1 IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON OCTOBER 1999 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. W1999-01760-CCA-R3-CD Appellee, ) ) Shelby County v. ) ) Honorable Carol yn Wade B lackett, Judge CARLOS A. CURRY, ) ) (Sentencing) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : MARK A. MESLER PAUL G. SUMMERS Ballin, Ballin & Fishman Attorney General & Repor ter 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103 J. ROSS DYER Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General MICHAEL H. LEAVITT Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FILED: ____________________________

______________ AFFIRMED ALAN E. GLENN, JUDGE



### O P I N I O N
The defendant, CarlosA. Curry, was i ndicted by the Shelby County Gra nd Jury and charged with evading arr est in a motor vehicle and poss ession of a handgun in a public 

# FILED
December 16, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk2

place. Pursuant to a negotiated plea agreement, he pleaded guilty to both of the s e offenses, receiving sentences of six months for evading arrest and thirty day s for possession of a handgun in a public place. The trial court denied his petition to suspend these sentences, a

decision which he

timely appealed. Based upon our review, we affirm the judgment of the trial court

.
FACTS During the hearing on the defendant’s petition fo r suspensi o n of sentence, it was made clear that there was s ubs tant ial variance betwee n the defendant’s version of the incidentwhich resulted in his arres t and that of the police officers. Acc ording to the assistant district attorney r

epresenting the State

of Tennessee, the officers reported that the following occurr

ed [Questions by General Le avitt]:

At a high rate of speed. Youturned onto I-40. The officers initiated the emergency equipment an d siren. You accelerated to approximately eig hty miles an hour, then sl owed to t hir ty miles an hour and pulled to the emergency lane but still did not stop. You continued for approximately one mile nearly causing an accident at Perkins on the entrance ramp. Theyobserved Mr. Austin throw ing baggies from the passenger

window, and observed you and Mr. Austin making movements and passing a sil ver object back and forth. When finally pulled to a stop and both of you bai led out. Defendant was apprehended af ter a short chase. The defendant while ru nning pulled the pistol from h is waistband and threw it to the gro und. The w eapon was loaded with one in the chamber and five in the magazine. You were arrested. Th e gu n was recovered. And they wentback and they foun d two plastic bags with marijuana residue, one in the vehicle and one on the groundbeside the vehicle. Both you and Mr. Austin said that the gun belonged to the other person.
In contrast, the defendant gave the following explanation of the incident:

Me and Jack, we left the house and we got off on Perkins. The undercover cop he was trailing us behind. He pulled us over at the Perkins ex

it. I got out, went to the

car. I came back to

my car. Then at the time I found out that Jack had a pistol. So I knew that I’m a felon already on a pistol char ge, so I told him, I said you are going to take thatcharge and he said no, he’s not going to take the charge. So I jumped out of the c ar and I ran. According to the presentence report, the defendant was 25 years old, married, w

ith two children, and employed for approximately the past six months as a forklift driver. He3

was a gra duate of By halia, Mississippi, High School. He had tw o prior convictions.In 1994, he was convicted of attempt to commit a felony, for which he had received a twoyear sentence at the Shelby County Correctional

Center. He was

convic ted in 19 94 of a “weaponsoffense” and sentenced to a six months sente nce. He did not seek pro bation forthese sentences which w ere served concurrentl

y. According to the d efendant, he was attending a heating and air conditioning school at the time of the hearing.
In denying the petition for suspension of sentence, the trial court stated: Mr. Curry, wo uld yo u please stand up. The Court has looked at your criminal his tory, and you do have several other offenses that you’ve been conv icted of. In addition to that, the Court does not believe that you have been very candi d with the Court in terms of what exactl y happened out there, whether or not it was your gun or someone else’s gun, what you were exactly doing. It seems very unlikely

that undercover cops

would just pull over a car for no reason. And it seems even more unlikely that you would take the gun out of your car and run with it. I don’t know where you th ought you were runni ng to and how you t houghtyou could outrun a car. But that’s neither her e no r there. You should know that under stand that today is your day in Court. And today was your day to establish to the C ourt that you were a worthy

probationary candidate, which you didn’t do.

In response to the request of defense c ounsel tha t the de fendant be allowed to serve his sentence on the w eekends, the court stated: The o nly reaso n why I won’t is because I don’t be lieve wha t he sai d, not for one minute, and I don’t think you did either. And that was basically based upon the fact that it was not only you, Mr. Me

sler, but Mr. Leavitt didn’t be lieve it, I didn’t believe it , and tod ay was his da y. I am not going to sit here -- I don’t think it is my role to sit here a nd pull the truth out of people. I’ ve done it a couple o

f times alre ady today, but I’m not g oing to do it any more. S o the answer to that is no.

ANAL YSIS Since the defendant has challenged the manner of service of

his sente nce, we must conduct a de novo

review, presuming

that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). The burden i s on the defendant to show that confinement is improper. State v. Bult , 989 S.W .2d 730, 734 (Tenn. Crim. App. 1998), perm
. app
. denied (Tenn. 1999). Even if we applied a presumption favoring prob ation, as the defendant urges, hewould not be helped. Here , he has two prior conv ictions, oneof which was a felony, for whi ch he serve d concurrent sentences at the S helby County4

Correctional Center. Additionally, we n ote that his version of the in cident which resulted in his arrest was v

astly different from that set out by the arresting officers. The comments bythe tri al cour

t made it

clear t hat the d efendant’ s vers ion of t he events was not believable. The court specifically t old the defend ant that his petition for suspended sentence was being denied because of his prior convi ctions and his lack of candor while testifying during the petition hearing.

In denying probation, it is clear that the trial court properly considered the relevant factors , i ncluding the defendant’s crimi nal record. State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. Ap p. 1995); State v. B oyd , 925 S.W.2d 237, 24 4 (Tenn. Crim. App. 1995). Addition ally, it was

proper for the c

ourt to c onsider the defen dant’s l ack of t ruthful ness. “The defendant’s truthfulness at a trial or sentencing hearing is a factor th at maybe considered. A trial judge may deny probationon this ground.” State v. Dykes , 803 S.W.2d 250, 259-260 (Tenn. Crim. App. 1990).

The defendant has urged that we should ap ply the sentencing cons iderations of Tenn. Code Ann. § 40-35-102(6) to this matter and consider alternative sentencing opt ions. However, even following such an application, the

defendant’s case would fail because of his prior record of convictions and lack of candor:

The trial court denied alter native sentencing based up o n th e defendant’s lengthy h istory of criminal behavior, his unsuccessful completion of less restrictive measures, and his lackof truthfulness. See T.C.A. § 40-35-103 (1 )(A) and (C); State v. Gennoe , 851 S.W.2d 833, 837 (Ten n. Crim. App. 1992) (lack

of candor may be considered in denying alternat ive sentencing ). Th ese are all proper consid erations in the determination of alternative sentencing and reflect n egatively on the defendant’s potential for rehabil itation. We agree with the trial court’s determinations and affirm the trial court’s de nial of alternative sentencing. State v. Anderson , 985 S.W.2d 9, 21 (Te nn. Crim. App. 1997).
Applying the holding in Anderson to this matter, we likewise agree with the decision of the trial court that the defendant was not an appropriate cand idate for alternat ive sentencing.

CONCLUSION Based upon the foregoing authoriti es and reasoning, we affirm the judgment of the trial court.5 _____________________________________ ALAN E. GLENN, JUDGE

CONCUR:

__________________________________ JOHN H. PEAY, JUDG E

__________________________________ NORMA McGEE OGLE, JUD GE