FILED

April 22, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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 SHAWN COOK, )

)

Appellant. ) (ESCAPE)

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. McGOWN JOHN KNOX WALKUP 

113 North Court Square Attorney General & Reporter

P.O. Box 26 

Waverly, TN 37185 ELIZABETH B. MARNEY 

(On Appeal Only) Assistant Attorney General

2nd Floor, Cordell Hull Building

JOHN HARWELL DICKEY 425 Fifth Avenue North 

District Public Defender Nashville, TN 37243

MICHAEL D. RANDLES WILLIAM MICHAEL McCOWN

Assistant Public Defender District Attorney General

105 South Main Street

P.O. Box 1119 WEAKLEY E. BARNARD

Fayetteville, TN 37334 Assistant District Attorney General

(At Trial and On Appeal) Marshall Co. Courthouse, Room 407

Lewisburg, TN 37091

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Denetra Shawn Cook, appeals as of right following her

conviction and sentencing hearing in the Marshall County Circuit Court. On March

20, 1991, Defendant was charged with felonious escape when she escaped from the

Marshall County authorities after being arrested for burglary. Defendant remained

at large until 1997. On July 9, 1997, Defendant entered a plea of guilty to felonious

jail escape in violation of Tennessee Code Annotated section 39-16-605. Following

a sentencing hearing, the trial court subsequently sentenced Defendant to serve two

(2) years, to spend sixty (60) days of that sentence incarcerated with the balance to

be served on probation. Defendant contends that the trial court erred in ordering the

Defendant to serve sixty (60) days of her sentence incarcerated before placing her

on probation. We affirm the judgment of the trial court.

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 presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and characteristics of the criminal conduct involved; (e) any statutory
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mitigating or enhancement factors; (f) any statement that the defendant made on his

own behalf; and (g) the potential or lack of potential for rehabilitation or treatm ent.

Tenn. Code Ann. §§ 40-35-102, -103, and -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 factors and principles set out under the sentencing law, and

made findings of fact 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). 

At the sentencing hearing, Kenneth McElroy testified for the State. McElroy,

a former detective with the Marshall County Sheriff’s Department, investigated a

burglary case wherein he charged the Defendant with burglarizing a local residence.

After taking out a warrant for the Defendant, Defendant was arrested and

incarcerated in the Marshall County Jail. During the time that she was incarcerated,

McElroy recalled that Defendant complained of back pain and, as a result, was taken

to the local hospital in Lewisburg. McElroy and the jailer, Amy Adams, transported

Defendant to the hospital. While they were at the hospital for x-rays, the Defendant

asked to use the bathroom and escaped through another door to the bathroom. 

McElroy was no longer employed as a detective when Defendant was arrested

in 1997. Defendant gave a statement to the probation officer, to be included in the

pre-sentence report, wherein she claimed McElroy advised her to escape and
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explained how she could escape. McElroy denied this allegation in his testimony.

McElroy left the Sheriff’s Department of his own free will and while in good standing.

Jennifer Robinson prepared the presentence report of the Defendant.

Robinson stated that she personally interviewed the Defendant, finding her to be

very cooperative in giving information. Robinson was not aware of anything in

Defendant’s background which would render her a bad risk for alternative

sentencing.

The trial court recognized that the Defendant was presumed a favorable

candidate for alternative sentencing, but noted the fact that Defendant had not been

truthful with the court. The trial court stated that the Defendant elected not to take

the witness stand at the sentencing hearing and instead relied upon her earlier

statement in which she accused McElroy of advising her to escape. As aptly noted

by the trial court, truthfulness by a defendant during a sentencing hearing is a factor

that may be considered in determining the defendant’s amenability for probation.

State v. Dykes, 803 S.W .2d 250, 259 (Tenn. Crim. App. 1990). Therefore,

Defendant was ordered to serve sixty (60) days in the Marshall County jail. 

 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). Thus, a defendant sentenced to eight (8) years or less who is not

an offender for whom incarceration is a priority is presumed eligible for alternative

sentencing unless sufficient evidence rebuts the presumption. While this court

would agree that the evidence is undisputed which presumes Defendant eligible for
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an alternative sentence, the Defendant has the burden of establishing suitability for

total probation. 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 establishing suitability for

full probation, the Defendant must demonstrate that probation will subserve the ends

of justice and the Defendant.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim.

App. 1995) (quoting Dykes, 803 S.W.2d at 259).

As Defendant admittedly concedes, a defendant’s truthfulness or lack of

truthfulness is an appropriate consideration to grant or deny probation. Dykes, 803

S.W.2d at 259. The trial court chose to accredit the testimony of Kenneth McElroy

regarding Defendant’s escape from the authorities, and we do not hesitate to agree

with its assessment. In addition, we would note that Defendant did receive an

alternative sentence of split confinement in which the trial court took into account the

circumstances of the offense and the Defendant’s continued criminal conduct. After

seven (7) years of evading the authorities, a sentence of sixty (60) days of

incarceration prior to probation is not greater than that deserved for the offense

committed and appears to be the least severe measure necessary to achieve the

purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2) and

(4). This issue is without merit.

We affirm the judgment of the trial court. 

____________________________________
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THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge

___________________________________

JERRY L. SMITH, Judge