FILED

July 30, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL 1997 SESSION

STATE OF TENNESSEE, ) C.C.A. No. 03C01-9604-CR-00176

)

Appellee, ) BLOUNT COUNTY

)

VS. ) HON. D. KELLY THOMAS, JUDGE

)

DONALD R. PARTON, ) (Agg. Burglary)

)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

STEVE MERRITT JOHN KNOX WALKUP

116 E. Harper Avenue Attorney General and Reporter

Maryville, TN 37804

SARAH M. BRANCH

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

MIKE FLYNN

District Attorney General

PHILIP MORTON

Assistant District Attorney General

363 Court Street

Maryville, TN 37804

OPINION FILED: 

AFFIRMED

CHRIS CRAFT, 

SPECIAL JUDGE

O P I N I O N
2

The defendant, Donald R. Parton, appeals as of right from the denial of his

application for alternative sentencing. He entered guilty pleas to two concurrent seven

year sentences, to Aggravated Burglary and Theft over $1,000.00, as a Range II

Multiple Offender, and requested relief from confinement so that he could complete a

drug or alcohol substance abuse program. After a hearing, the trial judge denied relief.

In this appeal, the defendant contends that the trial court erred by refusing to

sentence him to six months confinement and then placement with a Community

Corrections Program. Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d),

-402(d). As the Sentencing Commission 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 court followed the statutory sentencing procedure, made findings

of fact that are adequately supported in the record, and gave due consideration and

proper weight to the factors and principles that are relevant to sentencing under the

1989 Sentencing Act, we may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However,

"the presumption of correctness which accompanies the trial court's action is

conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances." State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful

appellate review, the trial court must place on the record its reasons for arriving at the

final sentencing decision. T.C.A. §40-35-210(f) (1990). State v. Jones, 883 S.W.2d

597, 599 (Tenn. 1994).

The reasons the trial court gave for denying the defendant’s application were

that release other than confinement has been tried in the past and had proved

unsuccessful, that the defendant had a poor work history, had not cooperated with the

Department of Corrections while on parole, by moving and giving them no new address

so that they could not make home visits, and that he had a horrible criminal record

including past convictions for crimes of violence, all supported by the record. The
3

defendant is not statutorily presumed to be a favorable candidate for a sentence other

than confinement because he was sentenced as a Range II Multiple Offender, rather

than as a "standard offender convicted of a Class C, D or E felony,” pursuant to T.C.A.

§ 40-35-102(6). Even if this defendant were entitled to the presumption, the trial judge

would have been fully justified in denying him Community Corrections because of his

criminal history evincing "clear disregard for the laws and morals of society" and

"failure of past efforts at rehabilitation." T.C.A. § 40-35-102(5) and State v. Bonestel,

871 S.W. 2d 163,167 (Tenn. Crim. App. 1993).

The defendant's prior criminal history includes three prior felony convictions and

multiple violations of probation. The presentence report includes an assessment of

defendant by his previous probation officer that 

the defendant violated nearly all the terms of his probation repeatedly. He used

alcohol, stayed out to late hours, married without permission, failed to perform

community service work. His arrests ranged from aggravated rape to assault

to larceny but the victims would all agree to drop charges and they would all

subsequently be dropped. Client also had virtually no work history, did not pay

fees or court costs and adamantly refuses to go to any form of counseling, A.A.

or to work on his G.E.D.

The trial court's denial of a community corrections sentence is supported by the

record, and the defendant has failed to demonstrate that the sentence imposed by the

trial court is improper.

The judgment of the trial court is AFFIRMED.

 

CHRIS CRAFT, SPECIAL JUDGE

CONCUR:

 

JERRY L. SMITH, JUDGE

 

JOE G. RILEY, JUDGE