         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   March 12, 2002 Session

                  STATE OF TENNESSEE v. MARCUS M. ODEN

                Direct Appeal from the Circuit Court for Rutherford County
                            No. F-49577     Don R. Ash, Judge



                     No. M2001-01343-CCA-R3-CD - Filed April 24, 2002


The Rutherford County Grand Jury indicted the defendant for aggravated child abuse. Pursuant to
a negotiated plea agreement, the defendant pled guilty to aggravated assault as a Range II multiple
offender for an eight-year sentence, with the manner of service to be determined by the trial court.
Following a sentencing hearing, the trial court denied the defendant's request for alternative
sentencing and ordered him confined in the Tennessee Department of Correction. In this appeal, the
defendant contends he should have received alternative sentencing. After a thorough review of the
record, we affirm the judgment of the trial court.

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

JOE G. RILEY , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Gerald L. Melton, District Public Defender; and Jeffrey S. Henry, Assistant District Public Defender,
for the appellant, Marcus M. Oden.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

                                  FACTUAL BACKGROUND

       At the guilty plea acceptance hearing, the prosecutor recited the following underlying facts:

                              The facts in the case would have been that had
                       this gone to trial . . . the seven-week-old child . . .
                       suffered [from] apparently a broken arm, a broken
                       clavicle, and a fractured skull. However, this
                       indictment only deals with the broken arm as the other
                       two injuries occurred at a different time.

                       They did interview [the defendant] after the child was
                       taken to the hospital. At first he did not admit any
                       involvement in it but then later did give a statement to
                       the police where [he] said that he became frustrated
                       with the seven-week-old child’s crying and did pull
                       the left arm and did hear it snap.


                                    PRESENTENCE REPORT

        The presentence report reveals the defendant was 21 years of age with a special education
high school diploma and no prior criminal record. The defendant’s work history since graduating
only involved two terms of employment, each for less than a month. The defendant was the father
of the victim; the victim’s mother was an 18-year-old high school student. At the time of the injury
on May 18, 2000, the defendant was keeping the child alone while the mother was at school. The
seven-week-old victim weighed seven pounds. Medical reports indicated the victim had not only
a broken arm, but also a broken clavicle. A CT scan further revealed that the victim had sustained
a large skull fracture at some time prior to the current incident.

       The Department of Children’s Services (DCS) intervened upon being called to the emergency
room at the hospital. The defendant denied any knowledge of how the injury occurred.
Subsequently, the defendant confessed his involvement to a police officer. Defendant and the
mother executed a plan of action with DCS which disallowed defendant’s being alone with the
victim until the defendant completed parenting classes. The defendant only attended three of the
required eight parenting classes; thus, he failed to complete the program.


                           SENTENCING HEARING TESTIMONY

        Edna Oden, the defendant’s mother, testified that the defendant failed to complete parenting
classes because she was unable to transport him. She stated her employer assigned her mandatory
overtime; the defendant was without a driver’s license; and there was no method of public
transportation available to their residence. She further stated she was the sole means of support for
the unemployed defendant; the defendant was not a “mean person;” and she feared the defendant
“wouldn’t last in jail” because of his mental condition. She conceded the defendant initially told her
he dropped the victim.

        The defendant initially testified the incident occurred the first time he was left alone to care
for the victim; however, he later conceded this testimony was incorrect. He further stated that when

                                                  -2-
the victim would not cease crying, he shook the victim; when that had no effect, he broke the
victim’s arm. The defendant stated he was not a bad person and was sorry for hurting the victim.

        On cross-examination, the defendant conceded he had given several inconsistent and
inaccurate statements as to the cause of the victim’s injury. He acknowledged the victim also
suffered from a fractured skull, which occurred prior to the instant offense, but he was unaware how
this injury occurred. The defendant further conceded he knew it was wrong to break the victim’s
arm at the time of the offense; the victim cried after the incident; he realized he “had done something
serious” to the victim; he did nothing to help the victim after inflicting the injury; and when the
mother returned, she inquired what was wrong with the victim, to which he replied he “didn’t know.”

      The defendant then read his prior statements into the record, and he explained that his
answers were untruthful because he was “scared.” The trial court sua sponte, inquired:

       The Court:      You told them the way the accident happened was that you were
                       babysitting, the phone rang, you got up to reach for the phone, you
                       fell over and landed on the baby to break his arm. Did you tell them
                       that at the [g]uidance [c]enter?

       The Witness: Yes, sir.

       The Court:      You did?

       The Witness: Yes, sir.

       The Court:      Why – why would you tell them that?

       The Witness: I don’t know. I was just scared at the time.

       The Court:      I don’t understand. Why would you tell them that?

       The Witness: I was scared, and I just –

       The Court:      Well, I can under – understand being scared back in May when you
                       [were] arrested; but this is about two or three months ago, when
                       you’re at the [g]uidance [c]enter. You told them a different story than
                       the one you wrote out for the police.

       Smyrna Police Officer Jeff Peach testified he was dispatched to the emergency room on May
18, 2000, where he interviewed the defendant. The defendant denied any knowledge of the injury,
opining that “a kid in the neighborhood might have came over and hurt the child or something.”
When Officer Peach re-interviewed the defendant on May 25th, the defendant admitted that he


                                                 -3-
became frustrated and pulled on the victim’s arm, breaking it, when victim would not cease crying.

        The victim’s mother testified the defendant is fond of the victim. When asked if the
defendant was also responsible for the victim’s fractured clavicle, fractured skull, and the resulting
brain injury, she stated, “I can’t say.” However, when asked if she were responsible, she responded,
“No, I didn’t do it. I was at school at the time.”


                                   TRIAL COURT FINDINGS

        The trial court denied alternative sentencing, finding: the defendant had no prior record, had
provided little financial support for his child, had not adequately sought rehabilitation, and had been
unemployed even though he was able to work. The trial court further found that the circumstances
of the offense were reprehensible; the defendant “told a different story to everybody that’s walked
in the door;” and there was a need for deterrence.


                                          SENTENCING

        The defendant contends the trial court should have ordered split confinement or placement
in the community corrections program. We believe the determination of the trial court is supported
by the record.

A. Standard of Review

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. 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). Thus, a Range II offender
is not presumed to be a favorable candidate.

        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).

                                                 -4-
Additionally, a court should consider the 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);
State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

        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). In summary, 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. Analysis

        As stated, the defendant as a Range II offender does not enjoy a presumption of alternative
sentencing. See Tenn. Code Ann. § 40-35-102(6). The defendant correctly points out that he had
no prior convictions. However, he was free to enter a plea agreement as a Range II multiple
offender. See State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987). Furthermore, by agreeing to
plead guilty as a Range II multiple offender, the defendant waived his statutory presumption favoring
alternative sentencing. See State v. Homer L. Evans, No. E2000-00069-CCA-R3-CD, 2001 WL
274069, at *3-4 (Tenn. Crim. App. Mar. 20, 2001, at Knoxville). The defendant bears the burden
of establishing that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing
Commission Comments.

         The defendant contends the trial court failed to consider all applicable statutory factors in
determining whether he should receive alternative sentencing. Specifically, the defendant contends
the trial court failed to consider his potential for rehabilitation and social history. Additionally, he
contends the trial court misapplied the evidence in concluding the circumstances of the offense and
the need for deterrence favored denial of alternative sentencing.

                                            1. Deterrence

        The defendant argues the trial court improperly considered the need for deterrence in denying
alternative sentencing. The trial court, in evaluating whether it should deny alternative sentencing,
posed the issue of “whether or not there are [similar] incidents present in this community,” to which
the court concluded, “I think there are.”[107] The defendant correctly argues that the trial court’s
statement is insufficient to deny alternative sentencing based on the need for deterrence. See State
v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000). Accordingly, our review of the defendant’s sentence
will be de novo without a presumption of correctness. See Poole, 945 S.W.2d at 96.




                                                  -5-
                                  2. Potential for Rehabilitation

        The defendant contends the trial court failed to consider his potential or lack of potential for
rehabilitation. However, the record clearly establishes the defendant failed to complete parenting
classes while on pretrial release. Furthermore, on direct examination, the defendant testified he had
never been left with the victim alone prior to this incident, and on cross-examination, the defendant
conceded he, alone, had watched the victim on several prior occasions, and his earlier testimony
“wasn’t true.” The trial court may consider failed past efforts of rehabilitation. See Tenn. Code Ann.
§ 40-35-102(5). Additionally, a defendant’s lack of honesty at the sentencing hearing may be
considered in determining whether rehabilitation is likely. See State v. Nunley, 22 S.W.3d 282, 289
(Tenn. Crim. App.1999). It is apparent the trial court considered the defendant’s lack of potential
for rehabilitation.

                                3. The Defendant’s Social History

        The defendant contends the trial court failed to consider his social history. The trial court
indeed considered defendant’s “social record” and noted the positive influence of defendant’s
mother. However, the record also established that the defendant had a very poor work history and
remained unemployed for at least six months prior to the sentencing hearing. A defendant’s work
history is relevant to his or her chances for rehabilitation. State v. Kelley, 34 S.W.3d 471, 483
(Tenn. Crim App. 2000). The evidence supports the trial court’s conclusion that the defendant’s
social history disfavors imposition of alternative sentencing.

                                 4. Circumstances of the Offense

       The defendant contends the trial court inaccurately concluded that the circumstances of the
offense required the denial of alternative sentencing. The trial court may look behind a plea
agreement and consider the true nature of the offense committed. See State v. Hollingsworth, 647
S.W.2d 937, 939 (Tenn. 1983); State v. Biggs, 769 S.W.2d 506, 507 (Tenn. Crim. App. 1988).
Where an offense is shocking or reprehensible, this is certainly a relevant consideration in
determining whether alternative sentencing is appropriate. See State v. Hartley, 818 S.W.2d 370,
374-75 (Tenn. Crim. App. 1991) (holding alternative sentencing may be denied solely upon the
circumstances of the offense where it is especially violent, horrifying, shocking or reprehensible and
outweighs the favorable factors).

        The undisputed testimony established the seven-pound, seven-week-old victim suffered from
a fractured skull, which resulted in brain injury, and a broken clavicle, in addition to the broken arm.
The victim’s mother denied involvement in any of the injuries, and there was no evidence to the
contrary. The trial court found defendant’s offense was reprehensible and “obscene.” The evidence
supports this finding.

       The facts of this case clearly support commission of the Class A felony of aggravated child
abuse, an offense that would make the defendant ineligible for probation, see Tenn. Code Ann. §


                                                  -6-
40-35-303(a), and ineligible for community corrections, see Tenn. Code Ann. § 40-36-106. The
defendant was allowed to plead guilty to the Class C felony of aggravated assault, which made him
eligible for alternative sentencing consideration. The trial court had the opportunity to observe the
credibility and demeanor of the defendant and obviously was unimpressed. The defendant had failed
to complete parenting class, which was an opportunity for rehabilitation. Defendant had a poor work
history. Although the defendant had no prior criminal record, the trial court justifiably concluded
the defendant was unlikely to successfully complete any local rehabilitative programs.

        Under these circumstances, we are unable to conclude that the trial court erred in denying
alternative sentencing. We affirm the judgment of the trial court.




                                                      ___________________________________
                                                      JOE G. RILEY, JUDGE




                                                -7-
