FILED

March 27, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9705-CC-00185

)

Appellee, )

 ) HARDEMAN COUNTY

V. ) 

)

) HON. JON KERRY BLACKWOOD,

BEVELYN BAILEY, ) JUDGE 

)

Appellant. ) (THEFT)

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP 

113 North Court Square Attorney General & Reporter

P.O. Box 26 

Waverly, TN 37185 JANIS L. TURNER 

(ON APPEAL ONLY) Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

GARY F. ANTRICAN ELIZABETH T. RICE 

District Public Defender District Attorney General 

JEANNIE KAESS JERRY W. NORWOOD

Assistant Public Defender Assistant District Attorney General

P.O. Box 700 Hardeman County Courthouse

Somerville, TN 38068 Bolivar, TN 38008

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE

OPINION
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The Defendant, Bevelyn Bailey, appeals as of right the sentence imposed by

the trial court upon his conviction of theft. Defendant was indicted by the Hardeman

County Grand Jury of burglary, theft and criminal impersonation. Defendant pled

guilty to theft of property worth between $1,000 and $10,000 in violation of

Tennessee Code Annotated section 39-14-103. The trial court sentenced Defendant

to eight (8) years incarceration as a Range II Multiple Offender and denied

Defendant’s request for alternative sentencing. The sentence was ordered to run

consecutively to a prior fifteen (15) year sentence imposed in Fayette County, for

which he was on parole at the time of the present offense. In this appeal, Defendant

argues that the trial court erred in sentencing him to eight (8) years incarceration and

in finding that he was not a favorable candidate for alternative sentencing of split

confinement or Community Corrections. We affirm the judgment of the trial court.

Defendant testified on his own behalf at the sentencing hearing. He testified

that in the past he was “just wild” but that he “grew up mentally” while he was in

prison. He stated that he obtained a job when he was on parole, but became

addicted to crack cocaine in 1995. Defendant testified that this addiction to crack

cocaine caused him to skip work and to ultimately quit his job. He further testified

he would not have comm itted the present offense of theft if he had not been on

cocaine. 

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. Tenn.

Code Ann. § 40-35-401(d). This presum ption is “conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and
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all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). There are, however, exceptions to the presumption of correctness. First, the

record must demonstrate that the trial court considered the sentencing principles and

all relevant facts and circumstances. Id. Second, the presumption does not apply

to the legal conclusions reached by the trial court in sentencing. Third, the

presum ption does not apply when the determinations made by the trial court are

predicated upon uncontroverted facts. State v. Smith, 898 S.W.2d 742, 745 (Tenn.

Crim. App. 1994), perm. to appeal denied, id. (Tenn. 1995). 

Our review requires an analysis of: (1) The evidence, if any, received at the

trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant’s

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, & -

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 facts and principles set out under the sentencing law, and that

the trial court’s findings of fact are 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). 

Upon review of the record, we find that the trial court failed to state specific

findings of fact justifying the enhancement and mitigating factors applied and how
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it determined the weight to be applied to each of them. Furthermore, the trial court

did not explicitly set forth its reasoning for the sentence imposed or for the denial of

alternative sentencing, and hence, failed to follow proper statutory sentencing

procedure. Therefore, review by this Court is de novo without a presumption of

correctness.

Defendant first argues that the eight (8) year sentence imposed was

excessive. At the brief sentencing hearing, the trial court noted two enhancement

factors to be applicable: (1) Defendant had a previous history of criminal convictions

or criminal behavior; and (2) the felony was committed while on parole from a prior

felony conviction. Tenn. Code Ann. § 40-35-114(1) and (13)(B). The trial court

considered two mitigating factors: (1) that the offense neither caused nor threatened

bodily injury; and (2) Defendant admitted guilt. Tenn. Code Ann. § 40-35-113(1) and

(13). 

The pre-sentence report indicates that Defendant was previously convicted

of the following offenses: second degree burglary in 1976, two counts of attem pt to

commit the felony of burglary in 1979, possession of stolen property in 1980,

receiving stolen property in 1982, first-degree burglary on two separate occasions

in 1985, and larceny, second-degree burglary and first-degree burglary in 1988. At

the time he committed the present offense, he was on parole from a prior fifteen (15)

year sentence imposed in 1988 in Fayette County. 

Tennessee Code Annotated section 40-35-210(c) provides that the minimum

sentence within the range is the presumptive sentence for a Class D felony. If there

are enhancing and mitigating factors, the court must start at the minimum sentence
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in the range and enhance the sentence as appropriate for the enhancement factors

and then reduce the sentence within the range as appropriate for the mitigating

factors. Tenn. Code Ann. § 40-35-210(e). It was stipulated by the parties that the

Defendant would be sentenced as a Range II Multiple Offender. Theft of property

between $1,000 and $10,000, a Class D felony, has a sentence range of four (4) to

eight (8) years for a Range II offender. Tenn. Code Ann. §§ 40-35-112(b)(4), 39-14-

103 and 39-14-105(3). Even if some evidence of mitigation existed, which was

acknowledged by the trial court, where the mitigating factors are strongly outweighed

by the enhancement factors, the maximum sentence is warranted. State v. Ruane,

912 S.W.2d 766, 785 (Tenn. Crim. App. 1995). Based upon Defendant’s lengthy

criminal history and the fact that the present offense was committed while Defendant

was on parole, it was well within the trial court’s discretion to impose the maximum

sentence. Thus, the trial was justified in imposing the maximum sentence of eight

(8) years. 

Tennessee Code Annotated section 40-35-102 outlines when alternative

sentencing is appropriate. A defendant who “is an especially mitigated or standard

offender convicted of a Class C, D or E felony is presumed to be a favorable

candidate for alternative sentencing options in the absence of evidence to the

contrary.” Tenn. Code Ann. § 40-35-102(6). As noted above, Defendant agreed to

plead guilty as a Range II Multiple Offender, so he is not within the parameters of

Tennessee Code Annotated section 40-35-102(6), and is therefore not presumed

to be a favorable candidate for alternative sentencing. Our sentencing law also

provides that “convicted felons committing the most severe offenses, possessing

criminal histories evincing a clear disregard for the laws and morals of society, and
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evincing failure of past efforts at rehabilitation shall be given first priority regarding

sentences involving incarceration.” Tenn. Code Ann. § 40-35-102(5).

When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations which

militate against alternative sentencing include: the need to protect society by

restraining a defendant having a long history of criminal conduct, whether

confinement is particularly appropriate to effectively deter others likely to commit a

similar offense, the need to avoid depreciating the seriousness of the offense, and

the need to order confinement in cases in which less restrictive measures have often

or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-

103(1)(A) - (C). 

In the case sub judice, we find that confinement is necessary to protect society

from Defendant based on his extensive criminal record dating back to 1976. See

Tenn. Code Ann. § 40-35-103(1)(A). He has been previously convicted of numerous

felony offenses and the present offense was committed while on parole from a prior

felony conviction. The Defendant has apparently failed at all past efforts of

rehabilitation. See Tenn. Code Ann. § 40-35-103(5). Based on these facts, the

Defendant apparently has a total disregard for the laws and morals of society. 

Regarding Defendant’s request for split confinement, this Court has held that where

a defendant’s history indicates a clear disregard for the law and morals of society

and a failure of past efforts to rehabilitate, the trial judge does not abuse his

discretion in denying probation. State v. Chrisman, 885 S.W.2d 834 (Tenn. Crim.

App. 1994). 
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The Defendant also argues that Community Corrections would be a suitable

alternative to incarceration. The Community Corrections Act allows certain eligible

offenders to participate in community based alternatives to incarceration, however,

a defendant must first be a suitable candidate for alternative sentencing. Tenn.

Code Ann. § 40-35-104(9). Therefore, since the Defendant is not a suitable

candidate for alternative sentencing because of the factors discussed above, this

precludes him from participating in the Community Corrections program. 

While the trial court may have failed to specify certain facts to support the

sentence imposed, we find that the record provides the facts necessary to affirm the

trial court’s decision. Based upon the evidence presented at the sentencing hearing,

the presentence report, the principles of sentencing set forth in Tenn. Code Ann. §

40-35-102, -103, -104, the nature of the offense, and the Defendant’s potential for

rehabilitation, we find that the trial court did not err in imposing the maximum

sentence and denying the Defendant any type of alternative sentencing. 
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Accordingly, the judgment of the trial court is affirmed.

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

JOSEPH B. JONES, Presiding Judge

___________________________________

JOHN H. PEAY, Judge