            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE              FILED
                          JANUARY 1998 SESSION
                                                         March 5, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )    C.C.A. NO. 01C01-9704-CC-00153
             Appellee,            )
                                  )    WILLIAMSON COUNTY
VS.                               )
                                  )    HON. DONALD P. HARRIS,
WILLIAM LEE TAYLOR,               )    JUDGE
                                  )
             Appellant.           )    (Sentencing)



FOR THE APPELLANT:                     FOR THE APPELLEE:


JOHN HENDERSON                         JOHN KNOX WALKUP
Public Defender                        Attorney General & Reporter

C. DIANE CROSIER                       RUTH A. THOMPSON
Asst. Public Defender                  Counsel for the State
                                       450 James Robertson Pkwy.
EUGENE J. HONEA                        Nashville, TN 37243-0493
Asst. Public Defender
407-C Main St.                         JOSEPH D. BAUGH
P. O. Box 68                           District Attorney General
Franklin, TN 37065
                                       JEFF BURKS
                                       Asst. District Attorney General
                                       P. O. Box 937
                                       Franklin, TN 37065




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                                OPINION



                    In September 1996, the defendant pled guilty to possession of marijuana

for resale and agreed to be sentenced as a Range II multiple offender. A sentencing

hearing was held to determine the length and manner of his sentence. After the hearing,

the trial judge sentenced the defendant to three years in the Tennessee Department of

Correction. In this appeal as of right, the defendant argues that the trial judge erred when

he refused to suspend the sentence and place the defendant on probation. After a

review of the record and applicable law, we find no error and affirm the judgment of the

court below.



                    At his sentencing hearing, the defendant testified that he had been

convicted of several felonies and that he had been previously placed on probation. He

further testified that he had violated his probation when he failed to meet the

requirements of the treatment facility where he was receiving counseling for substance

abuse. He told the court that he had been treated for substance abuse and depression

at three different facilities. The defendant also admitted that he had been arrested while

on bond in the instant case and was presently awaiting trial in Coffee County. 1



                    The defendant, who was twenty-four years old at the time of sentencing,

is married and has two children. He testified that his mother has custody of his first child

because the child’s mother died shortly after childbirth. However, he said that he helps

support that child and that he is the primary source of income for his wife and second

child.       At the time, he had been employed at Tennessee Propellers, Inc., for

approximately six months. The defendant also testified that he has been attending

Motlow State Community College in Tullahoma. He said he planned to get an associate’s


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             The defendant was ultimately acquitted of the theft of property charge.

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degree and then transfer to Middle Tennessee State University.



              The defendant told the court that he had not used drugs since his arrest

and that being married had changed him. He testified that he realized he could not

continue the course his life had taken and that he had to take responsibility for his

actions.



              After hearing this testimony, the trial court sentenced the defendant to three

years in the Tennessee Department of Correction and ordered him to pay a two thousand

dollar ($2000) fine. The trial judge pointed out that as a Range II multiple offender, the

defendant was not entitled to the presumption of suitability for an alternative sentence.

The court found two enhancing factors: that the defendant has a previous history of

criminal convictions in addition to those necessary to establish the appropriate range and

that the defendant had a previous history of unwillingness to comply with the conditions

of a sentence involving release in the community. T.C.A. § 40-35-114(1) & (8). As

mitigating factors, the judge considered the fact that the defendant’s conduct neither

caused nor threatened serious bodily injury and that the defendant had taken some

responsibility for his conduct. T.C.A. § 40-35-113(1) & (13).



              The trial judge then stated that having considered the appropriate

sentencing considerations, including that measures less restrictive than confinement

have been frequently or recently applied unsuccessfully, he had determined that the

defendant was not suitable for probation. The judge stated that the although the

defendant had been previously placed on probation and in treatment, he still “saw fit to

go out and make his living selling drugs in the community.”



              The defendant now appeals the trial court’s determination and urges this


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court to suspend his three year sentence and place him on probation. When a defendant

complains of his or her sentence, we must conduct a de novo review with a presumption

of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is

improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing Commission

Comments. This presumption, however, "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).



              Tennessee Code Annotated § 40-35-103 sets out sentencing considerations

which are guidelines for determining whether or not a defendant should be incarcerated.

These include the need "to protect society by restraining a defendant who has a long

history of criminal conduct," the need "to avoid depreciating the seriousness of the

offense," the determination that "confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses," or the determination that

"measures less restrictive than confinement have frequently or recently been applied

unsuccessfully to the defendant." T.C.A. § 40-35-103(1).



              In determining the specific sentence and the possible combination of

sentencing alternatives, the court shall consider the following: (1) any evidence from the

trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing

and the arguments concerning sentencing alternatives, (4) the nature and characteristics

of the offense, (5) information offered by the State or the defendant concerning enhancing

and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the defendant's

statements in his or her own behalf concerning sentencing. T.C.A. § 40-35-210(b). In

addition, the legislature established certain sentencing principles which include the

following:

               (5) In recognition that state prison capacities and the funds to
               build and maintain them are limited, convicted felons

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               committing the most severe offenses, possessing criminal
               histories evincing a clear disregard for the laws and morals of
               society, 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 especially mitigated or standard
               offender convicted of a Class C, D or E felony is presumed to
               be a favorable candidate for alternative sentencing options in
               the absence of evidence to the contrary.


T.C.A. § 40-35-102.



               After reviewing the statutes set out above, it is obvious that the intent of the

legislature is to encourage alternatives to incarceration in cases where defendants are

sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,

it is also clear that there is an intent to incarcerate those defendants whose criminal

histories indicate a clear disregard for the laws and morals of society and a failure of past

efforts to rehabilitate.



               The defendant complains that the court should not have denied his request

for probation. In determining whether the defendant should be granted probation, the

court must consider the defendant’s criminal record, social history, present physical and

mental condition, the circumstances of the offenses, the deterrent effect upon the criminal

activity of the accused as well as others, and the defendant’s potential for rehabilitation

or treatment. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993). In this

case, the defendant had a significant criminal history. During the period of December 6,

1990, to January 31,1991, the defendant was arrested six times. He was ultimately

convicted of two counts of burglary, two counts of aggravated burglary, and two counts

of forgery up to one thousand dollars ($1000). According to the presentence report, the

defendant was placed on probation and was ordered to enter a treatment facility as a

condition of his probation. His probation was revoked however, on September 9, 1991,

                                              5
when the defendant failed to comply with the facility’s requirements. The defendant then

began serving his original sentence of three years. He was released on January 30,

1992, and placed on parole. His sentences expired on March 24, 1994. He was arrested

for the instant offense on April 9, 1996. This type of history clearly supports the trial

court’s application of the enhancement factors as well as the sentencing consideration

that measures less restrictive than confinement have been frequently or recently applied

unsuccessfully to this defendant.



              The defendant argues that the trial judge incorrectly concluded that the

defendant made his living selling drugs and that the judge did not take into consideration

the defendant’s potential for rehabilitation. We agree that the record does not support the

trial judge’s assertion that the defendant makes a living selling illegal drugs. The record

reflected that this is the defendant’s first drug-related offense and that he is otherwise

employed. However, it is clear that the trial judge did not sentence the defendant based

on this one statement. The trial judge had ample support for his decision to deny

probation. As for the defendant’s ability to be rehabilitated, we commend his efforts to go

to school, maintain employment, and support his family. However, we are not convinced

and nor was the trial court that the defendant is serious about rehabilitation. Once before

he was given the opportunity for rehabilitation and he proved unsuccessful. Even after

having been incarcerated, he continued his substance abuse and his criminal behavior.

Because of his prior criminal record and his previous inability to cooperate with probation

requirements, we find that the trial court did not err in denying the defendant’s request for

probation. The judgment of the court below is affirmed.




                                                  __________________________________
                                                  JOHN H. PEAY, Judge




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CONCUR:



_______________________________
JERRY L. SMITH, Judge



_______________________________
THOMAS T. W OODALL, Judge




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