# FILED
December 1, 1999 Cecil CROWS ON, Jr. Appellate Court Clerk IN THE COURT OF CRIM INAL APPEALS OF

TENNESSEE AT KNOXVILLE NOVEMBER SESSIONS, 1999
STATE OF TENNESSEE ) ) APPELLEE ) ) VS. ) C.C.A. NO. 03C01-9908-CR-00293 ) CAMPBELL CO. CRIMINAL NO. 9653 MACARTHUR COFF

EY ) HON. E. SHAYNE SE XTON, JUDGE

) APPELLANT )

FOR THE APPELLA

NT: FOR THE APPELLEE: JULIE A. RICE PAUL G. SUMMERS P.O. Box 426 Attorney General & Reporter Knoxville, Tennessee 37901 CLINTON J. MORGAN CHARLES HERMAN 425 Fifth Avenue North P.O. Box 337 Nashville, Tennessee 37243 Jacksboro, Tennessee 37757 MIKE RIPLEY Assistant District Attorney P.O. Box 326 Jacksboro, Tennessee 37757

OPINION FILED:____________________ AFFIRMED: JOE H. WALKER, Sp. JUDGE



### OPINION Appellant appeals the judgment of the trial court with regard to the manner of service of sentence.
Appellant entered

a plea of guilty to thre

e counts of burglary of a vehicle, and onecount of theft of over $1,000.00, with agreed sentences of two years as a Range I offender

for each of the three auto-burglary charges, and four years as a Range I offender for the D felony of theft, with the fur ther agreeme

nt that the sentenc

es would run concurren tly. The trial court dete

rmined the mann

er of service of his s

entences. The trial court ordered incarceration, and appellant appeals, assigning as error whether the trial court erred by failing to sentence appellant to an alternate sentence of split confinement.
A review of the record reveals that the defendant was granted bond pending appeal to this court. That whil e on bond he was arreste d and charged on May 26, 1999, with a felony offense of burglary , and misdemeano

r theft. On July 15, 199 9, appellant was again arrested and char

ged with the offenses of dom estic violence, r

esisting arrest,

and evading arrest. The tria

l court revoked bond pe nding appeal.
The defendant entered a plea of guilty to the charges in this case on June 19, 1998. He was arrested June 29, 1998, and charged with two counts of assault. He was arrested June 30, 1998, and char ged with cultivating m

arijuana on his prem

ises, and domestic violence by assault. At the sentencing h

earing the court he

ard testimony fro

m a deputy sheriff about the charges on which appellant was accused after the entry of the plea. The court also heard testimony from the officer that prepared the presentence report, and the report was submitted by agreement. The report reveals that appellant has other misdemeanor convictions in 1995, 1993, and 1990. It showed that appellant was unemployed, currently used alcohol, and used marijuana within four m onths. The burden of establishing suitability for probat

ion rests with the per

son seeking probation. T.C.A. 40

-35-303(b). The te

stimony heard by th

e trial court did not

show any reason for appellant to receive probation. Appellant did not offer any proof. The trial court made its de

cision on the proof pre

sented by the state

and the pre-senten

ce report. In State v. Galloway, 696 S.W.2d 364 (Tenn.Crim.App. 1985), the court found that inasmuch as the defendant had failed to testify or offer any proof, he failed to carry his burden of proving his worthiness for probation. See, State v. Bell, 832 S.W.2d 583 (Tenn.C rim.App. 1991). When considering the issue of probation, the trial court as well as this Court considers the nature and circumstances of the offense or offenses, the defendant’s criminal record, the defendant’s social history, the defendant’s present mental and physicalcondition, the deterrent effect upon other criminal activity, and the likelihood that

probation will serve both the public and the defendant’s best interests. State v. Biggs , 769 S.W.2d 506 (Tenn.Crim.App. 1988); T.C.A. 40-35-303.

The trial court st

ated that appellant was

not suitable for probat

ion, finding that the previous history of appe llant indicated that he

could not abide by the t erms of probation. The conduct of appellant since the guilty plea was entered further indicated his inability to abide by probation. The trial court further found that he was not suitable for community corrections, and determined his sentence should be served with the Department of Corrections. This court finds that the record on appeal is sufficient to determine that the trial court did not err in sentencing the defendant to prison rather than probation or community cor

rections. A felon’s rehabilitation pote ntial and the risk of rep eating criminal conduct are fundamental in determining whether he is suited for alternate sentencing. T.C.A. 40-35-103(5). The conduct of appellant both before entry of his guilty plea and after entry of his guilty plea demonstrated poor potential for rehabilitation, which is sufficient reason to justify a term of incarceration rather than probation or alternative sentencing. State v. Zeolia , 928 S.W.2d 457 (Tenn.Crim.App. 1996). This court can not say

that the trial cour

t abused it’s discre

tion in denying appellant probation, or alternate sentencing.

The judgment of the

trial court is affirm

ed.

_____________________________ JOE H. WALKER, Sp. JUDGE

CONCUR:

________________________ DAVID G. HAYES, JUDGE

________________________ ALAN E. GLENN, JUD GEIN THE COURT OF CRIM INAL APPEALS OF

TENNESSEE AT KNOXVILLE NOVEMBER SESSIONS, 1999 STATE OF TENNESSEE ) ) APPELLEE ) ) VS. ) C.C.A. NO. 03C01-9908-CR-00293 ) CAMPBELL CO. CRIMINAL NO. 9653 MACARTHUR COFF

EY ) HON. E. SHAYNE SE XTON, JUDGE

) APPELLANT )

JUDGMENT Came the appellant, Macarthur Coffey by counsel, and the state, by the Attorney General, and this case was heard on the record on appeal from the Criminal Court of Campbell County; a

nd upon consideration the reof, this Court is o

f the opinion that ther

e is no reversible error in the judgment of the trial court.
Our opini on is hereb y incorpor ated in th is judgmen t as if set o ut verbati m.It is, therefore, ordered and adjudged by this Court that the judgment of the trial

court is AFFIRMED, and the case is remanded to the Criminal Court of Campbell County for execu tion of the judgment o

f that cour

t and for co

llection o f costs acc

rued below.
It appears that appellant is indigent. Costs of appeal will be paid by the State of Tennessee.

PER CURIAM DAVID G. HAYES, JUDGE ALAN E. GLENN, JUDGE JOE H. WALKER, III, Sp. JUDGE