            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                          FEBRUARY 1998 SESSION
                                                      FILED
                                                         April 1, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )    C.C.A. NO. 02C01-9703-CR-00090
             Appellee,            )
                                  )    SHELBY COUNTY
VS.                               )
                                  )    HON. ARTHUR T. BENNETT,
BERRY BOWLS,                      )    JUDGE
                                  )
             Appellant.           )    (Sentencing)



FOR THE APPELLANT:                     FOR THE APPELLEE:


A.C. WHARTON                           JOHN KNOX WALKUP
Public Defender                        Attorney General & Reporter

EDWARD G. THOMPSON                     KENNETH RUCKER
Asst. Public Defender                  Asst. Attorney General
201 Poplar, Suite 201                  425 Fifth Ave. North
Memphis, TN 38103                      Nashville, TN 37243-0493
   (On Appeal)
                                       JOHN W. PIEROTTI
TERESA JONES                           District Attorney General
Asst. Public Defender
  (At the Hearing)                     PERRY HAYES
                                       Asst. District Attorney General
                                       201 Poplar, Suite 301
                                       Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                       OPINION



              The defendant was indicted on February 15, 1996, for the aggravated

assault of his girlfriend, Jerlean Irvin. On August 26, 1996, he pled guilty to simple

assault and agreed to a sentence of eleven months, twenty-nine days. He also agreed

to pay a fifty dollar ($50) fine. Following a sentencing hearing, the trial court ordered the

defendant to serve his sentence in the Shelby County Correction Center. The defendant

now appeals and argues that the trial court erred by not suspending his sentence.



              After a review of the record and applicable law, we find that the trial court

did not err in denying the defendant’s request for probation. The judgment of the court

below is affirmed.



               The defendant’s conviction stemmed from a violent argument he had with

the victim. The defendant and the victim had consumed two bottles of wine when their

argument began. Ultimately, the defendant hit the victim with a milk crate and the victim

fell to the floor, suffering bruises and a broken arm.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “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).




                                             2
               T.C.A. § 40-35-103 sets out sentencing considerations which are guidelines

for determining whether or not a defendant should be incarcerated. These include the

need “to protect society by restraining a defendant who has a long history of criminal

conduct,” the need “to avoid depreciating the seriousness of the offense,” the

determination that “confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses,” or the determination that “measures less

restrictive than confinement have frequently or recently been applied unsuccessfully to

the defendant.” T.C.A. § 40-35-103(1).



               In determining the specific sentence and the possible combination of

sentencing alternatives, the court shall consider the following: (1) any evidence from the

trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing

and the arguments concerning sentencing alternatives, (4) the nature and characteristics

of the offense, (5) information offered by the State or the defendant concerning

enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the

defendant’s statements in his or her own behalf concerning sentencing. T.C.A.

§ 40-35-210(b).



              Unlike the felon, the misdemeant is not entitled to the presumption of a

minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

When determining the percentage of the sentence to be served in actual confinement, the

trial court must comply with the purposes and principles of the Criminal Sentencing

Reform Act of 1989. T.C.A. § 40-35-302(d).



              While a sentencing hearing is not mandatory for misdemeanor sentencing,

one was held in this case. At the hearing, the defendant testified that he and his girlfriend



                                             3
began to argue after they had shared two bottles of wine. He said that he pushed her first

and the argument culminated with his hitting the victim with a milk crate. She fell to the

floor and suffered bruises and a broken arm. The defendant testified that his violent

behavior must have been a result of his mixing alcohol with his medication, Dilantin. He

told the court that he was a good person and that he would not behave in that manner

ever again. He stated that he had “straightened [his behavior] out.” He further testified

that he continues to date the victim and that she has forgiven him. However, he also said

that he continues to consume alcohol, mainly on the weekends.



              The defendant testified that he is employed through a friend of his that

performs contracting work. He said he has been working for his friend “off and on” for six

or seven years. He also testified that he had been convicted of grand larceny in 1970

even though his presentence report reflected no previous convictions. No other witnesses

testified.



              The defendant complains that the court should not have denied his request

for probation. In determining whether the defendant should be granted probation, the

court must consider the defendant’s criminal record, social history, present physical and

mental condition, the circumstances of the offenses, the deterrent effect upon the criminal

activity of the accused as well as others, and the defendant’s potential for rehabilitation

or treatment. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993).



              In this case, the trial judge denied probation on the basis of the serious

nature of the victim’s injury and the fact that the assault was unprovoked. He also noted

that the defendant’s abuse of alcohol prohibited him from being a good candidate for

incarceration only on the weekends. The judge opined that neither society nor the



                                            4
defendant would benefit from an award of probation for the defendant. He further noted

that the defendant had missed three court dates1 which indicated that the defendant would

likely be unable to comply with the requirements of probation.



               The evidence presented in the presentence report fully supports the trial

court’s findings. Furthermore, these findings clearly support the trial court’s conclusion

that probation is not proper for this defendant at this time. However, we note that the

defendant may again petition the trial court for probation after a period of no less than two

months. T.C.A. § 40-35-314(c). The judgment of the trial court is therefore affirmed.




                                                       __________________________________
                                                       JOHN H. PEAY, Judge



CONCUR:



_______________________________
JOSEPH B. JONES, Judge



_______________________________
THOMAS T. WOODALL, Judge




        1
       At the sentencing hearing, Bowls admitted that he missed a general sessions court date on
September 5, 1995, his arraignment hearing on April 1, 1996, and his trial court date on August 21,
1996.

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