         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 11, 2001

             STATE OF TENNESSEE v. TIMOTHY C. JEWELL, JR.

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 98-13528    Arthur T. Bennett, Judge



                     No. W2000-00998-CCA-R3-CD - Filed May 15, 2001


The Defendant pleaded guilty to one count of aggravated burglary, a Class C felony, and two counts
of theft over one thousand dollars, Class D felonies. The trial court sentenced the Defendant to an
effective sentence of three years incarceration in the local workhouse. The Defendant now appeals,
arguing that the trial court erred in denying him alternative sentencing. Finding no error, we affirm
the judgment of the trial court.


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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Marvin E. Ballin, Memphis, Tennessee, for the Appellant, Timothy C. Jewell, Jr.

Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney, Assistant Attorney General,
William L. Gibbons, District Attorney General, and David Pritchard, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

        The Defendant, Timothy C. Jewell, Jr., pleaded guilty to one count of aggravated burglary,
a Class C felony, and two counts of theft over one thousand dollars, Class D felonies. The trial court
sentenced the Defendant to three years incarceration for the aggravated burglary conviction and to
two years incarceration for each of the theft convictions to be served concurrently, for an effective
sentence of three years in the local workhouse. The Defendant now appeals, arguing that the trial
court erred in denying him alternative sentencing.
                                              FACTS

        On April 29, 1998, officers responded to a complaint of burglary and theft at a Shelby County
residence owned by Lawrence Guidi. During the investigation, the Defendant confessed to entering
the residence, along with co-defendants Eric Eli and Michael Walker, and to taking several weapons
without the owner’s consent. The Defendant admitted that after the burglary, he hid the guns in his
house and then tossed them out on the side of the road when he discovered that the police were
investigating him. The Defendant later helped police recover the guns, which were ultimately
returned to the owner. After the burglary, the Defendant moved in with Guidi and helped repay
some of the loss.

        At the sentencing hearing, the Defendant admitted to an extensive juvenile record, including
numerous instances where he was given opportunities to turn his life around and yet continued his
criminal behavior. However, the Defendant testified that he no longer associated with the group of
people that he alleges were influential in his previous criminal conduct. The Defendant also testified
that he was living with his mother and that he had maintained a steady job for the past year. The
Defendant was employed at Cordova Floors and worked approximately sixty or seventy hours per
week. The Defendant also testified that he helped his mother financially while he was living with
her. The Defendant testified that he had obtained his GED and was hoping to attend college in the
future.

                                            ANALYSIS

       The Defendant argues that the trial court erred in not granting him some form of alternative
sentencing. Specifically, the Defendant argues that the trial court placed too much weight on the
Defendant’s prior criminal record and that the trial court failed to adequately articulate why the
Defendant should be denied alternative sentencing. We respectfully disagree.

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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). In the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
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 involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any


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statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d
at 123. However, the sentence must be adequately supported by the record and comply with the
purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237
(Tenn. 1986).

        When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence "even if we would have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

         With certain exceptions, a defendant is eligible for probation if the sentence actually imposed
is eight years or less. Tenn. Code Ann. § 40-35-303(a). “Although probation ‘must be automatically
considered as a sentencing option for eligible defendants, the defendant is not automatically entitled
to probation as a matter of law.’” State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn.
Code Ann. § 40-35-303(b) sentencing comm’n cmts). In determining whether to grant or deny
probation, the trial court may consider the circumstances of the offense; the defendant’s criminal
record, background and social history; the defendant’s physical and mental health; the deterrent
effect on other criminal activity; and the likelihood that probation is in the best interests of both the
public and the defendant. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The
defendant has the burden of establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b);
Ashby, 823 S.W.2d at 169. An especially mitigated or standard offender convicted of a Class C,



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D or E felony who does not fit within certain parameters1 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).

        However, we further note that even if a defendant is presumed to be a favorable candidate
for alternative sentencing under Tennessee Code Annotated § 40-35-102(6), the statutory
presumption of an alternative sentence may be overcome if
                (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 deterrent to
        others likely to commit similar offenses; or
                (C) [m]easures less restrictive than confinement have frequently or recently
        been applied unsuccessfully to the defendant . . . .
Id. § 40-35-103(1)(A)-(C).

         In this case, although the Defendant was presumptively entitled to probation because his
sentence was less than eight years, see Tenn. Code Ann. § 40-35-102(6), -303(a), the State
adequately rebutted that presumption. The Defendant had an extensive history of criminal behavior
when he was a juvenile. The pre-sentence report indicated that he had eleven charges ranging from
truancy to assault and aggravated burglary between May 1993 and June 1997. In addition, less
restrictive measures than confinement had previously been applied unsuccessfully to the Defendant.
The Defendant was placed in Boys Town and Hanover House after the drug, theft and aggravated
burglary offenses for purposes of rehabilitation; however, within three months, the Defendant
committed an assault. The trial court stated, and we agree, that “this Defendant has . . . had plenty
of opportunities to turn himself around,” yet he never did so.

        The Defendant argues that the trial court placed too much emphasis on the nature and
circumstances of the offense in making its sentencing determination. We disagree. The Defendant
broke into the home of someone who knew and trusted him and stole a number of weapons. The
Defendant then tried to hide the evidence when he became aware that he was being investigated.
The trial court stated that some confinement was necessary “to protect society from this type of
activity where this defendant has this long record of criminal offenses, even though their [sic]
juveniles.” The trial court also stated that confinement was necessary “to let the juveniles know that
you don’t get the same juvenile punishment when you come to adult court to deter them from
reaching this point in their criminal lives when they come up here.” In conjunction with his
discussion of deterrence, the trial court also mentioned the involvement of “some codefendants here,
Walker and Ely, that was in on this too.”



         1
            Tennessee Code Annotated § 40-35-102(5) states that “[c]onvicted felons committing the most severe offenses,
possessing criminal histories evincing a clear disregard for the laws and m orals of society, and evincing failure of past
efforts at rehab ilitation shall be give n first priority regar ding sentenc ing involving inc arceration . . . .”

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        Our Supreme Court has recently addressed the issue of deterrence in State v. Hooper, 29
S.W.3d 1 (Tenn. 2000). In Hooper, our supreme court held that a trial court’s decision to incarcerate
a defendant based on the need for deterrence will be presumed correct “so long as any reasonable
person looking at the entire record could conclude that (1) a need to deter similar crimes is present
in the particular community, jurisdiction, or in the state as a whole, and (2) incarceration of the
defendant may rationally serve as a deterrent to others similarly situated and likely to commit similar
crimes.” Id. at 10.

         Hooper sets out certain factors to be considered by trial courts when deciding whether a need
for deterrence is present and whether incarceration is “particularly suited” to achieve that goal. See
id. at 10-12. In this case, the defendant’s crime was the result of intentional or knowing behavior.
The crime also involved co-defendants, from which the trial court could logically infer that the
defendant was a member of a criminal enterprise or substantially encouraged or assisted others in
achieving the criminal objective. These two Hooper factors support the trial court’s application of
deterrence as a reason to incarcerate the Defendant in this case. See id. at 11-12. Moreover, there
is ample evidence in the record to support the trial court’s sentence of incarceration based on the
Defendant’s long history of juvenile crime and the frequent and recent failures of measures less
restrictive than confinement that have been applied to the Defendant.

        We conclude that the Defendant’s prior criminal behavior, in combination with the continued
failure of other less restrictive measures than confinement and the deterrence factor analyzed above,
warranted the sentence of incarceration in this case. We also conclude that the trial court properly
denied judicial diversion in this case. It is well settled that “[t]he same guidelines are applicable in
diversion cases as are applicable in probation case, but they are more stringently applied to diversion
applicants.” State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983). There is substantial
evidence to support the trial court’s decision to deny judicial diversion, and thus we find no abuse
of discretion by the trial court in doing so.

       Accordingly, the judgment of the trial court is AFFIRMED.



                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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