# FILED
December 15, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NA

SHVILLE MAY

1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9604-CC-00159 Appellee, ) ) Coffee County V. ) ) Honorable Gera ld L. Ewell, Sr., Jud ge ) JAMES T. BING HAM, ) JESSIE W. BAKER, AND ) (Sentencing) DONALD RA

Y PATTERSON , )

) Appellants. )

FOR THE APPELLANTS: FOR THE APPELLEE: Bingham & Baker Charles W. Burson Andrew Jackson Dearin g, III Attorney General & Reporter Attorney at Law 117 South Main Street Lisa A. Naylor Suite 101 Assistant Attorney Gener al Shelbyville, TN 37160 Criminal Justice Div ision 450 James Robertson Parkwa y 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. SUMM ERS, Judge

O P I N I O N-2- The appellants, Donald Patterson, Jamie Bingham , and Jessie Baker, were arrested for committi ng various crimes. Jamie Bingham was indi cted on three counts of burglary of a motor vehicle and six misdemeanor counts of theft. Jessie Baker was indi cted on two counts of burgl ary of a motor vehicle an d three counts of misdemeanor theft. Donald Patter son was indicted on tw o 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 clas sified 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 chal lenges the manner and length of his sentences. Upon review, we affirm each of the appellan t’s sentences.
When a sentencing issue is appealed, this Court shall conduct a de novo review with the presumption that the trial c ourt’s findings are cor

rect. Tenn. Code Ann. § 40-35-401 (d) (1990); State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The presumptio n of correctness is conditi oned upon an affirmative showing, i n the record, that the trial court considered the sentenci ng principles and all rel evant facts and circumstances

. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
In conducting a de novo review of a defendant’s sent ence, 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 repor t, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristic s of the criminal conduct, (5) any mitigating and enhancement factors, (6) any s tatements made by the defendant in his o r 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) s ets out sentencing considerations which are guideli nes for determining whether or not a defendant should be incarcerated. Thes e include (1) the need to prot ect society by restraining a defendant having a long histor y 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 revi ewing a grant or d enial of probation, this Court als o considers (1) the cir

cumstances of the offense, (2) the defendant’s criminal record, (3) his/her social hi story, (4) present phy sical and mental condition, and (5) the det errent effect of the sentence. Id. This Court has previously determined that a negative finding of any one of these fa ctors is sufficient to support a denial of probation. State v. Baron , 659 S.W.2d 811, 815 (Tenn. Crim. App. 1983). Pro bation may also be denied based u pon the circumstances surrounding the offense. State v. Hartley , 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). This s tandard 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 guil ty to three counts of burgl ary of a motor vehicle, a Class E felony. He was sentenced to ser ve two years on c

ommunity 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 sentenc ed to three consecutive el even month and twenty-nine day s

entences to be served concur rently 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 concur rent sentences. We disagree.

The record reveals that th e trial judge correc tly considered the pri nciples 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 fo und that the appellant

’s conduct

neither caused nor th reatened ser ious bodil

y injur y and that t

he appellant

assist ed authori

ties i n locati ng or recover ing proper

ty invol ved in his crimes. Tenn.Code Ann. § 40-35- 113(1) & (10 ) (1990). -4- The trial judge found one enhancement factor 1 and two mitigating factors 2 applicab le to this appellan t. The ap pellant ’s allegat ion that he should have received an alternativ

e sentence is misguided. The trial judge found that the appellant was a suitable candidate for alternative s entencing and ordered part of the appellant’s sentence to be served on community corrections. It is well settled that community corr ections is an alternativ

e sentence. State v. Taylor , 744 S.W.2d 919, 92 0 (Tenn. Crim. App. 1987). However, he did not completely probate the appellant’s sentence and ordered consecutive se ntences because of the appellant’s history

of criminal behavior, hi s “sorry” employ ment and social hi stor y, an d t he

ne ed to av oi d d ep re ci at in g t he

se ri ou sn es s of t he

of fe ns e. We find that the evidence supports the trial court’s findings. The appellant has failed to overcome the presumption of cor rectness. His sentence i s affirmed.
The appellant Baker pled guilty to two counts of burg lary of a motor vehicle. He was sentenced to two years on community corrections for each count. These sentences were o rdered to run consecutiv ely. Baker also pled guilty to th ree coun ts of the ft of pr operty valu ed under $500. He r eceived two consecutive eleven month and twenty-nine day sentences to be served concurrently to one elev en month twenty-nine day sentence. The appellant contends that the confinement was i nappropriate and that he should hav e been classified as an especiall y mitigated offender.

The record reveals that th e trial judge correc tly considered the pri nciples 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 fo und that the appellant

’s conduct

neither caused nor th reatened ser ious bodil

y injur y and that t

he appellant

assist ed authori

ties i n locati ng or recover ing proper

ty invol ved in his crimes. Tenn.Code Ann. § 40-35- 113(1) & (10 ) (1990). -5- In sentencing Baker the tr ial court found one enhancement factor 3 and two mitigating factors 4 applicable. The trial judge rejected the appellant’s argument that he should be clas sified as an especially mitigated offender finding that he had previously pled guilty to tw o felony charges. The tri al judge did find that the appellant should receive an alternative sentence. He split the sente nce between confinement and community corrections. In de clining to completely probate the appellant’s sentences and in ordering consecuti ve terms, the trial judge found that the appellant had cont radicted himself throughout the sentencing hearing. Furthermore, he had misrepresented fa cts or lied in his presentence report. It is well settled that an appel lant’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 beha vior, his lack of candor, and the need to avoid depreciating the seriousness of the of fense, the trial court ordered consecutive confinement . We find that the evidence supports the tri al court’s findings. The appell ant has failed to overcome the pr esumption of correctness. His sent

ence is affirmed.
The appellant Patterson pled gui lty to two counts of bur glary of a motor vehicle. He received two consecutive years on community corrections for each count. He also pled guil ty to two counts of theft of proper ty valued under $500. He received two con secutive eleven month and t wenty-nine day se ntences for these convictions. The conv ictions on community corr ections were ordered to run consecutively t

o the theft convictions.
Patterson contends that the trial court erroneously applied nonsta tutory enhancement factors and sentence d him above the minimum of the range for his5 The court fo und that the appellant

’s conduct

neither caused nor th reatened ser ious bodil

y injur y and that t

he appellant

assist ed authori

ties i n locati ng or recover ing proper

ty invol ved in his crimes. Tenn.Code Ann. § 40-35- 113(1) & (10 ) (1990). -6- convictions. Further

more, he argues that his sent ences should have been ordered to run concurrentl y to one another. We disagree.
There exists at least one enhancer and two mitigators 5 applicable to this appellant. The appellant had a prev ious history of crimina l behavior and had other charges pending i n other counties. Also, the t rial court found that the appellant had failed to show up at the initial sentencing hearing resulting i n 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 m ust strictly sentence the appellant to deter him and others from future criminal conduct and to avoid depreci ating the seriousness of the offense. We find that the evidence supports the tr ial court's findings. The appellant has failed to overcome the presumption of corr ectness. His sentence is affirmed.

After ca reful co nsiderat ion of ea ch appel lant’s iss ues and a rguments , we find no error of law mandating reversal.

AFFIRMED

________________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

___________________________ DAVID G. HAYES, Jud ge-7- ___________________________ JERRY L. SMITH, Jud ge