# FILED
March 19, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1998 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01-9705-CR-0 0188 ) ) Shelby County v. ) ) James C. Beasle y, Jr., Judge ) ) (Sentencing) CONNIE L. FULTON, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Robert M. Brannon, Jr. John Knox Walkup Attorney at Law Attorney General & Repor ter 295 Washington Ave., Suite 3 425 Fifth Avenue, North Memphis, TN 38103 Nashville, TN 37243-0493 Elizabeth T. Ryan Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Karen Cook Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:_______________________________

__ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Connie L. Fulton ( def endant), a ppeals as of right from a judg ment of the trial court rev

oking her probation and refus ing to impose a second alternat ive sentence. In this court, th e defendant challenges the refusal of the trial court to impose
a second alternative sentenc e after revoking her

probation. After a thorough r eview of the record, the briefs submitted by the parties, and the law governing the iss ue presented for review, it is the opinion of this court that the judgment of the tr ial court should be affirmed. Th is court’s review

is hampered by the failure of the defendant to include a presentence report in the record.This court assumes a presentence report was prepared and considered by the trial court. The trial court alluded to certain salient facts which are not included in the record. These facts are extremely relev ant to whether the defendant should receive another al ternative sentence. The defendant entered a plea of guilty to the possessi on of cocaine with intent to sell, a Class C felony, on Febr uary 5, 1993. The trial co urt entered a j udgment of conviction on June 4, 1993. The def endan t was sentenced as a Range I standard offender. The sentence consistedof a $2,000 fine and confinement for five (5) ye ars in the Shelby County Correctional

Center. The court suspended all bu t fi fty (50) days of the sentence, which was to be served on w eekends, and placed the defendant on probation for five (5) years. On September 3, 1996, the State of Tennessee (s tate) filed a petition to

revoke the defendant’s probation. The petitionalleged t he defendant had failed to report to the probation officer

as directed and she had been arr ested and convictedof one felony and fourmisdemeanors while on probation for the offense in question. An evidentiary hear ing
washeld on December 17, 1996. The trial court revoked the defendant’s probation and ordered that she serve the remainder of the sentence. Th e defendant was required to r eport to her probation officer each mon th. Th e evidence introduced by the state r ev ealed the de fendant did not report to the probati on officer from September 30, 1994until March of 1995. The probati on officer attempted to contact the defendant by telephone and by letter on numerous occasions . The defendant3

admitted she was living at the sameaddress the entire time, but s he never received the letters sent to that address

. When the defendant report e d to the probation officer in Mar ch, she advised the officer she had been arrested for the commission of new offenses. The officer advised the defendant a revocati on proceedin g would be instituted

because she h ad violated the terms of her probation. Although the defendant was advised to continue to report, the defendant did not report a fter the March m eeting. In refusing to impose an alternative sentence, th e tria l court stated the defendant had been convicted of seven counts of shoplifting and several misdemean ors before she
wasplaced on probation for the offense in q uestion. On August 6, 1996, the defendant entered pleas of guilty to theft over $500, a Class E felony, two counts of theft under $500, Class A misdemeanors, driving after her license had been suspende d, rev oked or canceled, also a Class A misdemeanor, and reckless driving, a Class B misdemeanor. When an accused challen ges the refu sal of a t rial court to impose an altern ative sentence to incarce ration, i t is the du ty o f th is court to conduct a de novo review on the record with a presumption that “ the determinations made by the court from which the appeal is taken are correct.” Tenn. Code An n. § 40-35 -401(d). This presumption is “conditioned upon the affirmative showing in the record that

the trial court consider ed the sentencing principles and all rel evantfacts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached by the trial court i n sentencing the accused or to the determinations madeby the trial court which are predi cated upon uncontroverted facts. State v. Sm ith , 891 S. W.2d 163, 166 (Ten n. Crim. App.), per . app . denied (Tenn. 1994). However, this court is required to give great w eight to the trial cour

t’s determination of controverted facts as the trial court’s determination is based upon the witnesses’ demeanor and appearance when testifying. In cond uctin g a de novo review of a sentence, th is court must consider ( a) any evidence received at the trial and/or sent encing hearing, (b) the presentence report , when available, (c) the principles of se ntencing , ( d) the arguments of counsel rel ative to sentencing alternatives, (e) the nature and characteristi cs ofthe offense, (f) any mitigating4

or enhancing fac tors, (g) any statements made by the accused i n her own behalf, and (h) the accused’s potential or lack of potential for rehabili tation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210. State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). When the accused is the party challeng ing the sentence, the accused has the burden of establishing that the sente nce imposed by the trial court was erroneous. Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401; Ashby , 823 S.W.2d at 169.While the defendant is entitled to t he pre sumptio n of bein g fit for a lternati ve sentencing, Tenn. Code Ann. § 40-35-102(6), the record clearly rebuts this presumption. The trial court noted thedefendant had been convicted of seven counts of shoplifting and other misdemeanors prior to being placed on probation in this case. While on probation, the defendant committed and has b een convict ed of a felony and three misdemeanor offenses. As the trial court i nsinuated, releasing the defendant back into the community would result in the defendant c ommitting additional cri minal acts. Confinementin this case is necessar y to protect society

due to the defendant’s long historyof criminal conduct, Tenn. Code An n. § 40-35-103(1)(A), and to avoid depreciating the seriousness of the offense and deter the de fendant and others from engaging in the
same course of conduct. Tenn. Code Ann. § 40-35-103( 1)(B). Als o, measures less restricti ve than confinement have recently been applied unsuccessfully to the defendant, Tenn. Code Ann. § 40-35-103(1)(C ), and it is apparent the defendant lacks the potential forrehabilitation given her prio r record a nd proclivity to commit a multitude of offenses while on probation. Tenn. Code Ann. § 40-35-103(5). Thi s court is of the opinion the trial court properly denied the defend ant’s re ques t to be considered for a second alte rnative sentence for the foregoing reasons. Thus, the judgment of the trial court is affirmed.

_ __________________________________ _______ _ JOE B. JONES, PRESIDIN G JUDGE5

CONCUR:

______________________________________ JOHN H. PEAY, JU DGE

______________________________________ THOMAS T. WOODALL, JUDGE