1 M s. Sharkl ey’s fir st name is va rious ly s pell ed in t he recor d as “Val isa ” and “Vil isa .” Bec ause t he spel li ng in the indi ctment is “Vili sa Shar kley, ” tha t s pell ing wil l be us ed in t his opini on. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE June 19, 200 2 Session

STATE OF TENNESSEE v. JAM ES ALFRED C AREY
Direct Appeal from the Criminal Court for Sumner County No. 966-1999, 968-1999, 4-2000 Jane Wheatcraft, Judge

No. M2001-02003-CCA-R3-CD - Filed July 31, 2002

The Defendant pl ed guil ty to one count of selling less than 0.5 grams of cocaine, a Schedule II controlled s ubstanc e, and to three counts of domestic assault. The trial court sentenc ed the Defendant

as a Range I

I, multiple

offende r to ten year s incarc eration for the d rug conviction an d to eleven months and twenty-nine days for each of the assault convictions. The trial court ordered that the sentence s be served concurrently, but consecutive to a prior sentence. The Defendant now appeals , arguing that he was improperly sentenced. Finding no error, we affirm the judgment of the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined.
Randy P. Lucas, Gallatin, Tennessee, for the Appellant, James Alfr ed Carey.

Paul G. Summers, Attorney General; Jennifer L. Bledsoe, A ssistant Attorney Genera l; Lawr ence Ray Whitley, District A

ttorney G eneral ; and Dee

David Gay, Assi stant Distr

ict Attorn ey Gene ral, for the Appellee, State of Tennessee.

OPINION

I. FACTS

In De cember

1999, the

Sumner Cou

nty Gran d Jury indi cted the Defend ant, Jame s Alfre d Carey, for one count of

selling cocaine, a Schedule II controlled substance, in a n amount more than 0.5 grams ; for one

count of d

omestic a ssault ag ainst Vilis a Sharkley; 1 and for one count of attempted first degree murder a gainst Satonya Fitts. In January 2000, the Sumner County Grand Jury indicted-2-

the Defend ant for o ne count o f assaul t against K

iley Bittis. On March 15, 2001, the Defendant pled guilty to the reduced

offense of thesale of less than 0.5 grams of cocaine. On May 4, 2001, pursua nt to a plea agreement, the

Defendant entered

pleas of guilty to three domestic assault charges, one of which was a reduction of the attempted first degreemurder c harge in volving victim, Satony a Fitts.

On June 12, 2 001, the tr

ial cour t conduct ed a sent encing he aring to

determine the length and
manner of service of the Defendant’s sente nces

. At the conclusion of the hearing, the trial court determinedthat the Defendant was a multiple offender, qualifie d for a sentencing range of sixto ten years for the felony cocaine sale. The cour t found no mitigat ing factor s and applied three enhancement

factor s. The court denied alternative sentencing and orde red that the Defendant serve ten years in the Tennessee Department of Correction for the felony sale of c ocaine u nder 0.5 grams. The court further ordered that the Defe ndant serve eleven months and twenty-nine days on each of the three misdemeanor assault charges. The trial c ourt or dered that the sentences be served concurrently, resulting

in an eff

ective s entence

of ten ye ars in the

Tenness ee Depa

rtm en t of Correction, to be served consecutively to a prior felony se ntence. This appeal ensued.

The facts underlying the Defendant’s convictions, as set forth in the indictments and from evidence present

ed at the se nten cing hea

ring, ar e as follo ws: On July

9, 1999, the Defe

ndant sold crack cocaine to an underc over age nt in Gallatin, Tennessee. Tennessee Bureau of I nvestigation laboratory tests revealed the amount of cocaine to be under 0.5 grams. On June 5, 1999, the Defendant

assaulted Vilisa Sharkley by holding her down by the face, choking her, beating her about the head, and pulling her hair out during an argument conce rning telephone numbers stored in her pager. On June 5, 1999, the Defend ant assa

ult ed sixteen-year-old Satonya Fitts. Fitts was eight months pregnant with the Defendant’s unborn child at the time. On August 31, 1999, the Defendant assaulted Kiley Bittis by picking her up and dropping or throwing her in a ditch.

The evidence presented

at the sentencing hearing was as follow s: Sergea nt William S orrells of the Gallatin Police Department testified that he arrested the Def endant on August 31, 1999. He testified that Kile

y Bittis app

roache d him

and stated that she and the Defendant had formerly been involved in a ro mant ic relationship, but that she had ended their relationship about six months before. Accord

ing to Sorr

ells, Bittis also told h

imthat the D efenda

nt had tried to stop her while she
was walking o n Pembert

on Circle , but Bittis di d not stop because she was afraid of

the Defe ndant. Sorrells further testified

that, according to Bittis, the Defendant became angry whe n she would not stop, called her names, picked her up over his head, and threw her into a ditch. Bittis also s tated to Sorrells that as she was trying to get out of the ditch, the Defe ndant hit her in

the back of the head withhis fist. Sorrells testified that he observed various injuries on Bittis, including scrapes on her elbows, a large abrasion on her back, and a large knot on the back of her hea d. Sorrells testified that Bittis was ninetee

n years o ld at the ti me. Sorre lls testifi ed that he

spoke with

a witness, Mahogany Talley, who was walking with Bittis at the time and who corroborated Bittis’ story.

Officer Gail H um es of the Gallatin Police Department testified that on June 5, 1999, she obtained two warr

ants aga inst t he Defenda nt. She testified that she and several other officers responded

to a “shots-fired call” in the area of Alexander Court and

Lackey Circle a t approxi mately-3-

7:29 p.m. There they encountered sixteen-yea r-old Satonya Fitts along with a numb er of other people. Fitts, who appeared distressed, told them that she was pregnant with the Defendant’s unborn child and that approximately five minutes prior to the officers’ arrival, she and the Defendant had
a verbal altercation. She stated that she hadasked the Defendant to leave beca use she was afraid of him and because she had heard that he ha d previously beaten another girlfr iend earlier. Humes testified that Fitts then state d that the Defend ant told he

r that he “wasn’ t going tolet anyone run his life,” whereupon she asked him again to leave. At that point, according to Fitts’ report to Humes at the scene, the Defendant, who was about f ifteen feet aw ay, pulle d a chrom e handgu n from his waistband, pointed it

at Fitts and fired one shot dire ctly at he r befor e walking away an d getting in

to
a vehicle of unknow n make and model. H umes testi fied tha

t a .22-caliber shell casing was recovered near the area where Fitts said the Def endant had been standing.

The State introduced an affidavit sworn out at the office of the

Defend ant’s att

orney by Fitts subsequent

to the nigh t of the offense. In the affidavit, Fitts swore that the Defenda nt never fired
a weapon at

her, that she never saw a weapon, a nd that she never told the police that the Defendant had fired a weapon at her. Humes ac knowledged that no laboratory analysis had been performed on the shell casing to determine from wha t weapo n it was fi

red, nor was it tes ted for f

ingerpr ints. Humes further testified that she was aware of Fitts’ aff idavit and that

no .22-c aliber weapon consi stent with the facts as alleged originally by Fitts was, at any time, recovered fr om the Defend ant. Humes, however, reaffirmed her testimony that Fitts did tell her that the Defendant had a weapon and that he fired it at her.

Officer Humes also testified about a separate incident on the same day i nvolving the Defend ant. When Humes returned to the Gallatin Police Department to obtain war rants for t

h e assault against Fitts, another victim , Vilisa Sha rkley, c ame to the Police Department. Sharkley told Humes that the Defendant had assaulted her at the re sidence of Patrina Franklin on Lackey Circle. Sharkley stated that the Defendant arrived at the location, demanded her pager, and started looking through the numbers. According to Sharkley, the Defendant then “ head-butted” her

and told one of the witnesse s to leave and come back in about ten minutes so that he could beat Sharkle y. Sharkley reported that the Defendant then choked he r, beat her about the head, pulled out her hair , and lef

t. The officer testified

that she observed a mark on the victim’s forehead and “obvious choke marks aroundher neck.” Humes testified that altho ugh it is cu stomary to

photograph victims who display visible signs of violence, no photographs were taken in this case. Humes explained that such marks do not show up well in p

hotograp hs of some one who ha s dark ski n. She also testifie d that the

victim declined Humes’ suggestion that she obtain medical treatment.

Officer Humes testified that the Defendant was not arrested that evening. Humes noted that
an arrest report stated that the Defendant was arrested on the Shar kley charges in October 1999 and that she was n ot the ar

resting o fficer . Humes te stified th at she ha d an enc ounter w ith the Defendant
on a prior occasion, in 1998 or early 1999, when she witnessed the Defendant

in possession of a stolen weapon. Humes als o related knowledge of an occasion when the Defend ant was ta

ken into custody as he fled

from a res idence in which a weapon was found immediately afte rward. She recalled another incident where the Defenda nt had shot a vic tim in the le g on Blake more Stre et, and-4-

she stated that the Defendant had been convicted of aggravated assault. Humes testified that she was notpersonally involved in the latter two incident s, but rel ied on inf ormation r

eceive d from others. Following Humes’ testimony, the State introduced into evidence certified copies of the De fendant’s prior convictions for aggr

avated a ssault an d for poss ession of over 0.5 grams of cocaine with intent to sell.

Michelle

Thurman, the Defendant’s adoptive mother, testified that she had known and cared for the Defendant

since he was three months old. She testif ied that since the D efenda nt had bee

n in jail, he seeme d like a different person because he had calmed down a lot and “talked better.” Thurman al so testified that she was aware that the Defenda nt was working on his G.E.D. She believedhe could turn his life around. T hur man stated she wanted the Defendant to come home. He len M orehead, the Defendant’s legal gra ndmother who raised him, expressed her hope that the Defend ant would

be able t o come hom

e soon. Morehead testified that the Defendant, if given the chance, could become a productive c itizen.

The Defend ant testif

ied that he had re adily admitted his involvement in the crimes to which he was pleading guilty. He maintained that he committed the crime s becaus e of stre ss and bec ause he was involved with drugs. The Def endant st ated tha t he had be

en in trouble of one kind or another since he got involved with drugs at the age of sixteen or seventeen. He also said that he sometimes gotinto trouble because someone else provoked it. The Defendant testified that he had served eight mont hs of a five-year sentence f or probation violations. He testified that since beco min g incarcerated, he had tried to “turn his life around” by enrolling in anger manage m ent clas se s. He stated that he was working towa rd h is G.E.D. in prison, having been expelled from Gallatin High School. The Defendant explained that he looked forw ardto sending a picture of himself graduating to his mother when he completed his G.E.D. He also confirmed that he had signed up for drug and alcohol classes , but had b een plac ed on a wa iting list. He te stified th at his experience in the penitentiary system made him want to change and return home to his family. When askedif he was sorry for everything he had done, the Defe ndant said, “Yes, I regret everything.”

The Defendant maintained that he never assaulted Fitts wi th a gun. He testified that she made the claim about the gun because she was angry that he had “messed” with a lot of women. He stated he had three children, ages four, two, and one, and that he did not want his children to grow up knowing he is in prison. He testified that after he stopped using drugs, he ga ined weight an d could think better than he could when he was on drugs. He also testified that he w anted an opportuni ty to become a productive citizen. The Defendant stated he was not married and that each of his three children had a different mother. He testif ied that n one of hischildren lived with him and that he had no t supporte d them fina ncially. He state d that he was e xpelled from Gallatin High School for “fights and all kind of things.” However, he claimed that blame was ca st on him, without investigation, for a number of altercations at school.
Regarding his employment history, the Defendant testified that he worked for a per iod of time at Duncan’s Diner as a dishwasher until the restaur ant closed in 1996 and that he then worked for William’s Disposal for five months in 1998. He testified that his only other means of support-5-

since leaving high school was selling drugs and that he supported himself by selling drugs from 1996 until his arrest, a period of three to four year s . The Defendant stated that he sold cocaine a nd marijuana, but he mainta ined that he did not s ell pills or

other dr ugs. He te stified th at he got h is drugs from two s ources a nd that he sold drugsto the same fifteen people during the entire period. The Defendant admitted that he knew that selling drugs could kill people, but he stated that at the time he was doing it, he cared only about the money. He stated that he made between $600 and $1,000 per week and that he had never r eported the income to the Internal Revenue Service

. Regarding his prior r eco rd, the Defendant admitted that in July 1998, he was convicted of driving on a suspended

license, possession of a 9-millimeter weapon with intent to go armed, and possession of drugs. He confirmed that he was place d on probation for those convictions. The Defendant

also confirmed that, while he w as st ill on probation, he pled guilty to shooting Mark Vincent in the leg on September 26, 1998. However, at the hearing, the Defe ndant claimed that he didnot have a weapon that day, that he did not knowhow the victim got s hot, and th at he ple d guilty only because

he “didn’ t know the

system” a

nd “just to ok anythin g to get out on the street as soon
as [he] could.” The Defendant expla ined, “If I knew better, I would have trie d to b eat it.” The Defendant

also admitted that on November 1, 1998, while still on probation, he was caught with 2.5 grams of cocaine in his pocke

t, and he s tated he

was also s moking mar

ijuana a t the time o f his arr

est. He confirmed that he pled guilty on March 15, 1999, after serving four months in jail, and received five years’ probation. Furthermore, he confirmed that two da ys later, on March 17, 1999, he violated his probation by testing positive for cocaine and marijuana. Finally, he confirmed that he was on probation when he committed the present offenses.

The Defendant testified regarding the assault on Sharkley a s follows: “I went over. I asked for her pager, like they said. We had words, you know. She struck me, so I just grabbed her by the face and pushe d her aw ay on the c ouch. She come up swinging. I pushed her down by her face again just to keep her from hitting me. And my ride came back and I ra n up out of the hou se and left.” The Def

endant a lso testif ied that he brief

ly saw Satonya Fitts on June 5, 1999. He confirmed that sh e was sixt

een yea rs old and eight month s pregna

nt at the ti me, but de

nied that t hey had a n altercation. The Defendant guessed that he had a nger ed her when he struck Sharkley. The Defendant

then testified that on August 31, 1999, he assaulted another former girlfriend, Bittis. He said, [S]he st opped on the street and she came to me. We talked f or a minute, and the conversation got heate d up so it turned into an argument. So I put my hands on her.

. . . I g rabbed h

er and sh e struggl ed away

from me a

nd thumped

a cigar ette and it burnedmy face. So, you know, I grabbe d her aga in and she swung and

hit me with her fist in my mouth. So I picked her up, but I didn’t body slam her. I just laid her down in the ditch and held herwhere s he couldn ’t swing a t me. And sh

e was just kicking me and I let her go in the ditch. . . . I did drop her but I never slammed her. Lastly, the Defendant testified that he knew he had a se vere problem, but maintained that he did not believe he was a menace to society.

II. ANALYSIS-6-

The Defendant pled guilty to one count of selling less than 0.5 grams of cocaine, a Class C felony, for which he was s entence d to ten ye ars inca rcera tion. The D efenda

nt also ple d guilty to three counts of

domestic a ssault, a

Class A misd

emeanor , and the t

rial cou rt senten ced him to eleven months and twenty-nine days for each of the assa ult convictions. The Defendant now challenges the lengt h and manner of service of his sentence, r aising three issues on appeal. First, the Defendant asserts that the trial cou rt erred by failing to apply mitigating factors and in its application of enhancement

factor s. In addi

tion, the D efenda

nt asser ts that the

tr ial court er

red in re fusing to consider alterna tives to inc arcer

ation in se

ntencing him.

When a criminal defendant challenges the length, range , or manner of service of a sentence , the reviewing court must conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are cor rect. Te nn. Code A

nn. § 40-3 5-401(d) . 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 c ircumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record fa ils to show such co nsideration, the review of the sentence is purely de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In maki ng its sentencing determination, the trial court, at the conclusion of the sentencing hearing, determines the range of sentence and the n de terminesthe spec ific sent ence and the prop

riety of sentenc ing alter

nati ves by considering (1) the evidence, if any, rec eived at the trial and the sentencing hearing, (2) the presentence re port, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and char acteristics of the cr

iminal con duct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statemen ts the defe ndant wishes to make in the defendant's behalf about sentencing, a nd (7) the potential for rehabilitation or treatment. Tenn. Code A nn. §§ 40- 35-210(a ), (b), - 103(5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumptive sentenc e to be imp osed by the trial cou rt for a C lass B, C, D or E f elony is the minimum with

in the applicable range unless there are enhancement or mitigating factor s presen t. Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating fac tors, the court must start at the presumptive sentence, enhance the sente nce as appropriate for the enhanc ement factors, and then reduce the sentence in the range a s appropriate for the mitigating factors. Id. § 40-35-210(e). The weight to be given each factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d at 123. Howev er, the s entence must be ad

equatel y supporte d by the record and comply wit

h th e purposes and principles of the 1989 Sentencing Reform Act. State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a

sentenc e, the tr

ial cour t must make

specific findings of

fact on the record supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any enhancement or

mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial court wis hes to enh ance a s entence , the cour t must state its reasons on the record. The purpose of-7-

recording the court’s reasoning is to gu arante e the pre paratio n of a pro

per rec ord for a

ppellate review. State v. Er

vin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). On appeal, the defendant bears the burde

n of showi ng the impr

opriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

A. LENGT

H OF SENTENCE

The Defend ant alleg es that the trial cou rt erre d becau se it refused to find any mitigating factors despite the evidence presented. The mitigating factors that the Defendant contends the trial court should h ave app lie d are not among the

statutori ly define d mitigatin g factor s set out in Tennessee Code Annotated § 40-35-113. Rather, they ar e mitigating factors that have been recognized

in other cases under a catch-all subsection which includes “[a ]ny other factor consistent with the purposes of this chapter.” Tenn. Code Ann. § 40-35-113(13).
Specifically, the Defendant alleges that the court should have found his “free” a dmission of guilt as a mitigating factor. The Defendant relies on State v. Butler , 900 S.W.2 d 305 (Te nn. Crim App. 1994), to support the proposition that the admission of guilt is a mitigating factor. In Butler , the d ef endant vo luntarily

came fo rward a nd confe ssed his gu

ilt, and the

court not ed that the case would nothave been solved if the defendant had not come f orward. Butler , 900 S.W.2 d at 314. T his
case is distingui shable f

rom Butler , becau se, in

the instant case, the Defendant’s guilt could still have been proven without the admission. Moreover, the Defendant did not confes s his gui lt until after he had been caught. The Defendant was a rrested on the drug charge when he sold the c ocaine to an undercover

agent. W

ith regard to the three assaults, the Defenda nt was not arrested until October 1999, fou r months a

fter the first two o ffense s and nea rly two mon

ths after the last a ssault.
Additionally, the record clearly shows that the trial court did consider the Defendant’s “free” admission of guilt

and rejected it as a mitigating factor. The court found that the D efendant refused to take re sponsibilit

y for his actions. At the sen tencing h earing, the Defe

ndant tes tified tha

t “stress and drugs” made him commit the crimes. He testified that Sharkley had attacked him first and that he had acted

in self-defense. He also testified that Bittis attacked him, and he stated that he dropped her in the ditch to prevent her from hitting him. In a

ddition, the Defe

ndant, wh ile pleading

guilty to the char

ge of dome stic assa

ult again st

Fitts, did no t plead gu

ilty to attempted first degree murder, the original c

harge, a nd still main

tains that he did not have an altercation with Fitts, even though he pled guilty to the reduced charge. Consequently, we find no error in the trial court’s finding that the Defendant’s admission of guilt was not a mitigating factor in this case.

The Defendant next alleges that the trial court err ed by not finding the D ef endant’s expression of remor se as a mitigating factor. Genuine, sincere remorse is a proper basis upon which to mitigate a defendant’s sentence. State v. William son , 919 S.W.2d 69, 83 (Tenn. Crim. App. 19 95). However, “the mere speaking of re morseful words or a genuflection in the direction o f
remorse will not earn an accused a sentence r eduction.” Id. The Defendant relies on State v. AntonioCoach , No. 02C01-9805-CC-00160, 1999 Tenn. Crim. App. LEXIS 279 (Tenn . Crim. App., Jackson, Mar. 25, 1999) , to suppor t the prop osition tha

t remorse is a mitigating factor in Tennessee criminal jurisprudence. While the Coach court did mention in passing that remorse may be used as-8-

a mitigating factor, it failed to conclude that the defendant qualified for a sentence redu ction bec ause of mere remorseful words. Id. at *8-9.
Nothing in the re cord sugg ests that t he D efendant’s statements demonstrated genuine
remorse. The Defendant’s expression of remorse was perfunctory and non-spe cific . At the sentencing hearing, he was asked, “Are you sorr y for what you’ve done?” The Defendant replied, “Yes, I regre

t everyt hing.” The Defe

ndant gav e the ove

rall impr ession to the court that he did not take responsibility for his actions and that his remorse was, therefore , not genuine.

The Defend ant also

alleges that the trial court er red in its a pplicatio n of enha

ncement factor s. The trial court in this case found that enhancement factor (1) applied. See Tenn. Code Ann. § 40- 35-114(1). That factor is a his tory of pr ior convi ctions and a histor y of criminal convictions or
c riminal behavior in addition to those necessary to establish the range. The cour t also found Tennessee Code Annotated § 40-35-114(8) applicable, namely, the Def endant’s previous history of unwillingness to comply with a sentence involving release into the community, as evidenced by the Defendant’s prior probation violations. Finally, the court found that Tennessee Code Annotated § 40-35-114(13) was applicable, in that the present felony was committed while the Def endant was
on probation. The court concluded that these three fa ctors jus tified enhancing the sentence to ten years. The weight to be given to both enhancement and mitigat i ng factors is left to the sound discretion of the sentencing judge. State v. Alexander , 957 S.W.2d 1, 5 (Ten n. Crim. App. 1997). The record supports the trial court’s finding that these three enhancement factors applied. The trial court prop erly note d that “the Defe ndant hasa previous history of unwilli ngness to c omply with sentencing involving release into the community. [The Defendant] has been twice on probation and picked up charges, [and] continues to use drugs while . . . on a community-base d sentence. Hejust doesn’t appear to take seriously his obligationto the criminal system.” The record also supports the trial court’s determination that the Defendant is “a dange r to society andsomeone from whom we needprotection.” We find no abuse of discretion by the trial cour t in enhancing the sentence to ten years, the maximum sentence within the appropriate range

.
B. ALTERNATIVE SENTENCING
Finally, the Defendant alleges the tri a l court e rred by r efusing t o conside r altern atives to incarceration

in sentencing the D efenda nt. Tennessee Code Annotated § 40-35-102(5) provides as follows: In recognition that state prison capacities and the fundsto build

and maint

ain them are limited, convicted felons 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 a

t rehabi litation sh all be giv en first priority regarding sentencing involving incarceration . . . . A defenda

nt who doe s n ot fall within this class of offenders “and who is an especially mitigated offender or standard offender convicted of a Class C, D, or

E felony i s presume d to be a f avorabl e candida te for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-1 02(6). Fu rthermor e, unlesssufficient evidence rebuts the presumption, “[t]he trial-9-

court must presume that a defendant sentenced to eight year s or less and not an offender for whom incarceration

is a priority is subject to alternative sentencing and that a sente nce other than incarceration

would result in successful rehabilitation . . . .” State v. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Cr im. App. 19 93); see also Tenn. Code Ann. § 40-35-303(a).
However, all offenders who meet the criteria ar e not entitled to relief; instead, sentencing issues must be determined by the facts and circumstances of e ach case. See State v. T aylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing Moss , 727 S.W.2d at 235). Even if a defendant is presume d to be a f

avorabl e candid ate for alternative sentencing under Tennessee Code Annotated § 40-35-1 02(6), th

e statutor y presump tion of an

alterna tive sente nce may b e overc ome if (A) [c]onfinement is necessary to protect society by restraining a defendant who has a long histor

y of criminal condu ct; (B) [c]onfinement is neces sar y to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deter r ence to others likely to commit similar offenses; or (C) [m]easu

res less r estricti ve than c onfineme nt have f requent ly or recent ly been applied unsuccessfully to the defendant . . . . Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the trial court should also consider Tennessee Code Annotated § 40-35-103( 5), which states, in pertinent part, “The potential or lack of po tential f

or the re habilitat ion or tre atment of

the defe ndant shou

ld be considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40- 35-103(5 ); see also State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).

The Defendant misstates the law in contending that a m

ultiple of fender convicte d of a Clas s C felony is presume d to be a f avorabl e candid ate for alternative sentencing options under Tennessee Code Annotate d § 40-35- 102(6). I t is, rathe r, the es pecially

mitigated

or standa rd offe nder who is presumed to be a favorable candidate for such sentencing considerations. See Tenn. Code Ann. § 40-30-102(6).
Furthermore, a t th e conclusion of the sentencing hearing, the trial court noted that the Defendant

was a twenty-one-year-old man who had two pr ior felony convictions and n umerous misdemeanors convictions, which concerned the court beca use the Defendant’s prior offenses involved drugs and weapons. The court also noted that the Defendant had

a poor social history and
a history of violence. The court determined that the Defendant was a danger to society a nd that he
was someone from whom society needed protection. The trial court found that the Defendant had not ass umed responsibility for his actions because he maintained that each of his a ssaults was, i n some measure , self-d

efense . We con clude tha

t the rec ord suppo

rts these findings by the tria l court.

The record

in this case indicates that the trial court adequately considered the enhance ment and mitigating factors as well as the underlying f acts. Our review also reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentenc e after having given due consideration and proper weight to the factors a nd principles set

out under the sentencing-10-

law, and that

the trial court’s findings of fact are adequately supported by the recor d. We find that the Defendant has not met his burden of showing any impropriety in the sentence imposed.
Accordingly, the sentence imposed by the trial court is AFFIRMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE