         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs July 26, 2000

             STATE OF TENNESSEE v. GARY ANTHONY BURNS

                  Direct Appeal from the Circuit Court for Sullivan County
                            No. S41, 549   Phyllis Miller, Judge



                                No. E1999-02610-CCA-R3-CD
                                     December 20, 2000

The Defendant, Gary Anthony Burns, pleaded guilty to two counts of theft over $500.00. The trial
court sentenced the Defendant as a Range I standard offender to two years on each theft count and
ordered the sentences to be served concurrently. The trial court then suspended the two-year
sentence and ordered the Defendant to be placed on six years probation after service of ninety days
in the Sullivan County jail, day for day. The Defendant now appeals, arguing that the trial court
unlawfully denied him alternative sentencing. We conclude that the Defendant’s sentence is proper
and therefore affirm the judgment of the trial court.


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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JOHN EVERETT WILLIAMS, JJ., joined.

Richard A. Tate, Assistant Public Defender, for the appellant, Gary Anthony Burns.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Teresa Murray-Smith, Assistant District Attorney
General; for the appellee, State of Tennessee.

                                            OPINION

                                               Facts
        On September 15, 1999, the Defendant, Gary Anthony Burns, pleaded guilty without a
recommendation on sentencing to two counts of theft over $500. The Defendant admitted to
unlawfully cashing two checks belonging to his employer totaling $1,768.91 while he was an
employee of Photo Express in Bristol, Tennessee. The Defendant and his former manager at Photo
Express both testified that the Defendant repaid an amount totaling $1,600.00 after discovery of the
crimes.
        On November 4, 1999, the Criminal Court for Sullivan County conducted a sentencing
hearing. In making its sentencing determination, the trial court considered as enhancement factors
the Defendant’s previous criminal history, the fact that the Defendant committed the crime while on
bail for a prior felony conviction, and the abuse of a position of private trust involved in the crime.
See Tenn. Code Ann. § 40-35-114(1), (13)(A), (15). The trial court found the absence of bodily
injury to be a mitigating factor, but granted it only slight weight, reasoning that mitigating factor (1)
always applies in theft cases. See id. § 40-35-113(1). Accordingly, the trial court sentenced the
Defendant to two-years incarceration, but suspended the two-year sentence, concluding that the
Defendant was entitled to a presumption of alternative sentencing. However, the court also
concluded that some confinement was necessary. Therefore, the court ordered the Defendant to
serve ninety consecutive days in jail followed by six years probation.

                                              Analysis
        The Defendant argues that the trial court erred by denying him an alternative sentence. In
support of his argument, he contends that because he paid Photo Express $1,600 after charges were
filed against him, mitigating factor (5) should have been applied in his case.

        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
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. State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992). However, the sentence must be adequately supported


                                                  -2-
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.

        The Defendant in this case argues that he should have been granted some form of alternative
sentencing. However, the trial court did in fact impose one of the alternative sentencing options
delineated in Tennessee Code Annotated § 40-35-104. Among the possible sentencing alternatives
specified by our legislature are (1) “[p]ayment of restitution to the victim or victims either alone or
in addition to any other sentence authorized by” Tennessee Code Annotated § 40-35-104(c); (2) “[a]
sentence of confinement which is suspended upon a term of probation supervision which may
include community service or restitution, or both”; and (3) “[a] sentence of periodic confinement
which may be served in a local jail or workhouse in conjunction with a term of probation.” Tenn.
Code Ann. § 40-35-104(c)(2), (3), (4); see also State v. Dowdy, 894 S.W.2d 301, 304 (Tenn. Crim.
App. 1994) (stating that split confinement is one of the alternative sentencing options under
Tennessee Code Annotated § 40-35-104). In this case, the Defendant’s two-year sentence was
suspended, he received split-confinement probation, and he was ordered to pay restitution to the
victim of his crime.

       However, in his brief, the Defendant also argues that “the Trial Court should have granted
probation or intensive probation to the defendant without confinement in the Sullivan County Jail.”
We will therefore consider whether the Defendant should have been granted full probation.

       With certain exceptions, a defendant is eligible for probation if the sentence 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.” Id. § 40-35-303(b) sentencing comm’n cmts. In determining
whether to grant or deny probation, the trial court must consider the nature and circumstances of the


                                                  -3-
offense; the defendant’s criminal record, background, and social history; the defendant’s present
condition; 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. Goode, 956 S.W.2d 521, 527 (Tenn.
1997). “The defendant’s lack of credibility is also an appropriate consideration and reflects on a
defendant’s potential for rehabilitation.” Id. The Defendant has the burden of establishing suitability
for total probation. Id.; Tenn. Code Ann. § 40-35-303(b).

        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 deterrence 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 . . . .

Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated § 40-35-103(5), Dowdy, 894 S.W.2d at
305, which states, in pertinent part, “The potential or lack of potential for the rehabilitation or
treatment of a defendant should be considered in determining the sentence alternative or length of
a term to be imposed.” Tenn. Code Ann. § 40-35-103(5).

        At the conclusion of the sentencing hearing in this case, the trial judge found that the
Defendant’s sentence was “necessary to avoid depreciating the seriousness of the offense or
particularly suited to provide an effective deterrence” and that the Defendant, between 1994 and
1998, had a “criminal history demonstrating a clear disregard for the morals and the laws of society.”
The trial judge then addressed the Defendant, stating,
        I find that you’ve not been totally honest, truthful here today. I find that you have
        very little potential for rehabilitation in spite of what sort of therapy you’ve gone
        through. I find that you don’t truly accept responsibility for what you did . . . . So,
        full probation will be denied . . . . I find that some confinement is necessary,
        especially considering your testimony here today.

        We conclude that the Defendant has failed to demonstrate that he was entitled to full
probation. The trial court found that the Defendant was untruthful. The trial court also considered
the Defendant’s criminal history and concluded that the Defendant had very little potential for
rehabilitation without some period of confinement being a part of the sentence imposed. As this
Court has stated,
        It is unrealistic to assume that someone who has just pled guilty to a felony
        conviction, who then offers perjured testimony to the court, denies any criminal
        wrongdoing for the offense for which they have just pled, and is in general


                                                 -4-
       unrepentant is someone who could immediately return to their community and be
       expected to assume a role as a functioning, productive and responsible member of
       society.

Dowdy, 894 S.W.2d at 305. We thus conclude that the trial court did not abuse its discretion in
denying the Defendant full probation.

        The trial court weighed all appropriate factors under the statutory guidelines. Mitigating
factor (5) is not applicable in the instant case because the restitution paid to Photo Express before
the sentencing hearing was not paid before detection of the crime and therefore should not have been
considered by the court. See Tenn. Code Ann. § 40-35-113(5). Moreover, we note that the
application of enhancement and mitigating factors was primarily utilized by the trial court to
determine the length of the Defendant’s sentence, which the Defendant has not challenged on appeal.

       Accordingly, the ruling of the trial court is AFFIRMED.



                                                      ___________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




                                                -5-
