        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE           FILED
                       JANUARY SESSION, 1998         March 17, 1998

                                                 Cecil W. Crowson
STATE OF TENNESSEE,         )                  Appellate Court Clerk
                                C.C.A. NO. 01C01-9701-CR-00012
                            )
      Appellee,             )
                            )
                            )   DAVIDSON COUNTY
VS.                         )
                            )   HON. J. RANDALL WYATT, JR.
FRANKLIN W. CAMPBELL,       )   JUDGE
                            )
      Appe llant.           )   (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

DEANNA BELL JOHNSON             JOHN KNOX WALKUP
211 T hird Aven ue No rth       Attorney General and Reporter
Nashville, TN 37201
                                GEORGIA BLYTHE FELNER
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                VICTOR S. JOHNSON
                                District Attorney General

                                STEVE DOZIER
                                Assistant District Attorney General
                                Washington Square, Suite 500
                                222 Se cond A venue N orth
                                Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED AS MODIFIED

DAVID H. WELLES, JUDGE
                                OPINION

      The Defendant, Franklin W. Campbell, appeals as of right p ursua nt to R ule

3 of the Tennessee Rules of Appellate Procedure. He pleaded guilty to one

coun t of sim ple robbery and was se ntence d as a sta ndard, R ange I o ffender to

six years of incarceration.   The trial cou rt denied probatio n and c omm unity

corrections. The Defendant now appeals his sentence and argues that the trial

court erred by sentencing him to the maximum sentence and for denying him an

alternative to incarceration. We affirm the judgment of the trial court ordering the

Defendant to serve his sentence in confinement but m odify the length of the

sentence to five years.



      In Septem ber of 19 95, the D efenda nt beca me ac quainte d with Christina

Marie Gribbin, who he knew was a prostitute. The Defendant allowed Gribbin to

stay at his apartment with him. The Defendant is a transsexual and dresses as

a woma n. Gribb in aske d the D efend ant on occa sions to acc omp any he r while

she worked, and he had sat in the car while she went inside a man’s house on

at least one occasion. On September 18, 1995, Gribbin asked the Defe ndant to

ride in her car with her while she went to get some money. The Defendant

denied that he knew that she intended to co mmit a rob bery.



      The Defendant was drinking alcohol and using Valium that day. He rode

with Gribbin to an ATM in Madison, Tennessee. Patricia Cam pbell, th e victim in

this case, withdrew cash from the machine and then drove four miles to the

Chestnut Villa Ap artme nts on Due W est Av enue . Gribb in and the Defendant first



                                        -2-
observed the victim at the ATM, then followed her to the apartment complex. The

victim’s three grandchildren, ages four, five, and six, we re with he r. Gribbin got

out of her vehicle, went to the victim as she exited her car, and held a knife to her

throat. Gribbin said: “Give me your purse or I will kill you.” The Defendant was

yelling from Gribbin’s car, “Hurry up!” Gribbin grabbed the victim’s purse and fled

in her vehic le, a mar oon Fo rd Esco rt. The v ictim st ated th at the p asse nger in the

vehicle was a white female.



       The police were ca lled and a des cription of the robbe rs was broadca st.

Shortly thereafter, Gribbin and the Defendant were apprehended in a maroon

Escort at Ga llatin Ro ad an d Stra tford A venue . The o fficers fo und th e victim ’s

purse sitting on the Defendant’s lap, and found the knife used in the robbery and

the victim’s ATM card under the driver’s seat. The victim identified Gribbin and

the De fendan t as the pe rsons w ho had robbed her.



       Gribb in and the Defendant were charged with aggravated robbery, and the

Defendant plead ed gu ilty to sim ple robbery. See Tenn. Code Ann. § 39-13-402;

Tenn. Code Ann. § 39-13-40 1. The trial judge se ntenced him to six years

imprison ment. After conducting a hearing on August 1, 1996, the trial judge

denied the Defendant’s request to s erve h is sent ence on pro bation or in

comm unity corrections. The D efenda nt now a ppeals , contend ing that the length

of his sen tence is exce ssive a nd tha t the trial c ourt erred by denying probation




                                           -3-
or com mun ity corrections. Although these issues may be somewhat moot, we

nonetheless consider them on the merits.1



        When an accused challenges the length, range, or the manner of service

of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial cou rt are corre ct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W.2d

166, 16 9 (Ten n. 1991 ).



        In conducting a de novo review of a sentence, this court must consider: (a)

the eviden ce, if an y, rece ived at th e trial and the sentencing hearing; (b) the

presentence report; (c) the principles o f sentenc ing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement

that the defen dant made on his own behalf; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



        If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and


1
 We note that the Defendant received pre-sentence jail credit and was incarcerated during the
initial pendency of this appeal. According to Department of Correction records the Defendant was
paroled on October 24, 1997. The Department’s records further reflect that a parole violation
warrant was issued on November 10, 1997, and was served on the Defendant on February 20,
1998.

                                                -4-
that the trial court's findings of fact are adequately supported by the record, then

we may not m odify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



      W e believe the record is clear that the trial court failed to properly consider

the statutory se ntencing principles and state them on the record. In imposing the

sentence, the trial court referred to the fact that the Defendant had prior

convictions, but did not further e laborate his sente ncing de cision oth er than to

state that to even “think about” putting the Defedant on proba tion wa s “abs olutely

ridiculous .” Therefore, we must we conduct a de novo review of the D efend ant’s

sentence. The presentence report reflects that the Defend ant was thirty-five at

the time of sentencing, divorced, with an eight-year-old daughter. He had not

held steady employment for the past five years, but had worked as a female

impersonator on a spora dic basis. He was currently a transsexual and was

taking female hormones . He stated that he had a prescription drug addiction

that began when he was a teenager.             He had used Valium, pain pills, and

alcoho l, and bing ed on c ocaine every cou ple of mo nths. He stated that he has

had drug a nd alc ohol tre atme nt, as w ell as several psychiatric hospitalizations.

The Defe ndan t’s prior convictions include the unlawful sale of liquor, two DUIs,

driving without a license, and shoplifting.



      Patric ia Cam pbell c omp leted a victim im pact s tatem ent in which she stated

that she has had insomnia, headaches and recurring fear because of the crime.

She missed twenty days of work. Her grandchildren have continued to ask why

the crime occurred and have had nightmares about “nanny” being killed. The

victim received some counseling regarding the offense.

                                         -5-
        Pam ela Warden testified at the sentencing hearing that she would provide

the Defendant a place to live and allow him to work for her as a housekeeper.

She had know n the Defen dant for years and stated that he r childre n liked him

well.   The D efenda nt testified that, at the time of the robbery, he had a recent

breakup, had only known Gribbin for a few days, and had just been released from

a psychiatric hospital the week before. The Defendant testified regarding his se x-

change process and his concerns about being incarcerated. He stated that he

was currently in the Davids on Coun ty Criminal Justice Center in the Special

Needs Facility. He te stified that he could no t go to the g ym for fea r of other

inmates, and tha t two me n nearly fo rced him to perform ora l sex. He denied that

he knew a bout the robbery in advanc e and s tated that h e felt remorseful about

the crime.    T he De fendan t admitte d that he fled to Florida when his last

sentencing hearing was sch eduled , but return ed and turned h imself in.           He

initially denied a prior criminal record, but then admitted he had lied and that he

had two DUIs.



        Darw in Mitchell, an emp loyee from a D avidson Co unty correctional facility,

testified that the Defendant could be housed in the Special Management area.

The inmates there are locked down for twenty-two hours and are out for two

hours, five days per week. Some cells house two persons, the others hold o nly

one. Inmates who request special protection may be housed there. Mitche ll did

not know of any inmates there who were transsexuals. The Special Needs unit

provides care for those with m edica l proble ms. T he inm ates a re out o f their cells

eight hours a day. Mitchell suggested that the Special Management segregation

unit wou ld be app ropriate for the Defe ndant.




                                          -6-
      The Defenda nt argues that a ppropriate m itigating circum stanc es in th is

case are (a) That he played a minor role in the commission of the offense; and

(b)that he was under great stress and the influence of drugs and alcohol when

the crime was c omm itted. Tenn. Code Ann. § 40-35-113(4), (3). We find the

argument for the app lication of factor (3) unconvincing.       As for factor (4), one

could consider that the Defendant remained in the c ar and did no t actua lly

physic ally perform the act that constituted the aggravated robbery. However, the

evidence also shows that the Defenda nt yelled “Hurry up!” to his accomplice as

she robbed the victim. Moreover, when the Defendant was captured, he was

holding the victim’s purse. The circumstances suggest that the Defendant was

intima tely involved with the crime and we cannot conclude that it would be

appropriate to a pply factor (4).



       The State proposes the application of three enhancement factors: (a) That

the Defendant has previous history of criminal convictions; (b) that the Defendant

possessed or employed a firearm, explosive device, or other deadly weapon

during the commission of the offense; and (c) that the Defendant had no

hesitation about committing a crime when the risk to human life was high. Tenn.

Code A nn. § 40-35-1 14(1), (9), (10).



       The record is clear that the Defendant has had several prior criminal

convictions. Therefore, the applic ation o f this en hanc eme nt facto r is appropriate.

Next, the State argues that factor (9), that the Defendant employed a weapon

during the offense, should be applied.          While it is true that a weapon was

employed by his accomplice during the commission of the offense, there is no

evidence that the “defendant possessed or em ployed” the knife. Tenn. Code

                                          -7-
Ann. § 40-35 -114(9). A s a result, fac tor (9) sho uld not be applied. Finally, the

State contends that factor (10), that the Defendant had no hesitation about

committing a crime when the risk to human life was high, may be applie d in this

case. We agree. Here , the Defenda nt and his coh ort covertly observed, then

followed the victim several miles to an apartment complex. In broad daylight, the

Defendant urged on Ms. Gribbin to perpetrate the robbery using a knife, which

she held to the victim’s thro at. Moreover, the victim’s young grandchildren were

present and were also at risk of being harmed during the commission of the

crime. The Defendant was convicted of simple robbery, thus, factor (10) is not

precluded as being an eleme nt of the offe nse. See State v. Hicks, 868 S.W.2d

729, 73 2 (Ten n. Crim. A pp. 199 3). The refore, facto r (10) ma y be app lied.



      The sentence range for a Range I offender for robbery, a Clas s C felony,

is three (3) to (6) years. Tenn. Code Ann. § 40-35-101. While we recognize the

seriousness of the offense committed, our de novo review of the record leads us

to conclude that a sentence in the upper end of the range is warranted, but that

the circumstances do not merit the maximum sentence in the range. From our

de novo review and in consideration of enhancem ent factors (1) and (10), we

modify th e Defe ndant’s s entenc e to five (5) ye ars.



      Next, the Defendant argues that the trial court erred by denying probation

or community corrections. Although probation "must be automatically considered

as a sentencing option for eligible defendants, the defen dant is not au toma tically

entitled to probation as a matter of law." Tenn. Code Ann. § 40-35-303(b) (1990)

(Sentencing Com miss ion Co mm ents). T his Co urt mu st beg in its sentencing

determination by reviewing the purposes of sentencing set forth in Tennessee

                                          -8-
Code Annotated section 40-35-102. State v. Davis , 940 S.W.2d 558,559 (Tenn.

1997).



         If an accused has been convicted of a Class C, D or E felony and

sentenced as an especially mitigated or standard offender, there is a

presumption, rebuttable in nature, that the accused is a favorable candidate for

alternative sentencing unless disqualified by some provision of the Tennessee

Criminal Sentencing Reform Act of 1989. Tennessee Code Annotated section

40-35-1 02 provid es in part:



         (5) In recognition that state prison capacities and the funds to build and
         main tain them are limited, convicted felons comm itting the most seve re
         offenses, possessing criminal histories evincing a clear disregard for
         the laws a nd m orals o f socie ty, and evincing failure of past efforts at
         rehabilitation shall be given first priority regarding sentencing involving
         incarceration; and

         (6) A defendant who does not fall within the parameters of subdivision
         (5) and is an es pecia lly mitigate d or stan dard offe nder co nvicted of a
         Class C, D o r E felon y is presumed to be a favorable candidate for
         alternative senten cing options in the absence of evidence to the
         contrary.


         The sentencing proce ss m ust ne cess arily commence with a determination

of whether the accused is entitled to th e bene fit of the pres umptio n. Ashby, 823

S.W.2d at 169. As our supreme court said in Ashby: "If [the] de termin ation is

favora ble to the defe ndant, the trial court m ust presu me tha t he is subject to

alternative sentencing.       If the court is presented with evidence sufficient to

overcome the presumption, then it may sentence the defendant to confinement

accord ing to the s tatutory pro vision[s]." Id. "Evidence to the contrary" may be

found in app lying the         cons ideratio ns tha t gover n sen tence s involving




                                           -9-
confinem ent, which are set forth in Tennessee Code Annotated section

40-35-103 (1):



       (A) Conf inem ent is n eces sary to protec t socie ty by restraining a
       defend ant who has a lon g history of c riminal co nduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of
       the offense or confinem ent is particularly suited to provid e an effective
       deterrence to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or
       recently b een ap plied uns uccess fully to the de fendan t.




       In the case at bar, the De fendan t was convicted of the Class C felony of

robbery, for which he is presumptively entitled to an alternative sentence.

Howeve r, the record reflects that the trial judge was concerned with the

Defe ndan t’s focus on his problems and a lack of consideration for the victim.

Apparen tly, the trial court determ ined that c onfinem ent was neces sary to avoid

depreciating the seriousness of the offense.



        The potential or lack of potential for rehab ilitation o f a defe ndan t shou ld

be considered in determining w hether he sh ould be gran ted an alternative

sentence.    Tenn . Code Ann. § 4 0-35-10 3(5). The record reflects that the

Defendant failed to ap pear at h is first senten cing hea ring beca use he fled to

Florida. Although he d id return to Tennessee, this behavior would certainly be

sufficient to unde rmine th e trial court’s c onfiden ce in the D efenda nt’s ability to

abide by the term s of an alte rnative se ntence . See State v. Williams, 914 S.W.2d

940, 950 (Tenn. Crim. App. 1995). Although Ms. Warden offered the Defendant

a place to work and live , the D efend ant ha s had an un stable work history in the



                                          -10-
past and has had a long history of drug abuse and psychiatric problems that have

not abated with treatment. Fina lly, the Defendant demonstrated a lack of candor

while testifying at the sentencing hearing. The Defendant's lack of credibility and

unwillingness to accept respons ibility for his crime reflect a dvers ely on h is

rehab ilitation p otentia l. See State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim.

App. 1996); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). In

light of the evidence in the record, we cannot conclude that the trial court erred

by orderin g the De fendan t to serve his senten ce in con fineme nt.



      The Community Corrections A ct allows ce rtain eligible o ffenders to

particip ate in community-based alternatives to incarceration. Tenn. Code Ann.

§ 40-36-103 . A defendan t must first be a suitable candidate for alternative

sentencing. If so, a defendant is then eligible for participation in a community

corrections program if he also satisfies several minimum eligibility criteria set

forth at Tennessee Code Annotated section 40-36-106(a).                 Because the

Defendant has failed to establish tha t he is a qualified cand idate for alternative

sentencing, he is not eligible for community corrections.



      According ly, we affirm the judgment of the trial court ordering the

Defendant to serve his sentence in confineme nt, but modify the se ntence to five

years. This case is remanded to the trial court for entry of an order consistent

with this opinion.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



                                        -11-
CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                             -12-
