FILED

February 9, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9612-CC-00446

 )

Appellee, ) BLOUNT COUNTY

 ) HON. D. KELLY THOMAS, JR., JUDGE

V. ) GREENE COUNTY

 ) HON. JAMES E. BECKNER, JUDGE

JAMES ROBERT LOVINGOOD, )

 ) (Theft under $500.00; Theft over $500.00)

Appellant. ) (Cases Consolidated for Appeal)

FOR THE APPELLANT: FOR THE APPELLEE:

MACK GARNER JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

419 High Street 

Maryville, TN 37804 PETER M. COUGHLAN 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

MICHAEL L. FLYNN

District Attorney General for Blount Co.

EDWARD P. BAILEY, JR. 

Assistant District Attorney General

363 Court Street

Maryville, TN 37804

GREG W. EICHELMAN

District Attorney General for Greene Co.

ERIC D. CHRISTIANSEN

Assistant District Attorney General

NationsBank Building

Greeneville, TN 37743 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Jam es Robert Lovingood, pled guilty to twelve counts of

theft of various grades and one count of alteration of a manufacturer’s serial

number in the Circuit Court of Blount County. By agreement, he was to receive

a ten (10) year sentence with the manner of service to be determined by the trial

court. The trial court ordered Defendant to serve the sentence in the Department

of Correction. Defendant also pled guilty to one count of theft over ten thousand

dollars ($10,000.00) in the Greene County Circuit Court. The agreed sentence

in that case was ten (10) years to run concurrent with the sentence for the Blount

County convictions. The State and the Defendant had previously agreed that the

Blount County trial court’s determination as to the manner of service of

Defendant’s sentence would also determine the manner of service of Defendant’s

sentence in Greene County. Therefore, the trial court in Greene County ordered

the ten (10) year sentence for the theft to be served in the Department of

Correction. The Defendant appealed the sentencing orders of both courts as of

right regarding the manner of service of his sentences, and his motion to

consolidate the appeals was granted by this court. The Defendant argues that

the trial courts erred in denying him placement into the Community Corrections

Program and requiring him to serve his sentence in the Department of Correction.

We affirm the judgments of the trial courts.

When an accused challenges the length, range or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.
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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).

In conducting a de novo review of a sentence, this court must consider: 

(a) the evidence, if any, received at trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. § 40-35-102, -103, and

-210; see State v. Smith, 735 S.W .2d 859, 863 (Tenn. Crim. App. 1987). 

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may not

modify the sentence even if we would have preferred a different result. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

At the sentencing hearing in Blount County, the Defendant testified on his

own behalf. He was thirty-seven (37) years old and lived in East Knoxville. At

that time, Defendant was doing contract work for a real estate firm in Alcoa. In

1983, Defendant started using the narcotic Dilaudid. To support his drug habit,

Defendant committed many crimes, including burglary, possession of burglary
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tools and writing worthless checks, for which he received a sentence of ten (10)

years in Blount County. Defendant served one (1) year in jail, then served the

remainder of the sentence on probation. He admitted that during his probationary

period he used Dilaudid and had to go through drug treatment at Peninsula

Lighthouse. Defendant moved to Chattanooga in 1989, but when he returned to

the Blount County area in 1994 he again became involved with Dilaudid. His

drug habit became so expensive that he returned to a group of individuals he

knew were transporting stolen merchandise to Greene County. Defendant’s role

in the crime ring was to steal and to transport stolen farm equipment from Knox

County to Greene County, for which he received a cash commission. This

continued to occur over a period of three (3) to four (4) months. As a result,

Defendant also had the charges pending in Greene County. While there were

numerous charges against Defendant, he admitted that there were more items

stolen than he had been charged with and these stolen items had not been

recovered by the police.

The Defendant again went into drug rehabilitation treatment in October

1995. He was continuing to attend an outpatient program for intensive group

therapy as well as Alcoholics Anonymous each week. While he was not earning

much money, Defendant stated that he would be willing to make restitution

payments. At the time of the sentencing hearing, Defendant was enrolled in a

real estate school and was planning to obtain his real estate license. The

Defendant submitted various letters of recommendation on his behalf, from

various friends and em ployers. In addition, his current employer testified in

support of the Defendant. 
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The Community Corrections Act allows certain eligible offenders to

participate in community-based alternatives to incarceration. Tenn. Code Ann.

§ 40-36-103. A defendant must first be a suitable candidate for alternative

sentencing. If so, a defendant is then eligible for participation in a community

corrections program if he also satisfies several minimum eligibility criteria set

forth at Tennessee Code Annotated section 40-36-106(a).

However, even though an offender meets the requirements of eligibility, the

Act does not provide that the offender is automatically entitled to such relief.

State v. Grandberry, 803 S.W .2d 706, 707 (Tenn. Crim. App. 1990); State v.

Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Rather, the statute

provides that the criteria shall be interpreted as a minimum standard to guide a

trial court’s determination of whether that offender is eligible for community

corrections. Tenn. Code Ann. § 40-36-106(d).

Based upon the evidence and the record, the trial court found that

Defendant was eligible for the Community Corrections program for his ten (10)

year sentence, but determined that he was not a suitable candidate. The trial

court based its decision that Defendant was “to be given first priority regarding

[a] sentence involving incarceration because [Defendant] clearly ha[s] a criminal

history that shows a disregard for the laws and morals of society and failures of

past effort at rehabilitation.” The trial court found that confinement was

necessary to avoid depreciating the seriousness of the offense and was

particularly suited to provide an effective deterrent. 
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Furthermore, the trial court found that Community Corrections was not

appropriate due to the “sheer magnitude of the number of cases and the

seriousness of the cases involved when [Defendant was] 24 and involved now.”

Trial court noted that there were over twenty (20) serious felonies which involved

two (2) different counties at the time Defendant was twenty-four (24) years old,

and now there are ten (10) serious felonies pending in Blount, Knox, and Greene

counties. When speaking to the numerosity of the charges, the trial court noted

that 

You know, it’s not just breaking the law. It’s doing it to a degree that

spans county lines, involves thousands and thousands of dollars

worth of money. And I don’t think the considerations about the

Community Corrections Program and the likelihood of your

rehabilitation, your attitude about how you went back into drug

usage, weigh that against the danger of your comm itting more

crimes and the magnitude of your criminal involvement over the

years, it just doesn’t weigh out in your favor. I’m sorry, but this is a

record that you’ve amassed and this is what you’ve done. And I

think the only appropriate sentence is the ten-year sentence as

agreed and serving that sentence in the Department of Corrections.

Defendant argues that since the trial court found the Defendant to be

eligible for placem ent in the Community Corrections program, then it erred in

relying on the sheer number of Defendant’s crimes and his poor amenability to

rehabilitation in denying Community Corrections. Defendant infers that if he is

eligible for Community Corrections, then he is guaranteed to be placed in that

program. In State v. Cummings, 868 S.W.2d 661, 668 (Tenn. Crim. App. 1992),

the court held that “mere eligibility, of course, does not end the inquiry” in

determining whether Community Corrections is an appropriate sentence for a

defendant. Rather, the court is obliged to consider the defendant’s criminal

history and his potential for rehabilitation or treatment. Id., citing State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). Recently, a panel of this court, in a de novo

review of an alternative sentencing issue, was guided by the appellant’s
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considerable potentialfor rehabilitation, unblemished criminal record and remorse

for unlawful conduct in determining whether the appellant was a proper candidate

for the Com munity Corrections program. State v. Millsaps, 920 S.W.2d 267, 272

(Tenn. Crim. App. 1995). 

Upon our de novo review, we conclude that the trial court was correct in its

findings and that the Defendant should serve a ten (10) year sentence in the

Department of Correction. While eligible for Community Corrections under the

terms of Tennessee Code Annotated section 40-36-106, the eligibility criteria are

the minimum standards. The trial court properly considered the Defendant’s

extensive criminal history, including the series of thefts spanning four (4) months

and several counties in 1995 to support his drug habit. While Defendant has

attempted to overcome his addiction to Diluadid, these most recent crimes are

reminiscent of his past behavior. In 1983, the Defendant was addicted to

Diluadid and committed several crimes in order to support his drug habit,

including forgery, possession of burglary tools, concealing stolen property and

second degree burglary. Furthermore, Defendant had over twenty (20)

convictions for writing worthless checks. Defendant admitted during his

testimony at the sentencing hearing that he used drugs during his probation for

the 1983 offenses. 

By his own admission, Defendant has a recurring drug problem. The trial

court considered this problem in finding that he was unsuitable for the Community

Corrections program. Defendant’s potential for rehabilitation is obviously lacking.

And while Defendant may have expressed some remorse for his conduct at the

sentencing hearing, he stated that he was not being prosecuted for many
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additional thefts which he committed. While the Defendant would have us to

compare his suitability for Community Corrections as akin to the determinations

in Cummings and Millsaps, the Defendant in the case sub judice has committed

many more crimes than the defendant in Cummings and has an extensive

criminal record unlike the defendant in Millsaps.

The trial court was within its discretion in finding Defendant unsuitable for

Community Corrections, and we affirm the judgments of the trial courts.

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

DAVID H. WELLES, Judge

___________________________________

DAVID G. HAYES, Judge