         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                     Assigned on Briefs April 25, 2001, at Knoxville

                   STATE OF TENNESSEE v. JUDY K. CARUSO

                   Direct Appeal from the Criminal Court for Lewis County
                            No. 5993 Timothy L. Easter, Judge


                      No. M2000-01265-CCA-R3-CD - Filed May 22, 2001


The defendant, Judy K. Caruso, entered pleas of guilt to two counts of aggravated burglary and two
counts of theft of property over $1,000. As a part of the plea agreement, the state agreed to dismiss
two charges of possession of stolen property and one charge of misdemeanor vandalism. The
defendant negotiated concurrent sentences of four years on the burglary convictions and two years
on the theft convictions. The trial court denied a request for probation, ordered a 200-day jail
sentence to be served day for day, and required the balance of the four-year sentence to be served in
a Community Corrections program. In this appeal of right, the defendant claims that she should have
been granted an alternative sentence involving immediate release. The judgment is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL , JJ., joined.

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Judy K. Caruso.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

         On August 26, 1998, Thomas and Kathleen Bartoszek discovered that their second residence,
a mobile home located in Hohenwald, had been burglarized. There was evidence of forced entry
through a rear window. The items removed from the residence had a value of $2,125.88. A week
later, Jimmy and Patricia Kelley discovered that their residence in Hohenwald had been burglarized
as well. Among the items stolen were a doll collection, jewelry, and a vacuum cleaner.

         On October 11, 1998, Ms. Bartoszek reported to the Lewis County Sheriff's Office that some
of the items stolen from her home were for sale at a local flea market. Lieutenant Lee Staggs, who
was assigned to investigate, learned that the defendant's husband had sold the stolen items to the flea
market. A search of the Caruso residence led to the discovery of more stolen items. The defendant
initially denied any knowledge of the burglaries and claimed that she had purchased the items from
another individual. When officers identified some of the personal property in the defendant's
residence as items taken during the Kelley burglary, however, the defendant admitted her
involvement in each of the burglaries. She then led officers to other stolen items, which she had
concealed at her home and surrounding property.

         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). 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 (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 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;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

       Especially mitigated or standard offenders convicted of Class C, D, or E felonies are, of
course, presumed to be favorable candidates "for alternative sentencing options in the absence of
evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none
of which apply here, probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b).

        Among the factors applicable to probation consideration are the circumstances of the offense,
the defendant's criminal record, social history and present condition, and the deterrent effect upon
and best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285 (Tenn.1978). The
nature and circumstances of the offense may often be so egregious as to preclude the grant of
probation. See State v. Poe, 614 S.W.2d 403 (Tenn. Crim. App. 1981). A lack of candor may also
militate against a grant of probation. State v. Bunch, 646 S.W.2d 158 (Tenn. 1983).

        The purpose of the Community Corrections Act of 1985 was to provide an alternative means
of punishment for "selected, nonviolent felony offenders in front-end community based alternatives
to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence provides
a desired degree of flexibility that may both benefit the defendant and serve legitimate societal aims.
State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the defendant meets the


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minimum requirements of the Community Corrections Act of 1985, the defendant is not necessarily
entitled to be sentenced under the Act as a matter of law or right. State v. Taylor, 744 S.W.2d 919
(Tenn. Crim. App. 1987). The following offenders are eligible for Community Corrections:

                 (1) Persons who, without this option, would be incarcerated in a correctional
        institution;

               (2) Persons who are convicted of property-related, or drug/alcohol-related
        felony offenses or other felony offenses not involving crimes against the person as
        provided in title 39, chapter 13, parts 1-5;

                (3) Persons who are convicted of nonviolent felony offenses;

               (4) Persons who are convicted of felony offenses in which the use or
        possession of a weapon was not involved;

                (5) Persons who do not demonstrate a present or past pattern of behavior
        indicating violence;

                (6) Persons who do not demonstrate a pattern of committing violent offenses;
        and

               Persons who are sentenced to incarceration or on escape at the time of
        consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).

        However, subpart (c) creates a "special needs" category of eligibility:

        Felony offenders not otherwise eligible under subsection (a), and who would be
        usually considered unfit for probation due to histories of chronic alcohol, drug abuse,
        or mental health problems, but whose special needs are treatable and could be served
        best in the community rather than in a correctional institution, may be considered
        eligible for punishment in the community under the provisions of this chapter.

Tenn. Code Ann. § 40-36-106(c) (emphasis added). To be eligible for Community Corrections
under subpart (c), the defendant must first be eligible for probation under Tenn. Code Ann. § 40-35-
303. State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).

         In Ashby, our supreme court encouraged the grant of considerable discretionary authority to
our trial courts in sentencing matters. 823 S.W.2d at 171; see State v. Moss, 727 S.W.2d 229, 235
(Tenn. 1986). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at 922. "It
is not the policy or purpose of this court to place trial judges in a judicial straight-jacket in this or


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any other area, and [appellate courts] are always reluctant to interfere with their traditional
discretionary powers." Ashby, 823 S.W.2d at 171.

        The defendant is 44 years old, married and has three children, two of whom have reached
majority and live independently, and one of whom is 17 years of age. She has a high school
education but minimal work experience and, apparently, was unemployed at the time of this offense.
She attributed her involvement in the crimes to severe depression, medication, and alcohol abuse.
The record indicates that the defendant had two prior theft-related convictions in Indiana, apparently
in 1989 and 1992. The defendant is disabled, having been diagnosed with degenerative disk disease,
 and receives monthly disability benefits in the sum of $515.00.

        At the conclusion of the sentencing hearing, the trial court carefully considered each of the
principles and considerations involved and determined that the defendant was a favorable candidate
for alternative sentencing due in great measure to the age of the defendant's prior misdemeanor
offenses. It concluded, however, that some confinement was necessary in order to avoid depreciating
the seriousness of the offense. In addition to the 200-day jail sentence, the defendant was required
to participate in any after-care program recommended by mental health professionals, participate in
a weekly Alcoholics Anonymous program, and make restitution in the amount of the insurance
deductible.

          Because the trial court found no basis to deny probation based upon deterrence and also
determined that "the only measures [less restrictive than confinement] that have ever been applied
to this defendant are fairly old, and there is no proof that she was unsuccessful with those measures
. . . other than she continues to break into people's homes some years later," the defendant argues that
probation should have been granted without any period of incarceration. We disagree.

       The record establishes that the defendant removed practically every item of value from the
Bartoszek and Kelley residences. She was so thorough that she even dug the flowers from the yard
of one of the residences. When initially questioned by law enforcement authorities about the
Bartoszek burglary, she was untruthful. She had hidden some of the stolen items inside the walls
of her residence. Other items were hidden outside on her property. She acknowledged her
culpability only when confronted with additional stolen items she could not otherwise explain. It
was established at the sentencing hearing that officers also found a purse and five or six credit cards
belonging to Lanota Wilson outside the defendant's residence. Upon further investigation, it was
determined that the defendant had twice burglarized a residence in another county in the presence
of an elderly, wheelchair-bound woman. When the woman took her photograph in the second
burglary, the defendant confiscated the camera.

        In our view, the repeated nature of the criminal conduct of the defendant, her lack of candor
in the initial stages of the investigation, and the extensiveness of the thefts at each of the two
residences, warranted a term of split confinement: a determinant jail sentence of 200 days followed
by an alternative sentence involving release into the community in a treatment program for alcohol
and drug abuse. That the defendant had been convicted of similar crimes several years before


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suggests some resistance towards rehabilitation. In this instance, the trial court carefully considered
the sentencing principles, the applicable law, and the relevant facts and circumstances. In our view,
the sentence imposed was well within the discretionary authority traditionally granted trial courts in
matters of sentencing.

       Accordingly, the judgment is affirmed.



                                               _________________________________________
                                               GARY R. WADE, PRESIDING JUDGE




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