             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                              Assigned on Briefs November 29, 2005

                  STATE OF TENNESSEE v. NICHOLAS RIENDEAU

                   Direct Appeal from the Criminal Court for Sullivan County
               Nos. S48592; S49583; and S49650–S49653 Phyllis H. Miller, Judge



                      No. E2005-00576-CCA-R3-CD - Filed December 15, 2005


The defendant, Nicholas Riendeau,1 pled guilty to theft over $1,000, forgery, identity theft, two
counts of possession of drug paraphernalia, possession with intent to deliver less than .5 grams of
cocaine, simple possession of cocaine, possession of a schedule IV drug (clonazepam), and theft over
$10,000. The trial court imposed a Range I, effective sentence of five years in the Department of
Correction. In this appeal, the defendant asserts that the trial court erred by denying full probation.
The judgments of the trial court are affirmed.

             Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed and Remanded

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS
T. WOODALL, JJ., joined.

John D. Parker, Jr., Kingsport, Tennessee, for the appellant, Nicholas Riendeau.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and Teresa M. Smith, Assistant District Attorney, for the appellee, State of Tennessee.

                                                    OPINION

         On November 22, 2004, the defendant entered pleas of guilty to the following offenses:

         Offense                                                                 Sentence
         Theft over $1,000                                                       2 years
         Forgery                                                                 1 year
         Identity theft                                                          2 years
         Possession of drug paraphernalia (2 counts)                             11 months, 29 days
         Possession with intent to deliver less than


         1
           The defendant's surname also appears in the record spelled as "Rindeau" and "Reindeau." It is the policy of
this court to conform the spelling of the defendant's name to the spelling found in the indictment.
       .5 grams of cocaine                                             3 years
       Simple possession of cocaine                                    11 months, 29 days
       Possession of a schedule IV drug (clonazepam)                   11 months, 29 days
       Theft over $10,000                                              3 years

Pursuant to a plea agreement, the defendant's sentence for theft over $1,000 was to be served
consecutively to all of the other sentences, resulting in an effective Range I sentence of five years.
The manner of service was to be determined by the trial court.

        The convictions for theft over $1,000, forgery, and identity theft related to the defendant's
theft of a Chevrolet Cavalier in Kingsport and his subsequent use of a credit card found in the
vehicle. One conviction for possession of drug paraphernalia related to the defendant's possession
of a pipe used for smoking crack cocaine. The conviction for possession with intent to deliver less
than .5 grams of cocaine and the second possession of drug paraphernalia conviction related to a
theft by the defendant's girlfriend of her grandmother's purse. A search by police incident to the
arrest of his girlfriend resulted in the discovery of the cocaine and drug paraphernalia. The
convictions for simple possession of cocaine and possession of a schedule IV drug (clonazepam)
related to seizure of the drugs by police during their investigation into a complaint involving the use
of a gun. The conviction for theft over $10,000 related to the defendant's theft of a Dodge Stratus
in Kingsport.

         At the sentencing hearing, the defendant testified that he supported his six-year-old son. He
acknowledged his drug problem, promised to make efforts toward rehabilitation, and agreed to any
restitution the court might find appropriate. He explained that if he received a probationary sentence,
he would live with his former mother-in-law and work as a project manager for a construction
company, earning at least $15.00 per hour. On cross-examination, the defendant admitted to being
untruthful with the probation officer as to the sequence of events surrounding the theft of the
Chevrolet Cavalier. He also confirmed prior convictions in Virginia, including grand larceny.

        Susan Seymore, the defendant's former mother-in-law, testified that the defendant was a good
father. She confirmed that he had a good relationship with his son and provided him with support.
It was her opinion that he had taken full responsibility for his actions and was genuinely remorseful.
Ms. Seymore expressed concern about his drug problem but asserted that she and her family were
willing to assist him by providing moral support, housing, and transportation. She confirmed that
the defendant had a construction job available to him if he were to be granted probation.

         The trial court denied probation based primarily upon the defendant's criminal history, which
included convictions in Florida for possession of cocaine, two counts of possession of marijuana,
possession of drug paraphernalia, driving with a suspended license, two counts of third degree grand
theft, and two counts of forgery. The trial court observed that after the defendant received a sentence
of two years of "community control," he violated the terms of that sentence one month short of
completion by absconding from supervision, which resulted in six months of incarceration. The trial
court also observed that the defendant had been convicted of criminal trespass, unauthorized use of


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a vehicle, and two counts of grand larceny in Virginia. Based upon those observations, the trial
court determined that his criminal history demonstrated a clear disregard for the laws and morals of
society and that his previous probation revocation demonstrated a failure of past efforts at
rehabilitation. Other factors found to weigh against probation were that the defendant was a leader
in the commission of offenses involving two or more people and that one of his offenses involved
more than one victim. See Tenn. Code Ann. § 40-35-114(3), (4). Factors that the trial court
considered as favorable were that his criminal conduct neither caused nor threatened serious bodily
injury, for which the court gave "very little credit," see Tenn. Code Ann. § 40-35-113(1), and that
he voluntarily confessed his guilt, for which the court gave "some credit." The trial court also
considered the defendant's marriage to his son's mother a "plus" and noted that he had a "good
education history . . . where [he] could do more than sell drugs and steal and burglarize people's
houses and forge checks." In denying probation, the trial court found that the enhancement factors
"far, far outweigh[ed]" any mitigating factors.

       In this appeal, the defendant contends that the trial court erred by ordering a fully
incarcerative sentence. He asserts that he should have been granted probation.

        When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption 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); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate
factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of the sentence.
Tenn. Code Ann. § 40-35-401 (2003), Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210
(2003); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        An alternative sentence is any sentence that does not involve total confinement. See State
v. Fields, 40 S.W.3d 435 (Tenn. 2001). As a standard offender convicted of class A misdemeanors
and class C, D, and E felonies, the defendant is presumed to be a favorable candidate for alternative
sentencing. See Tenn. Code Ann. § 40-35-102(6). In addition, because the sentence imposed is
eight years or less, the trial court was required to consider probation as a sentencing option. See
Tenn. Code Ann. § 40-35-303(a), (b).




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        The trial court’s determination of whether the defendant is entitled to an alternative sentence
and whether the defendant is a suitable candidate for full probation are different inquiries with
different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). When,
as here, the defendant is entitled to the statutory presumption favoring alternative sentencing, the
state must overcome the presumption by the showing of "evidence to the contrary." Ashby, 823
S.W.2d at 169; State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled in part
on other grounds by State v. Hooper, 29 S.W.2d 1 (Tenn. 2000); see Tenn. Code Ann.
§§ 40-35-102(6), -103 (2003). Conversely, it is the defendant who has the burden of demonstrating
his suitability for total probation. Bingham, 910 S.W.2d at 455; see Tenn. Code Ann.
§ 40-35-303(b) (2003).

        In this instance, the trial court considered the testimony at the sentencing hearing, the
presentence report, arguments of counsel, the nature and characteristics of the offenses, all mitigating
and enhancing factors, statements made by the defendant, and the defendant's potential for
rehabilitation. See Tenn. Code Ann. §§ 40-35-102, -103, -210 (2003); State v. Smith, 735 S.W.2d
859, 863 (Tenn. Crim. App. 1987). The record establishes that the thirty-six-year-old defendant had
thirteen prior convictions, twelve of which were during a five-year period. Moreover, the record
indicates that the defendant had an unsuccessful probation in the past. In consequence, it is our view
that the trial court properly denied full probation based upon the defendant's criminal record.

        Accordingly, the judgments of the trial court are affirmed. The cause is remanded for the
trial court to modify the judgment form in case number S49653 to reflect that the defendant entered
a guilty plea.




                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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