         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 21, 2002

             STATE OF TENNESSEE v. JAMES ANTHONY CLINE

                  Direct Appeal from the Circuit Court for Blount County
                  Nos. C-12958 and C-13102    D. Kelly Thomas, Jr., Judge



                                  No. E2001-02011-CCA-R3-CD
                                         August 6, 2002

The appellant, James Anthony Cline, pled guilty to one count of theft of property and received a
probationary sentence. Prior to the entry of the judgment of conviction, the appellant committed
another theft offense. Additionally, during the appellant’s probationary sentence, the appellant was
convicted of several other offenses, including four forgery offenses. As a result of the appellant’s
continued criminal conduct, the trial court revoked the appellant’s probation. On appeal, the
appellant raises the following issues for our review: (1) whether the trial court abused its discretion
in finding that the appellant violated the conditions of his probation; and (2) whether the trial court
erred in denying alternative sentencing. Upon a review of the record and the parties’ briefs, we
affirm the judgments of the trial court and remand for correction of the judgments on the four forgery
offenses.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
JOHN EVERETT WILLIAMS, JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee, for
the appellant, James Anthony Cline.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Mike Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                    I. Factual Background
                  In October 2000, the appellant was caught removing a computer from Wal-Mart
and was subsequently indicted by the Blount County Grand Jury on one count of theft of property
in violation of Tenn. Code Ann. § 39-14-103 (1997). The appellant pled guilty to theft over $500,
a Class E felony, and was sentenced to incarceration for one year in the Tennessee Department of
Correction. The sentence was suspended, and the appellant was placed on supervised probation.
The guilty plea was signed by appellant and the trial court on February 20, 2001, and, likewise, the
judgment reflects an appearance before the trial court by the State, the appellant, and the appellant’s
counsel on February 20, 2001. Moreover, on February 20, 2001, a supplemental probation order was
entered setting forth the conditions and guidelines of appellant’s probation. However, the judgment
of conviction reflects that it was signed by the trial court and entered on February 22, 2001.

               On March 28, 2001, the appellant was arrested on a charge of forgery which allegedly
occurred on February 21, 2001. The appellant pled guilty on April 20, 2001, to the lesser offense
of theft and was sentenced to eleven months and twenty-nine days incarceration. Furthermore, on
June 11, 2001, the appellant pled guilty to four counts of forgery and received four concurrent
sentences of incarceration for one year in the Department of Correction, with the manner of service
to be determined by the trial court. The forgery offenses occurred in December 2000 in Blount
County. Additionally, on July 3, 2001, the appellant was arrested in Cumberland County on charges
of burglary.

                  Subsequently, a violation of probation warrant was issued on July 9, 2001, alleging
that, as a result of appellant’s arrests on March 28, 2001, and July 3, 2001, the appellant had violated
the terms of his probation for the February 2001 theft conviction. The trial court held a hearing on
August 14, 2001, to determine if the appellant had violated the terms of his probation, and also to
determine the manner of service of the June 2001 forgery convictions.

                At the evidentiary hearing, the appellant claimed that he stole the computer from Wal-
Mart “basically to prove a point to some kids that it’s not going to pay.” He admitted that, while the
theft charge was pending, he was involved in the forgery of four stolen checks, although he
maintained that he was directly involved in only three of the forgeries. He and two other individuals
found a book of checks at a gas station and “went into a little shopping spree.” The appellant also
admitted that, at the time of the hearing, he had charges pending against him in Cumberland County.

                Following the hearing, the trial court revoked the appellant’s probation on the basis
of the offense committed by appellant on February 21, 2001. The trial court also denied alternative
sentencing for the June 2001 forgery convictions. The appellant timely filed a notice of appeal
alleging that the trial court erred by revoking his probation for his February 2001 theft conviction,
and also erred by denying appellant an alternative sentence for the four forgery convictions.

                 Although the appellant admits that the trial court has the authority to revoke probation
if a defendant commits a crime after entry of the judgment granting probation, the appellant
maintains that, because the second theft offense was committed the day before entry of the judgment
for the first theft offense, the trial court could not properly revoke his probation.

                                           II. Analysis
                                      A. Probation Revocation


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                A trial court may revoke a defendant’s probation when it finds that the probationer
has violated the conditions of probation. See Tenn. Code Ann. § 40-35-310 (1997). In determining
whether or not to order revocation, the trial court need not find beyond a reasonable doubt that a
violation of the conditions of probation has occurred. The existence of a violation need only be
supported by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1997). On appeal,
the record must demonstrate that the trial judge has not acted arbitrarily and has exercised
conscientious judgment. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Gregory, 946
S.W.2d 829, 832 (Tenn. Crim. App. 1997). In other words, this court will not reverse the judgment
of the trial court absent an abuse of discretion, reflected in the record by an absence of substantial
evidence to support the trial judge’s findings. Harkins, 811 S.W.2d at 82.

                The appellant argues that, because the basis of the revocation was a crime committed
one day prior to the entry of the judgment on the February theft conviction, the trial court erred. He
essentially argues that he is entitled to a “grace period in which his activity, no matter how heinous,
would not affect his probationary release into society.” State v. Malone, 928 S.W.2d 41, 45 (Tenn.
Crim. App. 1995). The appellant cites this court’s opinions in Malone, supra; State v. Smith, 909
S.W.2d 471 (Tenn. Crim. App. 1995); and State v. Stone, 880 S.W.2d 746 (Tenn. Crim. App. 1994),
to support his argument. We must respectfully disagree.

                 This court has previously recognized that a defendant who has been granted probation
has “a liberty interest that is protected by due process of law,” and must have reasonable notice of
the conduct that is prohibited. State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997)
(citing Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974)). We have also concluded that
a trial court will usually be unable to revoke a defendant’s probation for offenses based on violation
of the conditions of probation if those violations occurred before the conditions were set.
Stubblefield, 953 S.W.2d at 225. As we noted in Stubblefield,
                 revoking probation based upon criminal acts a defendant committed
                 before being placed on probation does not implicate these due process
                 concerns because, unlike other conditions of probation that may be
                 imposed, the defendant is deemed to have notice that his or her
                 conduct must conform to the requirements of the law from the time
                 of the law’s enactment.
Id. Moreover, this court has stated that if a defendant engages in criminal conduct after arrest and
such conduct is not disclosed to the trial court at the time of the grant of probation, such conduct may
be considered for the purpose of revoking defendant’s probation. State v. Williams, 52 S.W.3d 109,
122 (Tenn. Crim. App. 2001).

                In the instant case, the appellant testified at the evidentiary hearing. He conceded
that, subsequent to the grant of probation, he pled guilty for the offense which occurred on February
21, 2001. As noted, the appellant also admitted that, since being placed on probation, he had pled
guilty to four forgery offenses and also had charges pending in Cumberland County at the time of
the revocation hearing. Notably, in its ruling, the trial court stated that, although the proof from the
record is unclear as to whether the appellant was granted probation on February 20, 2001, or


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February 22, 2001, at the time appellant was granted probation the trial court was unaware of the
offense committed on February 21, 2001.1 Regardless, the record clearly supports the trial court’s
revocation of appellant’s probation.

                                     B. Alternative Sentencing
                The appellant also argues that the trial court should have granted him alternative
sentencing for the four forgery convictions. When an appellant challenges the length, range, or
manner of service of a sentence, this court conducts a de novo review of the record with a
presumption that the determinations of the sentencing court were correct. See Tenn. Code Ann. §
§ 40-35-401(d) (1997). “However, 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). In conducting a de novo review, this court must consider (a) all the
evidence at trial and the sentencing hearing; (b) the presentence report; (c) the sentencing principles;
(d) the arguments of counsel; (e) the nature and characteristics of the offenses; (f) any statutory
mititgating and enhancing factors; (g) any statement that the defendant made on his own behalf; and
(h) the defendant’s potential for rehabilitation. See Tenn. Code Ann. § § 40-35-102 and -103 (1997),
and -210(b) (Supp. 2001). The burden of showing that a sentence was improper is upon the
appealing party. See Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments.

                 Tenn. Code Ann. § 40-35-102(5) recognizes that “state prison capacities and the
funds to build and maintain them are limited,” and provides that only “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.” A defendant who does not fall within this class of
offenders 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). Furthermore, “[t]he trial court must
presume that a defendant sentenced to eight years or less and not an offender for whom incarceration
is a priority is subject to alternative sentencing and that a sentence other than incarceration would
result in successful rehabilitation.” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993)
(citation omitted); see also Tenn. Code Ann. § 40-35-303(a) (Supp. 2001). However, “[i]f the court
is presented with evidence sufficient to overcome the presumption, then it may sentence the
defendant to confinement according to the statutory provision.” Ashby, 823 S.W.2d at 169.
Evidence sufficient to overcome the presumption includes evidence showing that:
                 (A) [c]onfinement is necessary to protect society by restraining a
                 defendant who has a long history of criminal conduct;
                  (B) [c]onfinement 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


         1
          The record reflects that both the plea agreement which was signed by appellant and the supplemental probation
order are dated February 20, 2001.

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             (C) [m]easures less restrictive than confinement have frequently or
             recently been applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103(1)(A)-(C).

               The presumption in favor of alternative sentencing may be overcome by facts
contained in the presentence report, evidence presented by the State, the testimony of the accused
or a defense witness, or any other source, provided it is made a part of the record. See State v.
Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). Additionally, a court should consider the
defendant’s potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. See Tenn. Code Ann. § 40-35-103(5). A court may also apply the
mitigating and enhancement factors set forth in Tenn. Code Ann. § § 40-35-113 and -114 (1997) as
they are relevant to the sentencing considerations set forth in Tenn. Code Ann. § 40-35-103. See
Tenn. Code Ann. § 40-35-210(b)(5).

                We conclude that the trial court properly denied alternative sentencing. Measures less
restrictive than confinement had recently been granted the appellant and had obviously been
unsuccessful. Again, either one day before or one day after the granting of probation, the appellant
committed another criminal act. He subsequently pled guilty to four counts of forgery and had
additional charges pending. Moreover, at the sentencing hearing, the appellant refused to accept
responsibility for his actions, providing the court with numerous excuses for his conduct. In denying
alternative sentencing, the trial court correctly recognized that the appellant is presumed to be a
favorable candidate for alternative sentencing. However, the trial court correctly concluded that the
presumption had been successfully rebutted. Specifically, the trial court noted:
                [H]e is not a candidate– a proper candidate for an alternative sentence
                in the forgery cases, although he’s presumed to be so. The reason
                being is his criminal history, just— trying to walk out of Walmart
                with a computer in October, and then stealing and forging checks in
                December, and then being involved in another theft or forgery in
                February. I mean, that’s– and these aren’t things that were driven by
                an addiction or anything else. These were just things that he decided
                to do for whatever bizarre reasons.

               And Mr. Cline doesn’t— is not open and truthful on the witness
               stand. He qualifies all his answers. He doesn’t accept responsibility
               for these offenses. He always tries to minimize his involvement
               every time he says something about it. You know, it’s — the
               likelihood of rehabilitation is just extremely poor, given the
               circumstances.
Accordingly, the trial court properly denied the appellant’s request for alternative sentencing.

                Tangentially, we note that, in our review of the record, the judgments of conviction
for the appellant’s four forgery convictions contain error. All four judgments, which were entered



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on August 28, 2001, indicate that the underlying offenses occurred in December 2001. However,
the indictments on these charges clearly reflect that the forgery offenses occurred in December 2000.

                                         III. Conclusion
               Accordingly, this matter is remanded to the trial court for correction of the judgments
on the June 2001 forgery convictions from an offense date of December 2001 to an offense date of
December 2000. The judgments of the trial court are affirmed in all other respects.




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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