated in a correctional
                institution;
                (2) Persons who are convicted of property-related, or drug/alcohol-related
                felony offenses or other felony offenses not involving crimes against the
                person as provided in title 39, chapter 13, parts 1-5;
                (3) Persons who are convicted of nonviolent felony offenses;
                (4) Persons who are convicted of felony offenses in which the use or
                possession of a weapon was not involved;
                (5) Persons who do not demonstrate a present or past pattern of behavior
                indicating violence; [and]
                (6) Persons who do not demonstrate a pattern of committing violent
                offenses[.]

Tenn. Code Ann. § 40-36-106(a). However, persons who are sentenced to incarceration or who are
on escape status at the time of consideration will not be eligible, even if they meet these criteria. See
id.

       Persons who do not otherwise satisfy the minimum criteria and who would usually be
considered unfit for probation due to histories of chronic alcohol abuse, drug abuse, or mental health
problems, but whose special needs are treatable and could be served best in the community may be
considered eligible for participation in a community corrections program. Id. § 40-36-106(c).

        Even though an offender meets the requirements for eligibility, he or she is not automatically
entitled to participation in a community corrections program. See State v. Ball, 973 S.W.2d 288,
294 (Tenn. Crim. App. 1998); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
Rather, the Act provides that the criteria shall be interpreted as minimum standards to guide a trial
court’s determination of whether that offender is eligible for community corrections. See Tenn.
Code Ann. § 40-36-106(d).

        The trial court denied the Defendant’s request for community corrections for the same
reasons that he denied probation: the Defendant’s lengthy criminal history and the fact that prior
sentences involving release in the community had not served to deter the Defendant’s criminal
activity. The trial court specifically noted that the Defendant’s alcohol and drug problems were
taken into account, as was his effort in obtaining gainful employment.

        On appeal, the Defendant argues that the trial court erred in denying him a community
corrections sentence because his crimes were non-violent “property crime[s.]” He also asserts that


                                                  -7-
he could receive drug and alcohol treatment in a community corrections program even though the
Defendant testified that he no longer used drugs or alcohol. The State responds that the trial court
did not err by relying on the Defendant’s extensive criminal record and the numerous failed attempts
with measures less restrictive than incarceration.

        We cannot conclude that the trial court erred by denying the Defendant an alternative
sentence of community corrections. Although the Defendant qualifies for sentencing under the
Community Corrections Act, the Act provides that the criteria shall be interpreted as minimum
standards to guide a trial court’s determination of whether that offender is eligible for community
corrections. See Tenn. Code Ann. § 40-36-106(d). Our sentencing scheme permits the trial court
to determine whether the Defendant, in light of all the circumstances, merits an alternative sentence
to incarceration. Given the Defendant’s lengthy criminal record and the Defendant’s continued
criminal behavior despite numerous prior suspended sentences, we conclude that the trial court was
within its discretion in ordering the Defendant to serve his sentence in confinement.

                                        Conclusion
       Based upon the foregoing reasoning and authorities, the judgments of the trial court are
affirmed.



                                                      _____________________________
                                                      DAVID H. WELLES, JUDGE




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