# FILED March 27, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON FEBRUARY SESS ION, 1998

STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9705- CC-00185 ) Appellee, ) ) HARDEMAN COUNTY V. ) ) ) HON. JON KERRY BLACKWOOD, BEVELYN BAILEY, ) JUDGE ) Appe llant. ) (THEFT)

FOR THE APPELLANT : FOR THE APPELLEE : CLIFFORD K.McGOWN, JR. JOHN KNOX WALKUP 113 North Court Squ are Attorney General& Reporter P.O. Box 26 Wa verly, TN 37185 JANI S L. TURNE R (ON AP PEAL O NLY) Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 GARY F . ANTRICAN ELIZABETH T . RICE Distri ct Public

Defender District Attorn ey Ge neral JEANNIE KA ESS JERRY W. NORWOOD Assistant Public Defender Assistant Distri ct Attor ney General P.O. Box 700 Hardeman County Courthouse Somervill e, TN 38068 Bolivar, TN 38008

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE



# OPINION-2- The Defen dant, Bevelyn Bail ey, appeals as of right the sentence imposed by the trialcourt upon hi s convict ion of theft. Defendant was indi cted by theHardeman Coun ty Grand Jury of burglary, theft and criminal imperso n ation. Defendant pled guilty to theft

of propert

y worth bet

ween $1,000 and $10, 000 i n violat ion of Tennessee Code Annotat ed sec tio n 39- 14-10 3. Thetri al co urt sent enced De fendan t to eight (8) years incarc eration as a R ange II Multiple O ffender a nd de nie d Defendant ’s request for alternat ive sentenci ng. The sentence was or dered to run c onsecutivel y to a prior fifteen (15) year sentence imposed i n Fayette County , for which he was on parole at the time of

the present off

ense. In t his appeal, Defendant argues that the trial co urt erred in senten cing him to eight (8) years incarcerat ion and in finding that he was not a favorabl e candidate for alter nat ive sente ncing of split confinementor Community Correct ions. We affirm the judgment of t he tria l court.

Defendant testif ied on his own behalf at the sentenci ng hearing. He testif ied that in the pas t he wa s “just w ild” but th at he “g rew up men tally” wh ile he w as in prison. He stated th at he obtai ned a job when he was on parol e, but be cam e addicted to crack c ocaine in 1995. D efen dant testifi ed that this addict ion to crack cocaine caused him to ski p work and to ul timately quit hi s job. He further testifi ed he would not ha ve comm itted the pre sent offense of theft i f he had not been on cocaine
. When an accused challenges the l ength, range, or t he manner of servi ce of a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with a presumption t hat the determinations made by t he trialcourt are cor rect. Tenn. Code Ann. § 4 0-35-40 1(d). Th is presum ption is “co nditioned upon th e affi rm ative showing in the reco rd that t he trialcourt consi dered the sente ncing pri nciples and-3-

all relevant

facts and circums tances .” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). There are, however , excepti ons to the presumpti on of correct ness. First, the record must demonstrate that the tri al court considered the se ntencing principl es and all relevant

facts and circums tances
. Id. Seco nd, the presu mptio n doe s not a pply to the legal conclusion s reached by the trial court in sentenc ing. Third , th e presum pti on does not ap ply when the d eterminations made b y the trial court are predicated upon u ncontro verted fac ts. State v. Smith , 898 S.W.2d 742, 745 (Tenn. Crim. A pp. 199 4), perm . to appeal denied , id . (Tenn . 1995).

Our review re quires an anal ysis of: (1) The evid ence, if any, recei ved at the trialand sentencing h earing; (2) the presentence report; (3) the pr incipl es of sentencing and the arguments of counsel rel ative to sentencing al ternati ves; (4) the nature and characteri stics of the offense; (5) any mit igating or enhancing factors; ( 6) any statements made by t he defendant i n his own behal f; and (7) the defen dant’s potentialfor rehabi litat ion or treat ment. Te nn. CodeAnn. §§40-35- 102, - 103, & - 210; see Sta te v. Smith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s tha t the t rial cour

t foll owed the statu tory sentencing procedure, imposed a lawful sentenc e after h aving given due considerat ion and properweight to t he facts and pr incipl es set out under the sentenci ng law, and th at the trial court’s findings of fact are ad equa tely supported by t he record, t hen we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher , 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).
Upon review of

the record, we find that the tr ial court failed to state s pecifi c findings of fact justif

ying the enhan cement an d mitigat ing factors appli ed and how-4-

it determined the weigh t to be app lied to eac h of them
. Furthermo re, the trial court did not explicitly se t forth its reas oning for t he sentence imposed or f or the denialof alternative sentencing, and hence, fai led to fol low proper statutory sentencing procedure. Therefore, reviewby this Court is de novo without a p resumption of correctness.

Defe ndant first

argues that the eight (8) year se ntence imposed was excess ive. At the bri ef sentenci ng hearing, t he trialcourt noted two enhancement factors to be applicable: (1) D efendant ha d a previous h istory of crimi nal convic tions or criminal behavior; and (2) the felony was com mitted while on parole fr om a prior felony convicti on. Tenn. Code Ann. § 40- 35-114(1) and (13)(B). T he trial court considered two mitigati ng factors: (1) that the offens e neither caused nor threatened bodily injury ; and (2) Defendant admitted gui lt. Tenn. Code Ann. § 40-35-113(1)and (13).

The pre- sen tence report indicat es that Defendant was previousl y convicted of the follo wing o ffense s: seco nd de gree b urglar y in 1976, two cou nts of attem pt to com mit the felon y of burgl ary in 1979, possess ion of stolen propert y in 1980, receivi ng stolen pro perty i n 1982, fi rst-degree burglary on two separate occasions in 1985, and larceny, second-degr ee burglary

and first-degree burgl ary in 1988. At the time he committed t he present off ense, he was on parole f rom a prior f ifteen ( 15) year sen tence im posed in 1988 in Fayette C ounty.

Tennessee Code Annotated sect ion 40-35-210( c) provi des that the mi nimum sentence within t he range is t he presumptive s entence for a Class D fe lony. If there are enhancing and mitigating factors, the court must star t at the minimum sentence-5-

in the range and enhance t he sentence as appropr iate for the enhancement factors a nd then reduce t he sentence wit hin the range as appropriate for the mit igating factors. Tenn. Code Ann. § 40-35-210(e) . It was stipul ated by theparties t hat the Defendant would be senten ced as a Ran ge II Multiple O ffender. T heft of prop erty between $1,000 and $10,000, a Class D felony , has a sentence r ange of four

(4) to eight(8) years for a Range II offender. Tenn. Code Ann. §§ 40-35-1 12(b)(4), 39-14- 103 a nd 39-14- 105(3). Even if some eviden ce of mit igati on existed, wh ich wa s acknowledged by the tr ial c ourt, wh ere the miti gating fac tors are st rongly out

weighed by the enhancement factors, the maxi mum senten ce is warra nted. State v. Ruane , 912 S.W.2d 766, 785 (Tenn . Crim. A pp. 1995). Based up on Defendant’s l engthy criminal history and the fact that the pr

esent offens e was committed while Defendant was on parole, it was well within t he trial court ’s discreti on to impose the maximum sentence. Thus, the trialwas justi fied in imposing the maximum sentence of ei ght (8) years.

Tenne ssee Code A nnotated se ction 40-35-10 2 outlines whe n alternative sentencing is appropriate. A defendant who “ is an especial ly miti gated or standard offender convicted of a Clas s C, D or E felon y is pres ume d to be a favor able candid ate for altern ative se ntenc in g option s in the absence of evidence t o the contrary.” Tenn . Code Ann. § 40-35-102(6). As noted above, Defen dant ag reed to plead guilty

as a Range II Multi ple Offender, so he is not wi thin the p arameters of Tennessee Code A nnotated se ction 40-3 5- 102(6), and i s therefor e not presumed to be a favo rable can didate for a lternative se ntencing
. Our sentencing law also provi des that “conv icted fe lons committi ng the most severeoffenses, possessing criminal histori es evinci ng a clear di sregard for the laws and morals of soci ety, and-6-

evincing f

ailure of past effo rts at

rehabili tation s hall be given fi rst pri ority regarding sentences involving incarceration.” T enn. Cod e Ann. § 40 -35-102(5).

When imp osing a sentence of totalconfinement, our Criminal Sentencing Reform Act mandates the t rial cour t to base i ts decisi on on the consider ation s se t f o rth in Tennessee Code Annotated section 40-35-103. These considerations which militate against al ternati ve sentencin g include: the ne e d to protect society by restrai ning a d efend ant having a l ong history of crimi nal conduct, whether confinementis partic ularly ap propr iate to e ffectively deter o thers lik ely to com mit a similar offense, th e need to avoid depreciati ng the seri ousness of the of fense, and the need to order conf inement in cases in which l ess restri ctive measures have often or recently

been unsuccessfully applied t o the defendant . Tenn. Code Ann. § 40-35- 103(1)(A ) - (C).

In the case sub judice , we find tha t confin eme nt is neces sary to pro tect socie ty from Defe ndant b ased o n his exten sive crimin al record dating ba ck to 197 6. Se e Tenn. Code Ann. § 4 0-35-10 3(1)(A). He has been previously convicted of numerous felony offenses and the present offensewas c omm itted wh ile on parole fr om a prior felony conviction . The D efenda nt h as appar ently failed at all past

efforts of rehabili tation. See Tenn. Code Ann. § 4 0-3 5-103(5). Based on these facts, the Defendant apparently has a total disregard f or the la ws and morals of society. Regarding Defe ndan t’s reque st for sp lit confin eme nt, this Court has h eld that where a defend ant’s histor y indicates a clear dis regard fo r the law an d mora ls of society and a failure of p ast efforts to rehabilitate , t he tri al judg e doe s not a buse his disc retion in denying probatio n. State v. Chrisman , 885 S.W.2d 834 (Tenn . Crim
. App. 19 94).-7- The Defendant also argues t hat Com mun ity Corre ctions would be a su itable alternative to incarce ration. The Com mun ity Corre ctions Act allo ws ce rtain eligible offenders to participa te in community based al ternati ves to incarceration, how ever, a defendant must f irst be a suitabl e candidate for alter native sentencing. Tenn. Code Ann. § 40-35-104(9). Therefore, si nce the Defend ant is n ot a su itable candid ate for alternative sentencing be caus e of the factors discus sed a bove, this preclud es him from pa rticipating in th e Com munity C orrection s progra m.

W hile the trial court may h ave fail ed to specif y certai n facts to support the sentence imposed, we fi nd that the record provi des the facts necessar y to aff irm the trialcourt’s decision. Based upon the evidence prese nted at the sentencing hear ing, the presentence report, the princip les of sen tencing s et forth in T enn. C ode An n. § 40-35-102, - 103, -104, t he nature of the offens e, and the Defendant ’s potent ial for rehabili tation, we find that the tr ial court did not err

in impos ing the maximum senten ce and denying the Defe ndant a ny type of a lternative se ntencing
.-8- Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ JOHN H. PEAY, Judge