# FILED
February 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE CRIMINA

L COURT OF APPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) APPELLEE, ) C.C.A. N o. 02C01-9612-CR-00476 ) vs. ) Shelby County ) KENNETH B. JOHNSON, ) Hon. James C. Beasley, Jr., Judge ) APPELLANT. ) (Sentencing) )

FOR THE APPELLANT: FOR THE APPELLEE: MARK A. MESLER JOHN KNOX WALKUP 200 Jefferson Avenue, Suite 1250 Attorney General & R eporter Memphis, TN 38103 KENNETH W. RUCKER Assistant Attorney

General 450 James Robertson Parkw ay Nashville, TN 37243- 4351 WILLIAM L. GIBBONS District Attorney

General 201 Poplar Av enue, Suite 3-01 Memphis, TN 381 03 LEE V. COFF ER Assistant D istrict Attorney Gene ral 201 Poplar Av enue Memphis, TN 381 03

OPINION FILED: _____________
AFFIRMED CURWOOD WITT, JUDGE2 OPINION

The defendant, Kenneth B. Johnson , appeals the manner of the service of his sentence as determ in ed by the Shelby County Criminal Court. He
was charged withthree counts of forgery over $10,000.00, Class C felonies. Upon acceptance of his guilty plea, the trial court sentenced the defendant to three years on each count, torun concurrently, and imposed a fine of $500.00 on each count. The effective sentence of three year s was ordered to be

se rved through periodic confinementconsisting of a probationar y period of four years in conjunction with incarceration on 52 con secutive weekends during the fir st year of probation. During the remaining thr

ee yea rs of the probationary period, the defendant is to pe rform 100 hours of community servi ce.

In this appeal, th e defendan t challenge s t he trial court’s denial of judicial diversion and the denial of probation. Upon a close review of the record , the briefs of the pa rties, an d the app licable la w, we affirm the judgment of the tri al court.

At the time of se ntencing, the defendant wasa thirty-year old colle ge graduate. The defendant testified he found a tax form ly ing in a p ost office in Hickory Hill. The form r

eflected the name of ataxpayer, Bernard Johnson, the taxpayer’s social security number (SSN), an d a co py of the taxpayer’s driver’s license. The defendant took this form home with him . Later, he used Bernard Johnson’s SSN to obtain a new driv er’s license that bore the defendant’s picture and address. He then used the fraudulent SSN and/or identific ation supplied by the
new driver’s license toobtain two loans totali ng $8,622.73. (These loans w ere not
a subject

of the pr

esent in dictment, nor an y other indictment, and

the defe ndan t testified the loans were repaid by him and his parents.) In October, 1995, subsequent

to obtaining the loans, the d efend ant wanted to buy a 1995 Ford Mustang from Bud Davis, Inc., a Shelby County car dealership. Discover ing that he had inadequate credit to enable him to purchase the car withou t a prohib itive down3

payment, he applied for financing, ti tle, and vehicle registration using the false identification and SSN. Before the defendant returned to the dealer ship to finalize the purchase and loan, the dealer l earned about the impen ding fraud through a credit check and atelephone conversation with the real Bernard Johnson. When the defendant returned to the dealership t o execute the various documents, the police arrested him, resulting

in the three charges of w hich he stands convicted.

The defendant testified that when he returned to the dealership, he had actually decided to cancel the purchase. Moreover, he testified, that prior to deciding to cancel the transaction, h e had intended to repay the car loan, citing the fact that he gave his true address to the would-be creditor.

The trial court observ

ed that the defendant had no previous criminal historyexcept for traffic offenses, had received a college degree, and had gained experience working as a l oan officerin a financial institution. However, the court expressed antipathy toward the defendant’s using his socia l advantages, education and expe rience in commercial transactions to devise a significant, “white collar” fraud scheme. The court expressl y stated that it disbeli eved t he defendant when he claimed his crimes were spontaneous and impulsive and that he had not used his expertise in devis ing the scheme f ro m the time when he acquired Bernard Johnson’s SSN and driver’s l icense facsimile. The trial court foun d that incarceration probably would not be a factor in assuring that the defendant would not re-offend, that the defenda nt probably would follow the conditions of probation, that soci ety’s interest is not served by incarce ration, and that less restr icti v e measures than incarceration probably would work. Nevertheless, the count denied judicial diversion and total probation, finding that some incarceration was necessary t o avoid depreciating the seriousness of the offense and in order to serve as a suitable deterrent. The court cogently articulat

ed its disagreement wi

th the notion, discerned from the defendant’s position, that educated, socially- advantaged defendants with little or no criminal record are viewedas being entitled to probat ed4

sentences. The court questioned the law favoring this result, especially when such “whitecollar” crime is often en gendered by greed or avarice, w h ile more needful offenders are often dealt with more severely. The defendant char acterizes the court’s finding s and conclusions as being arbitrary and indicative of the court’s refusal to follow the law , namely the Sentencing Re form Act of 1989.

I. Princi ples

of Se nten cing

Rev iew.

When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review of the record with a presumption that the determ ination s made by the trial court are correct. Tenn. Code Ann. §40-35-401(d). This presumptio n is “conditioned upon the affirm ative showing in the recor d that the tr ial court considered the sentencing principles

and all relevant facts and circumstances.” Stat e v. Ashby , 823 S.W.2d 166, 1 69 (Tenn. 199 1). “The burden of showing that the sentence is improper is upon t he appellant.” Id . In the event the record fail s to demonstrate the require d consideration by the trial court, review of the sentence is purely de novo

. Id . If appellate review reflects the trial court properly consi dered all relevant factor s and its findings of fact are adequately supported by the record, this court must a ffirm the sentence, “even if we would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (T enn. Crim. App. 1991).

In making its sentencing determination, the trial c ourt, at the “conclusion of the sentencing hearing,” determines the range of sentence and then deter mines the specific sentence and the propr iety of sentencing alter natives by considering(1) the evid ence, if any, received at the trial and the sentencin g hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing al ternativ es; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and informatio n offered by the parties on the enhancement and mit i gating factors; (6) any statements the defendant wishes to make in the5

defendant’s behalf about sentencing; and (7) the potential for rehabilita tio n or treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code Ann. §40-35- 103(5)(1990); State v. Holland , 860 S.W.2d 53, 60 (T enn. Crim. App. 1993).

A defendant who “is an especial ly mitigated or standa rd offender convicted of a Class C, D, or E felony is presumed to be a favo rable candidatefor alternat ive sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. §40-35-102(6) (1997). 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 societ y, a n d evincing failure of past efforts at rehabilitati on, shall be given first priority regardi ng sentences involv ing incarceration.”

Tenn. Code Ann. §40-35-102(5 ) (1997). Thus, a defendant who meets th e above criteria is presumed eligible for alternative sentencing unless sufficientevidence rebuts the presu mption. However, the act does not provide that all offenders who meet the criteria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances presented in each
case. See State v. Taylor , 744 S.W.2d 919, 92 2 (Tenn. Crim. App. 1987).

In the present case, the trial court tangentially referred to some of the principles

of sentencing; however, the defendant is correct in as serting that the trial court evinced a certain antipa thy toward the sentenci ng law, especially insofar as alternat ive sentencing principle s re late to a defendant in Mr. Johnson’ s situation. Accordin gly, we conduct our revi ew without any pr esumption of correctness of the manner of service of the defendant’s se ntence.

II. Judicial Diversion.

In his first issue, the defendant challenges the tria l court’s denial of judicial diversio n. The Sentencing Reform Act of 1989 pr ovides in pertinent part :6 If any person who has not previouslybeen convictedof a felony or a Class A misdemeanor is found guilty or pleads guilty t

o a misdemeanor

which is punishable by imprisonm ent or a Class C, D or E felony, the court may , without entering a judgment of guilty and with the consent of

such person, defer further proceed ings and place t he person on probation upon such r easonable conditions as it m a y require and for a perio d of time n ot less than the period of the maximum sentence for themisdemeanor with which he is charged, or not more than the period of maximum sentenc e of the felony with which he is charged, on condition that the defendant pay, in addition to the payme nt of not less than ten dollars ( $10.00) nor more than thirty-fi ve dollars ($35.00) per month, as determined by the court [as part payment of the expenses of super vision of the defendant] . . . Tenn. Code Ann. § 40-35-313(a)(1) (1997).The procedure under this prov ision is commonly referred to as judici al diversion. It is subs tantially similar to pretrial diversion; however, judicial diversion follows a guilt deter mination and the decision to grant diversion rests w

ith the court, not the prosecutor. State v. Anderson , 857 S.W.2d 571, 572 (T enn. Crim. App. 1992).

The lower court’s denial of judic ia l diversion is subj ect to appellate reversal only if that

court abused its discretion. State v. Hammersley , 650 S.W.2d 352, 356 (T enn. 1983) . When a defendant challenges the denial of judicial diversio n, we are constrained not to rev isit the issue if the recor d contains any substantial evidence supporting th e trial court’s decis ion. Hammersley , 650 S.W.2d at 356; accord State v. Carr , 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993) (where the evidence is capable of justifying differing results in apretrial diversion case, this court allows the prosecutor his or her discretion o n a decision of whether to al low diversion).

In determining whether to grant judicialdiversion, the trial court must consider (a) the accused’s amenability to correction, (b) the circumstances of the offense, (c) the accused’s cri minal record, (d) the accused’s social history, (e) the status of the accused’s phy sical and mental h ealth, ( f) the deterrence value to the ac cused as well as other s, and (g) whether d iversion wil l serve the public’s and the accused’s interests in the ends of justice.
State v. Bonestel , 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (citation omitted).7

Moreover, the record must reflect t ha t the court has weighed all of the factors in
reac hing its determination. Id ., 871 S.W.2d at 168 (citatio ns omitted). The co ur t must explain on the record w hy the defendant does not qualify under i ts analysis, and if the cour

t has based it s determination on only some of the factors, it must explain why these factors outweigh the other s. Id ., 871 S.W.2d at 168.

The trial court did not ex plain whether it had cons idered all ofthe other factors, and under

the dic tate of Bonestel , t he trial court’s analy sis does not
a dequ atelyappear of record. The question r emains, however, w

hether the trial court reached the correct result notwithstanding its failure to explain its analysis on the record. See State v. Talmadge G. Wilbanks , No. 02C01-9601-CR-00003 ( Tenn. Crim. App., Jackson, Nov. 19, 1996) (trial court’s denial of diversion affirmed despi te court’s failure to explain its considerations and analysis on the record).

We cannot conclude that the court abused its discretion in d e nyi ng judicial diversion. The trial court determined the defendant w as untruth ful, or at least lacked candor , i n that he maintained his actions were spontaneous or impulsive. The defendant’s characterization of his actions is belied by his successful scheme to obtain a bogus dri ver’s l icense. We believe this lack of candor with thetrial court weig hs against his amenabilit y to correction. See State
v. Paul Emile Oliver , No. 03C01-9510-CC-00332 ( Tenn. Crim. App., Knoxville, July 15, 1996) (denial of pretri a l diversion upheld based upon appellant’s inconsistent stat ements to the trial court about his involvement in drug sales p rior t o apprehension); State v. Nease , 713 S.W.2d 90 (Tenn. Crim. App. 1986) (defendant who was untruthful with trial court appropriately denied diversion).

Th is c ourt has said that the presence of only one of the f actors is sufficientto support a denial of judicial div ersion. State v. Thomas Dailey , No. 02C01-CR-00008 (Tenn. Cri m. App., Jackson, Aug. 21, 1991) (r elying on State v. Baron , 659 S.W.2d 811 (Tenn. Crim. App. 1983) (app lying this rule i n the con text8

of a denia l of probation)). The trial court had the opportunity to hear and see th e defendant testify, and we must defer to the trial co urt’s co nclusion that the defendant lacked candor. Therefore, the Bonestel “amenability to corr ection” factor adequately supports the den ial of judicial diver sion.
III. Alternative Sentencing - Probation.
Having qualified pursuant to Tennessee Code Annotated section 40- 35-102(6) (1997), the defendant is presumed to be a favorable candidate f or alternat ive sentencing. Moreover, he is eligible for pr obation. See Tenn. Code Ann. § 40-35-303(a) (1997). He argueshe should receive straight probation, ra ther than periodic confinement.

First, we point out that the defendant did re ceive an altern ative sentence. Split or periodic confine ment is an alte rnative sentencing opti on. See State v. James A. Howard , No. 03C01-9608-CC-00 284, slip op . at 7 (Tenn. C rim. App., Knoxville, Februar y 24, 1997), appl. perm. app. dismissed (Tenn. 1997); State
v. James E. Allred , No. 03C01-9504-CR-00110, sli p op. at 2 (Tenn. Crim. App., Knoxville, March 20, 1996); State v. Marjorie Jeanette Sneed , No. 03C01-9410-CR00369, slip op. at 3

(Tenn. Crim. App., Knoxville, October 17, 1995); State v. Danny Allison , No. 03C01-9403-CR-00106, s lip op. at 3 (Tenn . Crim. App., Knoxvi lle, March 23, 1995); State v. Alvin Lee Lewis , No. 01C01-9404-CC-00125, slip op. at 7-8 (Tenn. Crim. App., Nashville, March 14, 1995), perm. app. denied (Tenn. 1995);
see Tenn. Code Ann. § 40-35-104(c) (1997). The benefit the defenda nt enjoyed in being presumed a suitable candidate for alternative sentencing

has been depleted.

Accordin gly, we move to the questi on of proba tion. The defendant seeks total probation. Probation is, indeed, an alte rnative sentencing option. Tenn. Code Ann. § 40-35-104(c)(3) ( 1997); Tenn. Code Ann. §40- 35-303(b) (1997). However, the burden rests wi th the defendant to show that he is entitled to1 We are aware that a document ap pears in the technical record

which bears the caption “presentence report,” and this document con tains a victim impact statement. Thi s statement includes declarations of an officer of the corporate victim w

hich reveal that this v

ictim suffered other thefts whic h resulted in a large aggregate loss. We do not even determine if such infor mation serves as evidence of a need for deterrence because the presentence report which contains the statement is not in evidence. Other aspects of the presentence report are in evidence through the testimony of the defend ant, but the report itself was not exhibited to the sentencing hearing by the trial judge. Its appearance in the technical record certified by the trial court clerk is meaningless from an evidentiary standpo int. State v. Cooper , 736 S.W.2d 124, 131 (Tenn. Crim. App. 1987); see Tenn. R. App. P. 13(c); see also State v. Jerry Blaylock , 9 probat ion. Tenn. Code Ann. § 40-35-303(b) ( 1997); see State v. Bingham , 91 0 S.W.2d 448, 455 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995). In Bingham , this court observed: It should be pointed ou t that determining whether a defendant is entitled to an alt ernati ve sentence necessarily requires a separate inquiry from that of determining whether the defendan t i s entitled to full probation. This is so because the inquiri es involv e different burdens of proof. Where a defendant is entitled to t h e statutory presumption of alternative sentencing , the state has theburd en of overcomingthe presumpti on w ith eviden ce to the contrary. Conversel y, the defendant has the burden of establishi ng sui tability forfull probation, even if the defendant is entitled to th e statutory presumption o f alternative se ntencing. Bingham , 910 S.W.2d at 455. To prevail in the quest for full probation, a defendant must demonstrate t hat p robation “will ‘subserve the ends of justice and the best interest of both the public and the defendant.’” Id ., 910 S.W.2d at 456 (quoting State
v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). In Bingham , we cited the following factors

which , althou gh “not

control ling th e discr

etion of the sentencing court,” should be consider ed in determining the appropr iateness of probation: (1) The nature and characteristics o f the crime, under Tenn. Code Ann. § 40-35-210(b)(4) (1990); (2) the defendant’s potential for rehabilitation under Tenn. Code Ann. § 40-35-103(5) (1990); (3) whether full probation would “unduly depreciate the seri o usness of the offense,” under

Tenn. Code Ann. § 40-35-103(1)(B ) (1990); and (4 ) whet her a sent ence of full prob ation wou ld “provide an effe ctive deterrent,” under Tenn. Code Ann. § 40-35-103 (1)(B) (1990). Bingham , 901 S.W.2d at 456.

The defendant correctly asser ts that the court’s reliance upon deterrence is unsupported in the record. See State v. Davis , 940 S.W.2d 558, 560 (Tenn. 1997); Stat e v. Hartley , 818 S.W.2d 370, 37 5 (Tenn. Crim. App. 1991). 1No. 02C01-960 2-CC-00069, slip op. at 15, n. 2 (T enn. Crim. App. , Jackson, Aug.

21, 1997), pet. for perm. app. filed(Tenn. Oct. 20, 1997). 10 The court’s ruling cannot be justified by any need for deterrence. Hartl ey , 81 8 S.W.2d at 375.

Consequently, the only remaining bases relied upon by the court for
su pp orting its decision are the need to avoid depreciating the seriousness of the offense, see Tenn. Code Ann. § 40-35-103(1)(B) (1997), and the perceived lack of candor. We need not discuss the claim that the trial court improperl y determined that confinemen t was necessary to avoid depreciating t he seriousness of the offense, however, because, asdiscussed in the preceding section of this opinion, the trial court perceiv

ed a lack of candor, if not mendacity, i n the defendant’s explanation of his offense.

A lack of candor, bear ing upon the defendant’s amenability t o probation, is a recognized basi s for denying probation. State v. Neely , 678 S.W.2d 48, 49 (Tenn. 1984); State v. Byrd , 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993); State v. Poe , 614 S.W.2d 403 (Tenn. Crim. App. 1981). Accordi ngly, we cannot conclude that the trial court abused its discretion in ord ering periodic confinement.

The judgment of the trial court i s affirmed.

_________________________ CURWOOD WITT, JUDGE CONCUR:

______________________________ JOE B. JONES, PRESIDING JUDGE

______________________________ JERRY L. SMITH, JUD GE