# FILED
July 30, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE APRIL 1997 SESSION

STATE OF TENNESSEE, ) C.C.A. No. 03C01-9604-CR -00176 ) Appellee, ) BLOUN T COUN TY ) VS. ) HON. D. KELLY THOMAS, JUDGE ) DONALD R. PARTON, ) (Agg. B urgla ry) ) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : STEVE MERRITT JOHN KNOX WALKUP 116 E. Harper Avenue Attorney Gen eral and Repor ter Maryv ille, TN 37804 SARA H M. BRA NCH Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 MIKE FLYNN Distric t Attorney General PHILIP MOR TON Assistant D istrict A

ttorney Gener

al 363 Court Str eet Maryv ille, TN 37804

OPINI ON FI LED:

AF FIRMED

CHRIS CR AFT, SPECIA L JUDGE

O P I N I O N2 The defendant, Don ald R. Part on, appeals as of right from the den ial of his application for alternativ e sentencing. He entered g uilty pleas to two concur rent seven year sentences, to Ag gravated Burglary and Theft over $1,000 .00, as a Rang e II Multiple Offender, and reques ted relief from confinement so that he coul d complete a drug or alcohol subst ance ab use program . Afte r a h eari ng, the t ria l ju dge deni ed r eli ef. In this appeal, t he def endant contends that the trial c ourt erred by refusing to sentence him to six months con finement and then placement with a C ommunity Correction s Program. App ellate rev iew of sentenc ing is de novo on the record with a presumption that the trial court's determination s are correct. T.C .A. §§ 40-35-401(d), -402(d). As the Sentenci ng Commissi on Comments to these sections note, the burden is therefore now

on the appealing party to show that the sentencing is improper. This
means that if the trial cour t followed thestatutory

sentencing procedure, made findin gs of fact that are adeq uately suppor ted in the reco rd, and gav e due considerati on and proper weight to the factors and principles that are rel evant to sente ncing under the 1989 Sentencing Ac

t, we may

not disturb t he sentence even if a different result were preferred. State v. Fl etcher , 805 S.W .2d 785, 789 (Tenn . Crim. App. 1991). However, "the presumption of correctn ess which acco mpanies the trial court's action is cond itio ned upon the a ff irma tive showing in the recor d that the tria l court cons idered the sentencing principles and all rel evant facts and circ umstances." State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). In th is respect, for th e purpose of meaning ful appellate review, the trial court must place on the record its reasons for arriv ing at the final sentencing decision. T.C.A. §40-35-2 10(f) (1990). State v. Jone s , 883 S.W.2d 597, 599 (Tenn. 1994). The rea sons

the t ria l co urt

gave fo r den ying the defendant’s applicatio n were that release other

than confinemen t has b een tried in t he past and had prov ed unsuccessful, that the defendant had a poor wor k history , had not cooperat ed with the Departmentof Correction s while on parole, by moving and givi ng them no new address
so that they could not make hom e visits, and that he had a horrible criminal record including past convi ctions for cr imes of violence, a ll supported by the reco rd. The3

defendant is not statut orily p resumed to be afavorable candidate for a se ntence other than confinement be cause he was sentenced as a Range II Multiple Offender, rather than as a "standard offender convicted of a Class C, D or E felony,” pur suant to T.C.A. § 40-35-102(6). Even if th is defe ndant were entit led to th e presum ption, the trial judge would have been fully justified in denying him Community Corrections because of his criminal history evincing "clear disr ega rd for the laws and morals of soc iety" and "failure of past efforts atrehabilitat ion." T.C.A. § 40- 35-102(5) and State v. Bones tel , 871 S.W . 2d 163,167 (Tenn . Crim. App. 1993). The defendant's prior

criminal history

includes three prior felony convicti ons and multiple violati ons of probation. The pr esentence repor

t inc ludes an assess ment of defendant by his p revious p robation officer that the defendant violat ed nearly al l the terms of his probation repeatedly. H e used alcohol, stayed out t o late hours, mar ried without per mission, failed to perform community

servic e work. His arres ts ranged from aggravated rape to assault to larceny but the vic

tims woul d all agr ee to drop charg es and they w ou ld al l subsequently be dropped. Cl ient also had v irtually no work hi stor y, did not pay fees or court co sts and adamantly refuses to go to any

form of counseling , A.A. or to work on his G.E.D. The trial cour

t's denial of a community correctio ns sentence is supported by

the record, and the defendant has failed to demonstrate that the sentence impos ed by the trial court is improper. The judgment of the trial court is AFFIRMED.

CHRIS CR AFT, SPECIAL JU DGE

CONCUR:
JERRY L. SMITH, JUDG E

JOE G. RILEY , JUDGE