# FILED February 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1997 STATE OF TENNESSEE, ) C.C.A.NO. 03C01-9612-CC-00446 ) Appellee, ) BLOUNT COUNTY

) HON. D.KELLY T HOMAS, JR.,JUDGE V. ) GREENE COUNTY ) HON.JAMES E . BECKN ER, J UDGE JAMES ROBERT L OVINGOOD, ) ) ( Theft under $500.00; Thef t over $500.00 ) Appe llant. ) (Cases Cons olidated for Appe al)
FOR THE APPELLANT : FOR THE APPELLEE : MACK GARNER JOHN KNOX WALKUP District Public Defe nder Attorney General& Reporter 419 H igh Stree t Maryvil le, TN 37804 PETER M. COUGHLA N Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 MICHAEL L . FLYNN Distri ct Attor ney General for Blount Co. EDW ARD P . BAILEY , JR. Assistant Distri ct Attor ney General 363 Court Street Maryvil le, TN 37804 GREG W. EICH ELM AN Distri ct Attor ney General for Greene Co. ERIC D. CHRI STIANSEN Assistant Distri ct Attor ney General NationsBank Buil ding Greenevill e, TN 37743 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defen dant, Jam es Rob ert Loving ood, pled guilty to twelve counts of theft of vario u s grades and one count of alter ation of a

manufacturer’ s serial number in the Cir

cuit Court

of Blount Count

y. By agreement, he was to receive
a ten (10) year sentence wi th the manner of service to be determined by the trial court. The trial court ordered Defen dant to serve the sentence in the Depart ment of Correc tion. Defendant also pl ed guilt y to one count of t heft over ten thousand dollars ($10,000.00)in the G reene Coun ty Circu it Court. The agreed sentence in that case was ten (10) years to run concur rent wit h the sentence f or the Blount Coun ty conviction s. The S tate and the Defendant had previously agreed that the B lountCounty tri al court’ s determinati on as to the manner of service of Def enda nt’s sente nce w ould a lso de termin e the m anne r of serv ic e of Defen dant’ s sentence in Greene C ounty. Therefore, t he trialcourt in Greene County ordered the ten (10) yea r sentence for the thef t to be serv

ed in the Depart ment of Correction. The De fendant app ealed the sen tencing orders of both cour ts as of ri ght reg arding th e man ner of se rvice of his se ntence s, and his motion to
conso lidate the app eals wa s grante d by this co urt. The D efe n dant argues that the trial cou rts erre d in denying him pl acement into t he Community Correcti ons Program and re quiring him to serve his s entence in t he Department of Corr ection. We affirm the judgments of the trialcourts.

When an accused challenges t he length, range or the manner of service of a sentence, t his court has a duty to

conduct a de novo review of the sentence with a presumption t hat the determinations made by the t rial court are correct.-3-

Tenn. Code A nn. § 40-35-4 01(d). This pre sumption is “c onditi oned upon the affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant facts and circum stances.” State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a senten ce, this cou rt m ust cons ider: (a) the evidence, if any, received at trialand the sen tencing h earing; ( b) the presentence report; (c) the principl es of sentenc ing an d argum ents as to sentencing alternat ives; (d) the natur e and characteristi cs of the criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement thatthe defendant made on his own be half; a nd (g) the potential o r lack of potentialfor rehab ilitation or treatm ent. Tenn . Code Ann. § 40-35-102, - 103, and -210; see State v. S mith , 735 S.W .2d 859 , 863 (T enn. C rim. App . 1987).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having given due consider ation and properweight to t he factors and principl es set out under the sentencing l aw, and made finding s of fact adequately su pported by t he record, t hen we may no t modify the sentence even if we wou ld have p referred a different res ult. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

At the se ntenc ing he aring in Blount Cou nty, the De fenda nt testifie d on h is
own behalf. He was thirt y-seven (37)years old and lived i n East Kn oxvi lle . At thattime, Defend ant was do ing contract wo rk for a real estate firm in Alco a. In 1983, Defe ndan t started using the na rcotic Dilaudid . To sup port his dru g habit, D efendan t comm itted many crim es, including burg lary, possession of burglary-4-

tools and writing worthl ess checks, for which hereceived a s entence of ten (10) years i n Blount County. Defendant served one (1) year in jai l, then s erved the remainderof the sentence on probati on. He admitted thatduring his proba tionary period he used Dilaudi d a nd had to go th rough drug tre atme nt at Pe ninsu la Lighthouse. Defendant moved to Chatt anooga in 1989, but

when he returned to the Blount County ar ea in 1994 he again be came involved wi th Dilau did . His drug habit becam e so expen sive that he re turned to a group of i ndividual s he knew were transporting stolen merchandise to Greene County. Defen dant’s role in the crime ri ng was to stealand to transpor t stolen farm equipment f rom Knox Coun ty to Greene Coun ty, f or wh ich he rec eived a cash com miss ion. Th is continued to occur o ver a pe rio d of three (3) to four (4 ) month s. As a res ult, Defendant also had the c harges pe nding in Gre ene C ounty. W hile there were
n umerous charg es ag ainst D efend ant, he adm itted tha t there w ere m ore it em s stolen than he had been c harged with and these stol en items had not been recovered by t he police.

The Defen dant a gain went i nto drug rehabi litat ion treat ment in October 1995. He was continui ng to atten d an outpatien t program for intensi ve group therapy as well as Alcoholics Anonymous each week. Wh ile he was not earni ng much mon ey, De fenda nt state d that h e wou ld be w illi ng t o ma ke restit ution payments. At the ti me of the sentencing hearing, Defendant was enroll ed in a real estate sc hool an d was p lanning to obtain his real esta te license
. The Defendant submitted various let ters of r

ecommendation on his beha l f, fr om variousfriends and em ploye rs. I n add ition, his curren t emp loyer te stified in suppo rt of the De fendan t.-5- The Com mun ity Corre ctio ns Act allows ce rtain eligible o ffenders to particip ate in community-based alternat ives to i ncarcerati on. Tenn. Code Ann. § 40-36-1 03. A de fendan t must first b e a suitable can didate for alternative sentencing. If so, a defenda nt is then eligib le for participa tion in a co mm unity correcti ons program if he al so sat isfies s everal mini mum eligibil ity criteri a set forth at Tenne ssee Co de Anno tated section 40 -36-106(a).

Howeve r, even though an of fender meet s the requiremen ts of el igibil ity, the Act does not provi de thatt he offen der is auto matica lly entitled to su ch relief. State v. Grandbe rry , 803 S.W .2d 706 , 707 (T enn. C rim. App . 1990); S tate v
. Taylor , 7 44 S.W .2d 919 , 922 (T enn. C rim. App . 1987). R ather, the statute provides t hat the criteria shallbe interpr eted as a minimum standard to gui de a trialcourt’s determinati on o f wh ether tha t offender is eligible for co mm unity corrections. Te nn. Code Ann. § 40-3 6-106(d).

Based upon the evide nce and the record, the tri al co urt found t hat Defendant wa s eligi ble for t he Community Correcti ons program for hi s ten (10) yearsentence, but

de termined that he was not a suitabl e candidate. The trial court base d its de cisio n t hat Defendant was “ to be given f irst priorit y regardi ng [a] sentence involving i ncarceration because [Defendant]clearly ha[s] a cr iminal history that s hows a dis regard for the l aws and morals of soci ety and fai lures of past effort

at rehabil itati on.” The tri al court f ound thatconfinem ent was
necessa ry to avoid depre cia tin g the serio usness of the of fense and was particularly s uited to pro vide an e ffective dete rrent.-6- Furthermore, the trialcourt found that Community Corrections was n ot appro priate due to the “sheer m agnitud e of the nu mber o f cases a nd th e seriousness of the cases invol ved when [D efenda nt was] 24 and invo lved now .” Trial court noted tha t there were over twenty (20) ser ious felonies which involved two (2) dif

fer ent cou nti es a t t he t ime Defendant was twent y-four (24) years ol d, and now there are ten (10) seriou s felon ies pe nding in Blount, Knox, and Greene counties. When speaking to t he numerosity of the charges, the trialcourt noted that You know , it’s not jus t break ing the law. It’s doing it to a degree th at spans coun t y lines, involves thousan ds and thou sands of do llars worth of mone y. A nd I don’t think t he considerat ions about t he Com munity Correctio ns Program and the li kelihood of your reha b ilit ation, your att itude about how you went back i nto drug usage , wei gh that agains t the danger o f your comm itting more crimes and th e ma gnit ude of your cri minal involvement over th e years, it just doesn’t weigh ou t in your favor. I’m sor ry, but th is is a re cord that you’ve amas sed an d this is wh at you’ve d one. A nd I think the only ap propriate senten ce is the te n-year se nte nc e as agreed and serving that sentence i n the Department of Corrections. Defendant argue s t hat since t he trialcourt found the Defendant to be el igible for placem ent in the C omm unity Cor rections p rogram , then it erred i n relyi ng o n the she er num ber of De fendan t’s crimes and his p oor am enability to rehabili tation in den ying C omm unity C orrect ions. D efend ant infe rs that if h e is eligible for Community Corrections, then h e is guaranteed to be placed i n that pro gra m. In State v. Cummings , 868 S.W.2d 661, 668 (Tenn. Crim. App . 1992), the court heldthat “mere el igibil ity, of course, does not end the inquiry” in determini ng wh ether Com munity Co rrections is an app ropriate senten ce for a defend ant. Rather, the court i s o bliged t o consider t he defendant’ s criminal history and his potent ial for rehabilitation or treatm ent. Id ., citing State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Recentl y, a panel of this court, i n a de novo review of an alternative sentencing i ssue, was gu ided by the a ppella nt’s-7-

cons iderab le potential for rehabilitation , unblemished criminal recor d and remors e forunlawful conduct in determining whether the appel lantwas a p roper ca ndidate forthe Com munity C orrection s progra m. State v. Millsaps , 920 S.W.2d 267, 272 (Tenn . Crim. A pp. 199 5).
Upon our de novo review, we conclude that the tri al court was

correct in its findings and that the Defendant should se rve a ten (1 0) year sentence in the Department of Correcti on. While eli gible fo r Community Correct ions under t he terms of Tennessee Code Annotated secti on 40-36-106 , the eligibility criteria are the mini mum stand ards. T he trial c ourt pr operly cons idered the De fenda nt’s extensive criminal history , incl uding the series of thefts s panning four (4) months and seve ral count ies i n 1995 to su pport his drug habi t. Whi le De fen dant has attempted to overc ome his addiction to Dilua did, these mo st recent crimes are reminiscent

of his pastb ehavior. In 1 983, the Defen dant wa s addicte d to Diluad id and committed several crimes in order to su pport hi s drug h abit, inc luding forgery, po ssessio n of burg lary tools, co ncealing stolen pro perty an d second degree burglary. F urtherm ore, De fendan t h ad o ver twenty (20) convic tio ns forwriting w orthles s che cks. D efend ant ad mitted during his testimony

at the sentencing heari ng thathe used drugs duri ng his probat ion for the 198 3 offense s.
By his own admissi on, Defendant hasa recurrin g drug p roblem
. The trial court considered this probl em in findi ng that he was unsui table for the Com munity Corre ctio ns pro gra m. Defendant’s potential f or rehabil itati on is obvi ously lac king. And while Defendant may have expr essed some remorse for hi s conduct at t he sentencing hearing, he st ated that he was not being pr osecuted for many-8-

additionalthefts whi ch he commi tted. W hile the D efenda nt would have us to compa re his suitabilit

y for Community Correcti ons as akin to t he determinati ons in Cummings and Millsaps , the Defendant in the case sub judice has committed many more crimes than the defendant in Cummings and has a n extensive criminal record unli ke the defendant in Millsaps
.

The trial cou rt was w ithin its di scretion in fi nding Defendant unsu itable f or Commun ity Correcti ons, and we affirm the judgments of the t rial courts.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ DAVID G. HAYES, Judge