# FILED April 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804- CC-00175 ) Appellee, ) ) MARSHALL COUNTY V. ) ) ) HON. CHARLES LEE, JUDGE DENETRA SHA

WN COOK, ) ) Appe llant. ) (ESCAPE)

FOR THE APPELLANT : FOR THE APPELLEE : CLI FFOR D K. McGOWN JOHN KNOX WALKUP 113 North Court Square Attorney General& Reporter P.O. Box 26 Wa verly, TN 37185 ELIZABETH B.MARNEY (On App eal Only) Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding JOHN HARWELL DICKEY 425 Fifth Avenue North Distri ct Public

Defender Nashvill e, TN 37243 MICHAEL D. RA NDLES WIL LI AM MI CHA EL Mc COWN Assistant Public Defender Distri ct Attor ney General 105 South Main Street P.O. Box 1119 WEAKLEY E. BARNARD Fayettevi lle, TN 37334 Assistant Distri ct Attor ney General (At Tr ial and On A ppea l) Marshall Co. Courthouse, Room 407 Lewisburg, TN 37091

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Denet ra Shawn Cook, appeals as of right f ollowing her convicti on and s enten cing h earing in the M arsha ll Coun ty Circu it Court. On March 20, 1991, Defendant was c harged with fel onious escape when she escaped from the Mars hall County authori ties after being arrested for burglary. Defendant remained at large unti l 1997. On July 9, 1997, Defendant

entered a pl ea of guil ty to felonious jail escape in vi olation of Tennessee Code Annotated sect ion 39-16-605. Following
a sentencing hear ing, the trial c ourt su bseq uently sentenced Defendant to serv e two (2) years, to spend sixt y (60) days of that

senten ce incarc erated w ith the balan ce to be served on probat ion. Defendant contends that the t rial cour t erred i n ordering t he Defendant to serve sixty (60) days of

her sentence i ncarcerated bef ore placi ng her on prob ation. W e affirm the judgm ent of the tria l court.

When an accused chall enges the lengt h, range or t he manner of servi ce of a sentence, this cour

t has a duty t

o conduct a de novo review of the sentence wit h a presumption thatthe determinat ions made by the tr ial court are correct . Tenn. Code Ann. § 40-35-401(d) . This presumpti on is “condi tioned upon the affi rmative showi ng in the record t hat the tri al court considered thesentencing pr incipl es and all r elevant facts and circum stances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, t his court must consider: (a) the evidence, if any, received at the tri al and the sentenci ng hearing; ( b) the presentence report; (c) the pr incipl es of sentenci ng and arguments as to sentencing alter natives; (d) the nature and characterist ics of the cri minal conduct involved; (e) any statutory-3-

mitigati ng or enhancement factors; (f) any statement t hat the defend ant made on his
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. Code Ann. §§ 40-35-1 02, -103 , a nd -210 ; see State v. S mith , 735 S.W.2d 859, 863 (T enn. Crim. A pp. 1987).

If our revi ew reflect

s that thetrialcourt fol lowed the sta tutory sentencing procedure, imposed a lawfulsentence after having gi ven due consider at i on and properweight to th e factors a nd princip les set o ut under the sentenci ng law, and made finding s of fact

adequately su pported by the recor d, then we may not

modify the senten ce even if we wou ld have p referred a different res ult. St ate v. Fl etcher , 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).

At the sentenci ng hearing, Kennet h McElroy test ified forthe State. McE lroy,
a former d etective w ith the Ma rshall Co unty Sh eriff’s Dep artmen t, investig ated a burglary case wherein he char ged the Defendant wi th burglar izing a local residence. After taking ou t a warrantfor the Defendant, Defendant was arrested and incarcerated in the Marshall Count y Jail. During the time t hat she was incar cerated, McElroyrecalled that Defendant complained of back pain and, as a result , was taken to the local hospital in Lewisburg. McElroy and the jail er, Amy Adams, trans ported Defendant to the hos pital. While they were at the hospital for

x-rays, the Defendant asked to use the bathroo m and escap ed throu gh ano ther doo r to the bath room.

McEl roy was no longer employed as a detective when Defendant was arreste d in 1997 . Defe ndan t gave a statem ent to th e prob ation o fficer, to b e inclu ded in the pre-sentence re port, wherein she clai med McElroy advised her to escape and-4-

explained how she c ould escap e. McElroy de nied this allegation in his tes timony. McElroyleft t he Sheriff ’s Department of his own f ree willand while i n good standing.

Jenn ifer Robinson prepared t he presentence report of t he Defenda nt
. Robinson stated th at she personal ly interviewed t he Defendant, f inding he r t o be very coop e rative in giving in forma tion. Ro binso n was not aw are of a nything in Defe ndan t’s backg round which wou ld render her a b ad risk for alternative sentencing.

The trialcourt recogni zed tha t the D efend ant wa s pres ume d a favo rable candid ate foralternat ive sentenci ng, but noted the fact t hat Defendant had not been truthf ul with t he court. The t rial cour t stated t hat the Defendant elected not to take the witnes s stan d at the sente ncing hearin g and instead r elied upon her

earlier statementin which she accused McElroy of advising her to escape. As aptly noted by the trial cour t, truthf ulness by a defendant during a sentencing heari ng is a factor t ha t may be considered i n determining the defendant’ s amenabilit y for prob ation. State v. Dykes , 803 S.W .2d 250 , 259 (T enn. C rim. App . 1990). Therefore, Defen dant wa s ordere d to serve sixty (60) da ys in the M arshall C ounty jail.

A defe ndan t who “is an es pecia lly mitigate d or standard of fenderconvicted of
a Class C, D or E fel ony is presumed to b e a favorabl e candidate for alternative sentencing options i n the absence of ev idence to the contrary .” Tenn. Code Ann. § 40-35-102(6). Thus, a defendant sentenced to ei ght (8) years or less who is not
an offender for who m incarcera tion is a priority is presume d eligible for alternative sentencing unles s su fficient evidence rebu ts the presum ption. W hile this court would agree that the eviden ce is undisputed whi ch presumes Defendant eli gible fo r-5-

an alternative sentence, t he Defendant has the burden of estab lishi ng suitabi lity for total probatio n. State v. Boggs , 932 S.W .2d 467, 477 (Tenn. Crim . App. 1996 ); see Tenn. Code Ann . § 40 -35- 303(b ). “ To meet the burden of establi shing suitabilit y for full probation, the Defendant must d emonstrate that proba tion will subserve the end s of justice and the Defend ant.” State v. Bingham , 91 0 S. W.2d 4 48, 456 (Ten n. C ri m. App. 1995 ) ( quoting Dykes , 803 S.W .2d at 259).

As Defendant admittedly concedes , a def endant’s t ruthful ness or lack of truthfulnessis an appropr iate consi deration to grant or deny probati on. Dykes , 803 S.W.2d at 259. The trial court chos e to ac credit the testi mony of Kenneth McElroy regarding Defe ndan t’s escape from the aut horiti es, and we do not hesitate to agree with its assess ment. I n additi on, we would not e that Defendant did recei ve an alternative sente nce o f split confinement i n which the t rial cour t took into account

the circumstancesof the offense a nd the D efenda nt’s continu ed crim inal cond uct. After
seven (7) years of evading t he authorit ies, a sen tence ofsixty (60) days of incarcerat ion pri o r to probation i s not greater than that deserved for the offense committed an d appears to be t he least severe measure necessary to achieve t he purposes for which t he sentence is i mposed. Tenn. Code Ann. § 40-35-103(2)and (4). This iss ue is witho ut merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________-6- THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JERRY L. SMITH, Judge