# FILED June 6, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9607-CR-00291 Appellee, ) ) Sumner County V. ) ) Honorable Jane Wheatc raft, Judge ) MICHAEL WAYNE ROBEY, ) (Sentencing) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: David Allen Doyl e Charles W. Burson District Public Defender Attorney General & Repor ter Pamela E. Beck Karen M. Yacuzzo Deputy Public Defender Assistant Attorney Gener al 117 East Main Street Criminal Justice Div ision Gallatin, TN 37066 450 James Robertson Parkwa y Nashville, TN 37243-0493 Lawrence Ray Whitley District Attorney General C. Wayne Hyatt Assistant District A

ttorney General 113 West Main Street Gallatin, TN 37066 OPINION FILED: ___________________ AFFIRMED PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Michael Wayne Robey, w as indicted on two counts of aggravated burgl ary and two counts of theft. A s part of a plea agreement, the two theft charges wer

e dismissed; and he pled guil ty to two counts of agg ravated burglary. The appellant was classified as a R

ange II, multiple offender and the state recommended concurrent senten ces of seven years at 35%. After a sentencing hearing, the trial court accepted the state's recommendation and sentenced the appell ant to seven years in the Department of Correction. He appeals c hallenging the manner of serv ice of his sentence. Upon revi ew, we affi rm. The appellant contends that the tri al court abused its discr etion in failing to grant him alternativ

e sentencing. He contends that proof adduced at the sentencing hearing shows that he has drug and alcohol problems which can best be treated in a community-bas ed alternative to incar

ceration. Appellate review of a sentencing issue is de novo . Tenn. Code Ann. § 40- 35-401(d) (1990). The appellant has the burden of establishing the sentence imposed by the trial cour t was erroneous. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In determining whether the appellant has carried this burd en, this Court must consider: (a) the evidence adduced at tri al and the sentencing hearing; (b) the present ence report; (c) the pri nciples of sentencing; (d) the arguments of counsel; (e) the nature and characteristic s of the offense; and (f) the appellant's potential or lack of potential for rehabil itation or treatment. Tenn. Code Ann. §§ 40-35-103(5), - 210(b) (1990). The appellant argues that he is entitled to presumptive s uitability for alternative sent encing because he committed a nonviolent of fense carrying a sentence of less than eight y ears. We disagree. Tenn. Code Ann. § 40-35- 102(6) provides this presumption only to those offenders classif ied as especially1 The record and t he presentenc

e report r

eveal that

the appellant has been previ ously convi

cted 25 ti mes for various of

fenses. Four

of these were felony c onvicti ons. Also,

it appear

s the appell

ant was arres

ted on several

other occasions an d the charges were dismisse

d . 2 The appellant

was on probati on when he committed the t wo instant o

ffenses . -3- mitigate d or stand ard off enders. The appe llant can be consid ered for alternat ive sentencing; but he is not enti tled to a presumption for alternative sentencing because he was classified as a Range II, multiple offender. The trial judge considere d several factors in sent encing the appellant to seven years incarc

eration. She considered the appe llant's extensive criminal history 1 and his admitted drug and alc ohol problem. Furthermore, s he found the appellant to be insincere in his desire for treatment. One of the counts of his probation revocation w arrant was his failur

e to report to ordered counsel ing. Finally, the trial

judge stated that she felt the appe llant was a threat to s ociety.
We find that mea sures less restrictive than confinement have frequently and recently been applied uns uccessfully to the appellant
. 2 He has received repeated alternative sentences for past convictions. Nothing in the record suggests that the trial judge made an erroneous decision. The appellan t has not carried his burden. H e has well earned his s tatus as a guest of the Commissioner of the Department of Cor rection. Appellant’s sentence is affirmed.

__________________________ PAUL G. SUMMERS, Ju dge-4- CONCUR:

__________________________ DAVID G. HAYES, Jud ge

__________________________ JERRY L. SMITH, Jud ge