             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                               Assigned on Briefs September 25, 2001

                   STATE OF TENNESSEE v. CHARLES L. DEBUTY

                 Direct Appeal from the Circuit Court for Blount County
     Nos. C-12524, C-12599, C-12600, C-12603, C-12607     D. Kelly Thomas, Jr., Judge



                                       No. E2000-03039-CCA-R3-CD
                                              October 9, 2001

The defendant pled guilty in the Blount County Circuit Court to four charges of theft and one charge
of automobile burglary. The court sentenced him to an aggregate sentence of four years, with seven
months in jail, and the balance to be served on intensive probation. In this appeal as of right, the
defendant argues that the trial court imposed an excessive amount of incarceration. After careful
review of the record, we affirm the defendant’s sentence but remand for entry of a corrected
judgment in No. C-12607.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                        Remanded for Entry of Corrected Judgment

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOE G.
RILEY, JJ., joined.

Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond Mack Garner, District Public Defender;
and Shawn G. Graham, Assistant District Public Defender (at trial), for the appellant, Charles L.
Debuty.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                     OPINION

       The defendant, Charles L. Debuty, pled guilty to three charges of theft of property over
$1000, a Class D felony, one charge of theft of property over $500, a Class E felony, and one charge
of automobile burglary,1 a Class E felony. All charges stemmed from criminal acts occurring in July,


         1
        Indictment No. C-12607 charged the defendant with burglary of a motor vehicle, in violation of Tennessee
Code Annotated Section 39-14-402, and he pled guilty to that offense. However, the judgment for this indictment recites
                                                                                                         (continued ...)
August, and September 1999, when the defendant and others stole a Kawasaki motorcycle, a Yamaha
all-terrain vehicle, a Honda four-wheeler, four chrome automobile wheels, and broke into another
automobile. Pursuant to the plea agreement, the defendant received an effective four-year sentence
with the manner of service to be determined by the trial court. Following a consolidated sentencing
hearing, he was sentenced as a Range I, standard offender, to an aggregate sentence of four years
with seven months to be served in local confinement and the balance on intensive probation.
Additionally, the court ordered that the defendant pay $2750 in restitution. In this appeal, the
defendant challenges the manner of service of his sentence, asserting that the trial court imposed an
excessive term of confinement.

                                                        DISCUSSION

       At the time of sentencing, the defendant was a twenty-two-year-old high school dropout. He
had been living with his mother and stepfather for about two and one-half years, and had been
employed full-time for the past year. He also worked occasionally for his stepfather as a roofer. The
defendant had regularly smoked marijuana since the age of sixteen. He was also addicted to crack
cocaine at the time of the instant offenses.

        At the sentencing hearing, the defendant testified that he had been “mixed up with some
people that was pretty much strung out on coke real bad,” and that they stole the motorcycles and
four-wheeler to get money for drugs. He admitted having a substance abuse problem but claimed
that he had not used cocaine in over a year. The defendant also admitted that his drug screen for the
presentence report tested positive for marijuana and that he still smoked marijuana and drank alcohol
occasionally. Regarding his marijuana use, he stated, “And if it’s there, you know, if it comes
around, you know, I might hit it once or twice and pass it on. Just where I’m at basically.”

        The defendant’s mother, Janice Johnson, testified on the defendant’s behalf. She said that
the defendant had lived with her and her husband for the past two and one-half years, and that she
had seen “a big difference” in her son during the past year. She further said that the defendant no
longer associated himself with the people who were a bad influence on him, and that this incident
had “got[ten] his attention real well.”

       The defendant’s work supervisor, William Wesley Matlock, also testified on the defendant’s
behalf. He stated that the defendant was “a good worker,” “a dependable employee,” and seldom
missed work. He said that the charges against the defendant had not affected his job performance
in any way.

                                                        ANALYSIS


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           (...continued)
that the defenda nt’s guilty plea was to theft, in violation of Tennessee Code Anno tated Section 39-14 -103, also a Class
E felony. Accordingly, we remand to the trial court for entry of a corrected judgment, showing that the plea of guilty
was to burg lary of a moto r vehicle, in viola tion of Ten nessee Co de Anno tated Sectio n 39-14-4 02, a Class E felony.

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                                          Standard of Review

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken 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). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d
163, 166 (Tenn. Crim. App. 1993). However, this court is required to give great weight to the trial
court's determination of controverted facts as the trial court's determination of these facts is
predicated upon the witnesses’ demeanor and appearance when testifying.

       In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancing factors, (g) any statements made by the
accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn.
Crim. App. 1987).

        The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
imposed by the trial court is erroneous.

                                       Length of Confinement

         The defendant argues that the trial court erred in sentencing him to seven months of
confinement. An especially mitigated or standard offender convicted of a Class C, D, or E felony
is presumed to be a favorable candidate for alternative sentencing, in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6) (1997). As a standard offender who pled guilty to three
Class D felonies and two Class E felonies, the defendant was presumed to be a favorable candidate
for alternative sentencing. However, if the court is presented with “evidence sufficient to overcome
the presumption, then it may sentence the defendant to confinement according to the statutory
provision.” Ashby, 823 S.W.2d at 169. The presumption in favor of alternative sentencing may be
overcome by facts contained in the presentence report, evidence presented by the State, the testimony
of the accused or a defense witness, or any other source, provided it is made a part of the record.
State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). Evidence sufficient to overcome
the presumption includes evidence showing that “[c]onfinement is necessary to protect society by
restraining a defendant who has a long history of criminal conduct,” “[c]onfinement is necessary to


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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 “[m]easures less restrictive than
confinement have frequently been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-
35-103(1)(A)-(C) (1997); see Ashby, 823 S.W.2d at 169.

         The burden was upon the defendant to show that he was a suitable candidate for probation.
State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b) (1997). In order to meet this burden,
the defendant “must demonstrate that probation will ‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim.
App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

       There is no bright line rule for determining when a defendant should be granted probation.
Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a case-by-case
analysis. Id. Factors to be considered include the circumstances surrounding the offense, the
defendant’s criminal record, the defendant’s social history and present condition, the need for
deterrence, and the best interest of the defendant and the public. Goode, 956 S.W.2d at 527.
Another appropriate factor is the defendant’s credibility or lack thereof, as this reflects on the
defendant’s potential for rehabilitation. Id.

        The defendant argues that, in setting his sentence, the trial court should have considered his
remorse and willingness to plead guilty in these cases as mitigating factors. He asserts that his lack
of a “particularly lengthy” criminal record and his “ability to wean himself from his cocaine
addiction” weigh in favor of his being granted less jail time. Also, he argues that, although he had
not received intensive treatment for his drug addictions, he had been able to cease his use of cocaine,
demonstrating that he has good potential for rehabilitation.

         At the sentencing hearing, the trial court explained why the defendant was being sentenced
to split confinement:

                        You will serve this sentence, seven months in the jail and the
               rest of it on intensive probation. And that is basically half of your
               release eligibility if I didn’t put you on probation at all. The reason
               – that is an alternative sentence, but the reason I’m not putting you on
               immediate probation is – well, there are many reasons. The reasons
               are many.

                       Number one is your criminal history. You’ve been on
               probation or release type programs many times since you were a very
               young man – or a teenager. And continue to commit more crimes.
               The likelihood of your being effectively rehabilitated is not good,
               because rehabilitation efforts have all failed up to this point. You say
               that you are hanging out with different people, that you’ve gotten rid


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               of this old crowd, that you’re not being influenced by people like that.
               But, still, you’re smoking marijuana three or four times a week. And
               the legislature still says that’s a crime.

                      THE DEFENDANT: I haven’t messed with it in a couple of
               weeks, three weeks.

                       THE COURT: Okay. You smoked marijuana after you pled
               guilty in these cases back in August of this year. Here you are facing
               a four-year prison sentence, possibly. Nothing to you, you go out and
               party and smoke a little marijuana. Which tells me a lot about your
               attitude. You haven’t made all the progress you need to make. You
               may have made some. I won’t discount that. And I think part of it is
               the fact that you have yet to really be punished for any of the crimes
               that you’ve committed. So, that’s also part of this sentence.
               Hopefully, you will see that you can’t continue to do this in any
               shape, form, or fashion.

                       You will be eligible for work release during your seven
               months in jail, but you cannot get work release until you can have a
               clean drug screen. So, how much you are delayed in getting work
               release is a direct result of your breaking the law since you pled
               guilty.

        As the record shows, the defendant has a steady history of criminal activity. According to
the presentence report, the defendant had been convicted of misdemeanor theft on May 14, 1999, and
was given a suspended sentence of eleven months, twenty-nine days and ordered to pay a fine, costs,
and restitution. Thus, at the time he committed the offenses which are the basis for this appeal, he
was serving a suspended sentence for his theft conviction.

        The defendant also was convicted of reckless driving and underage possession and
transportation of beer on December 6, 1999, for which he received a six-month suspended sentence.
He was convicted on April 26, 1999, of two counts of misdemeanor drug possession, apparently
occurring on October 2, 1998, and January 20, 1999. His punishment for one included a thirty-day
suspended sentence with eleven months, twenty-nine days probation; the punishment for the other
is not set out in the presentence report. On October 31, 1997, he had apparently been placed on
diversion for vandalism. Thus, since his eighteenth birthday, it appears that the defendant had been
on probation three times and diversion once. Further, the defendant had two arrests for violation of
probation on November 18, 1998, and February 14, 2000.

         The defendant had also been convicted of attempted burglary when he was a juvenile, for
which he had been ordered to complete a program at the Peninsula Lighthouse. The defendant
testified that Peninsula Lighthouse transferred him to Cornerstone Behavioral Center, where he


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received outpatient therapy, consisting of group meetings and Alcoholics Anonymous meetings, for
about six months.

         Based upon our review, we conclude that the trial court “considered the sentencing principles
and all relevant facts and circumstances.” Although barely in his twenties, the defendant had already
amassed a growing record of arrests on a fairly regular basis. The reverse side of the defendant’s
argument that he should be credited for ceasing to use cocaine is the fact that even with the
knowledge that he would soon have a sentencing hearing for five felony convictions, he was unable
to refrain from using marijuana. The presentence report certainly affirms the trial court’s observation
that there had been few consequences to the defendant for his prior crimes other than, once again,
to be placed on probation. Prior attempts at rehabilitation appear to have made little impression on
the defendant. Accordingly, we cannot conclude that the trial court erred in determining that the
defendant should serve a period of incarceration before embarking upon intensive probation.

                                       CONCLUSION

        After carefully reviewing the record, we conclude that the defendant has failed to carry his
burden of showing that the manner of service of the sentence imposed was inappropriate.
Accordingly, the judgment of the trial court is affirmed, but the matter is remanded to the trial court
for entry of a corrected judgment in No. C-12607.



                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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