            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON

                     STATE OF TENNESSEE v. ERONIA NEAL

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 98-11641 Joseph B. Dailey, Judge



                     No. W1999-01194-CCA-R3-CD Decided May 5, 2000


The defendant, Eronia Neal, who pled guilty to attempted theft over $1,000.00 and who was
sentenced to a term in the county workhouse, was properly denied probation due primarily to a
lengthy prior criminal record.

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

WADE, P. J., delivered the opinion of the court, in which WOODALL and WITT, JJ., joined.

Garland Ergüden, Assistant Public Defender (on appeal), A. C. Wharton, Jr., District Public
Defender (of counsel), Leslie Mozingo, Assistant Public Defender (at trial), for the appellant, Eronia
Neal.

Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General,
Dan Byer, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                 The defendant, Eronia Neal, entered a guilty plea to attempted theft over $1,000.00.
The trial court approved a Range II sentence of four years, denied probation, and ordered service of
the sentence in the county workhouse. The defendant was fined $500.00. In this appeal of right, he
contends that he should have been granted probation. We find no error and affirm the judgment of
the trial court.

              The indictment charged that on February 15, 1998, the defendant attempted to steal
an automobile having a value over $1,000.00 but under $10,000.00. The victim, H.T. Scott, was the
owner of the vehicle.

               At the sentencing hearing, the defendant candidly acknowledged his "horrible" prior
criminal record. He acknowledged that he had been jailed for some 16 months prior to the
proceeding because he had violated the probationary terms for his prior offenses. He contended,
however, that he merited probation because he had completed 28-day treatment programs in 1998
at the Memphis Mental Health Institute and Charles Lakeside, because he had received "no write-
ups" during his term of incarceration, and because he had participated in an anger management
course and received job training during his term in jail. The defendant asked for probation in order
to obtain employment so as to assist his family. He expressed specific concern for a son who had
failed the fifth grade. The defendant claimed that he had been accepted into a weekly counseling
program if granted probation and he produced a letter signed by four officers recommending that
he receive probation. Conditioned upon the grant of probation, the defendant had arranged
employment at a Mrs. Winner's Restaurant.

                 At the conclusion of the proof, the trial court observed that the defendant was on
probation at the time of this offense. It determined that the defendant had 60 prior arrests, not
counting his juvenile record. Among the convictions listed in the presentence report, which
extended over a continual period from 1974 through 1998, were driving under the influence, felony
theft, driving while a habitual motor vehicle offender, and assault. Many of the offenses were
alcohol, drug, or driving-related, but numerous crimes involved larceny and theft in varying
amounts. While complimenting the defendant's interest in his son's well-being and his willingness
to participate in regular counseling, the trial court determined that the excessive number of his prior
offenses, his propensity to steal, and his failure to meet probationary conditions ruled out any
possibility of an alternative sentence.

               In this appeal, the defendant insists that he has only eight prior theft convictions. He
asserts that many of his crimes involved multiple charges from the same event. The defendant also
argues that deterrence was the primary basis for the denial of probation and that the state failed to
rebut evidence of his amenability to rehabilitation.

                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.

                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,
and -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case
demonstrates that the trial court made adequate findings of fact.


                In our view, the trial court had a proper basis to deny an alternative sentence. The

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defendant had a lengthy prior criminal record and had failed to meet the terms of probation on prior
instances. While there may still be hope of rehabilitation at some point in the future, the evidence
presented at the sentencing hearing provides little indication that the defendant can consistently
conform his conduct to the dictates of the law. In our view, probation under these circumstances
would not serve the ends of justice and the interests of the public. The trial court acted within its
prerogative.

               Accordingly, the judgment is affirmed.




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