FILED

December 15, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

 AT NASHVILLE

 MAY 1997 SESSION

STATE OF TENNESSEE, ) 

) C.C.A. No. 01C01-9604-CC-00159 

Appellee, )

) Coffee County

V. )

) Honorable Gerald L. Ewell, Sr., Judge

)

JAMES T. BINGHAM, )

JESSIE W. BAKER, AND ) (Sentencing)

DONALD RAY PATTERSON, )

) 

Appellants. )

FOR THE APPELLANTS: FOR THE APPELLEE:

Bingham & Baker Charles W. Burson

Andrew Jackson Dearing, III Attorney General & Reporter 

Attorney at Law

117 South Main Street Lisa A. Naylor

Suite 101 Assistant Attorney General

Shelbyville, TN 37160 Criminal Justice Division

450 James Robertson Parkway

Patterson Nashville, TN 37243-0493

Bethel Campbell Smoot, Jr.

District Public Defender C. Michael Layne

District Attorney General

Rachel E. Willis 307 S. Woodland

Assistant Public Defender P.O. Box 147

606 East Carroll Street Manchester, TN 37355

P.O. Box 260

Tullahoma, TN 37388

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS,

Judge

O P I N I O N
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The appellants, Donald Patterson, Jamie Bingham, and Jessie Baker,

were arrested for committing various crimes. Jamie Bingham was indicted on

three counts of burglary of a motor vehicle and six misdemeanor counts of theft. 

Jessie Baker was indicted on two counts of burglary of a motor vehicle and three

counts of misdemeanor theft. Donald Patterson was indicted on two counts of

burglary of a motor vehicle and two counts of misdemeanor theft. Each

appellant pled guilty to all of the indicted charges. After a sentencing hearing, all

of the appellants were classified as standard Range I offenders, but they

received different effective sentences due to the number and nature of their

individual crimes. On appeal, each of the appellants challenges the manner and

length of his sentences. Upon review, we affirm each of the appellant’s

sentences. 

When a sentencing issue is appealed, this Court shall conduct a de novo 

review with the presumption that the trial court’s findings are correct. Tenn.

Code Ann. § 40-35-401 (d) (1990); State v. Byrd, 861 S.W.2d 377, 379 (Tenn.

Crim. App. 1993). The presumption of correctness is conditioned upon an

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 conducting a de novo review of a defendant’s sentence, including the

manner in which he or she is to serve the sentence, this Court must consider: (1)

the evidence received at the sentencing hearing, (2) the presentence report, (3)

the principles of sentencing and arguments as to sentencing alternatives, (4) the

nature and characteristics of the criminal conduct, (5) any mitigating and

enhancement factors, (6) any statements made by the defendant in his or her

own behalf, and (7) the defendant’s potential for rehabilitation or treatment. 

Tenn. Code Ann. § 40-35-210 & 103 (1990). 
-3-

Tennessee Code Annotated § 40-35-103 (1)(A)-(C) (1990) sets out

sentencing considerations which are guidelines for determining whether or not a

defendant should be incarcerated. These include (1) the need to protect society

by restraining a defendant having a long history of criminal conduct, (2) the need

to avoid depreciating the seriousness of the offense, and (3) the need to deter

others likely to commit similar offenses. In reviewing a grant or denial of

probation, this Court also considers (1) the circumstances of the offense, (2) the

defendant’s criminal record, (3) his/her social history, (4) present physical and

mental condition, and (5) the deterrent effect of the sentence. Id. This Court has

previously determined that a negative finding of any one of these factors is

sufficient to support a denial of probation. State v. Baron, 659 S.W.2d 811, 815

(Tenn. Crim. App. 1983). Probation may also be denied based upon the

circumstances surrounding the offense. State v. Hartley, 818 S.W.2d 370, 373

(Tenn. Crim. App. 1991). This standard has essentially been codified at Tenn.

Code Ann. § 40-35-103 (1)(b) as the need to avoid depreciating the seriousness

of the offense. Id. at 375. 

The appellant Bingham pled guilty to three counts of burglary of a motor

vehicle, a Class E felony. He was sentenced to serve two years on community

corrections for each count. These sentences were ordered to run consecutively. 

He also pled guilty to six counts of theft of property valued under $500, a Class A

misdemeanor. He was sentenced to three consecutive eleven month and

twenty-nine day sentences to be served concurrently with three eleven month

and twenty-nine day sentences. In this appeal he contends that the trial court

erroneously imposed confinement and should have imposed concurrent

sentences. We disagree.

The record reveals that the trial judge correctly considered the principles

of sentencing. Therefore, our review is de novo with a presumption of

correctness. Tenn. Code Ann. § 40-35-401(d) (1990). 
1

The ap pellant ha s a previo us history of crim inal beha vior. Tenn . Code A nn. § 40 -35-114(1 ) (1990). 

2

The court found that the appellant’s conduct neither caused nor threatened serious bodily injury and that the

appellant assisted authorities in locating or recovering property involved in his crimes. Tenn. Code Ann. § 40-35-113(1) & (10)

(1990). 

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The trial judge found one enhancement factor1

 and two mitigating factors2

applicable to this appellant. The appellant’s allegation that he should have

received an alternative sentence is misguided. The trial judge found that the

appellant was a suitable candidate for alternative sentencing and ordered part of

the appellant’s sentence to be served on community corrections. It is well

settled that community corrections is an alternative sentence. State v. Taylor,

744 S.W.2d 919, 920 (Tenn. Crim. App. 1987). However, he did not completely

probate the appellant’s sentence and ordered consecutive sentences because of

the appellant’s history of criminal behavior, his “sorry” employment and social

history, and the need to avoid depreciating the seriousness of the offense. We

find that the evidence supports the trial court’s findings. The appellant has failed

to overcome the presumption of correctness. His sentence is affirmed.

The appellant Baker pled guilty to two counts of burglary of a motor

vehicle. He was sentenced to two years on community corrections for each

count. These sentences were ordered to run consecutively. Baker also pled

guilty to three counts of theft of property valued under $500. He received two

consecutive eleven month and twenty-nine day sentences to be served

concurrently to one eleven month twenty-nine day sentence. The appellant

contends that the confinement was inappropriate and that he should have been

classified as an especially mitigated offender. 

The record reveals that the trial judge correctly considered the principles

of sentencing. Therefore, our review is de novo with a presumption of

correctness. Tenn. Code Ann. § 40-35-401(d) (1990).
3

The ap pellant ha s a previo us history of crim inal beha vior. Tenn . Code A nn. § 40 -35-114(1 ) (1990).

4

The court found that the appellant’s conduct neither caused nor threatened serious bodily injury and that the

appellant assisted authorities in locating or recovering property involved in his crimes. Tenn. Code Ann. § 40-35-113(1) & (10)

(1990). 

-5-

In sentencing Baker the trial court found one enhancement factor3

 and

two mitigating factors4 applicable. The trial judge rejected the appellant’s

argument that he should be classified as an especially mitigated offender finding

that he had previously pled guilty to two felony charges. The trial judge did find

that the appellant should receive an alternative sentence. He split the sentence

between confinement and community corrections. In declining to completely

probate the appellant’s sentences and in ordering consecutive terms, the trial

judge found that the appellant had contradicted himself throughout the

sentencing hearing. Furthermore, he had misrepresented facts or lied in his

presentence report. It is well settled that an appellant’s lack of candor may

serve as the sole basis for denying probation. State v. Dykes, 803 S.W.2d 250

(Tenn. Crim. App. 1990); State v. Jenkins, 733 S.W.2d 528 (Tenn. Crim. App.

1987). Based upon his prior history of criminal behavior, his lack of candor, and

the need to avoid depreciating the seriousness of the offense, the trial court

ordered consecutive confinement. We find that the evidence supports the trial

court’s findings. The appellant has failed to overcome the presumption of

correctness. His sentence is affirmed. 

The appellant Patterson pled guilty to two counts of burglary of a motor

vehicle. He received two consecutive years on community corrections for each

count. He also pled guilty to two counts of theft of property valued under $500. 

He received two consecutive eleven month and twenty-nine day sentences for

these convictions. The convictions on community corrections were ordered to

run consecutively to the theft convictions. 

Patterson contends that the trial court erroneously applied nonstatutory

enhancement factors and sentenced him above the minimum of the range for his
5

The court found that the appellant’s conduct neither caused nor threatened serious bodily injury and that the

appellant assisted authorities in locating or recovering property involved in his crimes. Tenn. Code Ann. § 40-35-113(1) & (10)

(1990). 

-6-

convictions. Furthermore, he argues that his sentences should have been

ordered to run concurrently to one another. We disagree.

There exists at least one enhancer and two mitigators5 applicable to this

appellant. The appellant had a previous history of criminal behavior and had

other charges pending in other counties. Also, the trial court found that the

appellant had failed to show up at the initial sentencing hearing resulting in a

capias being issued for his arrest. This Court finds, as did the trial court, that this

illustrates the appellant’s cavalier attitude and dilutes his seriousness concerning

the serious crimes he committed. Consequently, the trial judge felt that he must

strictly sentence the appellant to deter him and others from future criminal

conduct and to avoid depreciating the seriousness of the offense. We find that

the evidence supports the trial court's findings. The appellant has failed to

overcome the presumption of correctness. His sentence is affirmed. 

After careful consideration of each appellant’s issues and arguments, we

find no error of law mandating reversal. 

AFFIRMED

________________________________

PAUL G. SUMMERS, Judge

CONCUR:

___________________________

DAVID G. HAYES, Judge
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___________________________

JERRY L. SMITH, Judge