# FILED

Au gust 15, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JULY 1997 SES SION

STA TE OF TENN ESSEE , ) NO. 02C01-9702- CR-00073 ) Appellee, ) SHELBY COUNTY ) VS. ) HON. ARTHU R T . BENNETT, JUDG E ) SHA NNON W. POT

TER , ) (Sentencing - Denial of Pr obation) ) Appellant. )
FOR THE APPELLA NT : FOR THE A PPELLEE : JAMES V. BA LL JOHN KNOX WALKUP 217 Exchang e Avenue Attorney Gen eral and Repor ter Memphis, TN 38105 KENNETH W. RUCKER Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-4351 WILLIAM L. GIBBONS Distric t Attorney General THOMAS D. HENDE RSON PERRY HA

YES Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue, 3rd Floor Memphis, TN 38103

OPINI ON FI LED:

AF FIRMED

JOE G. RILEY , JUDGE2 O P I N I O N Defendant, Shannon W. Potter, was convicted by a Shelby County jury of two (2) counts of agg ravated ass ault and sentenced to con curr ent ter ms of three (3) years. The sole issue for our rev iew is whether the trial court erre d in denying probation. We affirm the denial of probat ion.

TRIAL TESTIMONY

On March 4, 1994, the defenda nt and co-defendant were drivi ng around and passed three (3) young males who were walki ng. Each youn g male was wear ing a yarmulke. Alex Katz

and Jonathan Wogan, two (2) of the y oung m ales, were in the seventh and eighth g rades, respec tively . The d ef endant and co-defendant s topped and exited their vehicle and approached the juveniles. Def endant had in his possession a wooden sw ord whic h is used in the martial arts. Defendant r eferred to Katz as a “f_

_ _ ing Jew

boy.” Without provocation, the defendant str uck Katz w ith the swo rd knocking hi m to the ground. Defendant ordered Katz to g et up and then struckhim again w ith the sw or d. Defenda nt, again without provocation, then struck Wogan in the kidney

area. Defendant and t he co-defendant retur ned to the ve hicle and fled. Both victims

were taken to the hospital . Wogan suffered a lacerated kidney and
was hospitaliz ed. Katz received trea tment for hi s arm injur y and wo re his arm i n a sling for a short per iod of time. Thereafte r, Katz continued to experience severe pain and swell ing and had various probl ems with hi s arm up until the time of trial

. The defendant an d co-defendan t were not immediately apprehended. Based upon the d escri ptio n of the s uspe cts a nd th eir ve hicle , they w ere arrested approximatel y one (1) week after the incident.3 SENTENCING HEARING TESTIMONY

Defendant was seventeen (17) years of age at the time of the assault and was transferred from juvenil e court to cr iminal court forthese offenses. He had run away from home on four (4) pr ior occasions and, on one of those occas ions, had remained away for approxi mately one ( 1) year. He had been diag nosed as havi ng Attention Deficit Hyperact ivity

Disorder and had received professional hel p on prior occasions. Defendant testified that at the tim e of the assault he was very angry as a result of breaking u p with hi s girlfr iend. He testified t hat he did not attack the victi ms out of anti-Semitis m. Defendant also had a pr i or criminal history as a juvenile. Two (2) burglary
c harges were adjusted non-judicially as was a reckless endangerment adjudicatio n . At the conclusi on of the hearing, the trial court sentenced th e defen dant as a standard offender to the minimum term of three (3) year s on each of the offensesto
run concurrently; however, the t rial court denied probation

.

PROBATION ELIGIBILITY

An especially mitigated or standard off ender con victed of a Class C, D or E felony is presumed to be a favorable c andidate for alte rnative s entencing in the absence of evidenc e to the contrar y. Tenn. Code Ann. § 40-35-102(6). A trial court must presume that a defendant sente nced to eight y ears or les s and who i s not an offenderfor whom inca rceration is a prior ity is subject to alternative sentencing. State
v. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Cri m. App. 1993). It is further presumed t hat
a sentence other t han incarceration woul d result in successful reha bi litat ion unless rebutted by sufficient e vidence in the record. Id at 380. However, alt ho u gh a defendant may be presumed to be a favorabl e candidat e for alte rnative se ntenci ng, the defendant has the burden of establishing suitabili ty for total proba tion. S tate v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40- 35- 303(b). Even thoug h probation must b e automatically considered, “

the defenda n t is4

not automatically

entitled to pr

obation as a matter

of law.” Tenn. Code Ann. § 40- 35- 303(b) Sentencing C ommission Comments; State v. Ha rtley , 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991 ). In determining whether to grant or deny probati on, a trial court should con sider the circumstances of the of fense, the def endant's cri minal re cord, the defend ant’s social history

and present

condition, the need for deterrence , and the best int erest of the defendant and the publi c. State v. Grear , 568 S.W .2d 285, 286 (Tenn . 1978); State v. Boyd , 925 S.W.2d 237, 244 (Tenn. C rim. Ap p. 1995); State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995)

. Under the 198 9 Sente ncing Act, sentences w hich invol ve confinement are to be based on the follow ing consid erations contai ned in Tenn. Code Ann. § 40-35- 103(1): (A) [c]onfinemen t is necessary to protect society by restrainin g a defendant who has a long histor y of crimina l conduct; (B) [c]onfinement is nec essary to avoid depreciating t he seriousness of the offense or confinement is par ticu larly s uite d to p rovid e an e ff ecti ve deterrence to ot hers likel y to commit s imilar offenses; or (C) [m]e asur es le ss res trict ive th an co nfi nem ent h ave f reque ntly o r recently been applied unsuc cessfully to the defendant. See State v. M illsaps , 920 S.W .2d 267, 270 (Tenn . Crim. App. 1995). This Court’s r

eview of the sentence imposed by the trial court is de novo with
a presumption of correctn ess. Tenn. Code Ann. § 40-35 -401(d). This presumption is conditioned upon an affirmative showing in the record th at the trial j udge considered the sentencing principles and all rel evant facts an d circumstanc es. State v. Ash by , 823 S.W .2d 166, 169 (Tenn . 1991). If our revi ew reflects

that the tr ial court followed the s tatutory s entencing procedure, imposed a law ful sentence after g iving due consideration and proper w eight to the factors and pr inciples s et out under sentenc ing law , and the trial cour t’s find ings of fact are adequately supported by the record, then we may not modif y the sentence
even if we w ould have preferred a different res ult. State v. Fl etcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 19 91).5 CONCLUSI ON

The trial cour

t made extensi ve f indings in denying probation. The trial court noted that the testimony from the licensed psycholog ist at the sentencing hearing did not provide j ustification f or defendant’s violent cond uct on this occasion. The court noted defendant’s prior criminal histo ry as a juvenile and that he did not s eem to ha ve benefited from the non- rest ricti ve measures imposed in those matters . The trial c ourt, further n oting the u njustified and v iolent nature o f these offenses whic h led to substantial injuries to these two (2 ) young males, concluded that incarcer ation was necessary so as not to depreciate the seriousn ess of these off ense s. Fin ally, the trial court concluded that t he interests of society w ould be better s erved by th e incarcerati on of the defen dant. These f indings a nd co nclusions are adequately supported by the record. Ac cordingly , we find no er ror in the den ial of probation.
The judgment of the trial court is AFFIRMED.

JOE G. RILEY , JUDGE

CONCUR:

JOE B. JONES, PRESIDING JUDGE

DAVID H. WELLES, JUDGE