# FILED
March 22, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9805-CC-00133 Appellee, ) ) Hardin County V. ) ) Honorable C. Creed M cGinley, Judge ) RUSSELL BAR NES, ) (Aggravate d Burglary) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: HARRIET S. THOMPSON JOHN KNOX WALKUP 106 East Market Street Attorney General & Reporter Bolivar, TN 38008 ELIZABETH T. RYAN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 ROBERT “GUS” RADFORD District Attorney General JOHN W. OVERTON, JR. Assistant District A

ttorney General P.O. Box 484 Savannah, TN 38372

OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIA MS, Judge1 The appellant also pleaded gui lty to unlawful posses sion of a firearm; driving on a revoked license; and driving under the influence (second offense), for which he received s

entences of thirty days, sixty days, and el even months and twenty-nine day

s, respectively. These sentences are not contested.

-2- O P I N I O N Russell Ba rnes app eals the d enial of his reques t for alte rnative sentencing. The appellant pleade d guilty on March 30 , 1998 to aggravated burglary 1 committed on or about May 20, 1997 and was sentenced in accordance with his pl ea agreement to the range 1 mini mum of three years, with the manner of service to be deter mined at a subsequent sentencing hearing. At that hearing, the trial court found that the appellant is not a suitable candidate for alternative sentencing

and ordered confinement in the Tennessee Department of Corrections. The appellant’s sole issue on this appeal is whether the trial court erred in denying alt

ernative sentencing.
We affirm the judgment of the trial court.

When an accus

ed chall enges t he length or man ner of se rvice of a sentence, it is the duty o f this Court to conduct a de novo review on the record “with a presumption that the determinations made by the c ourt from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). Th is presumption “is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principl es and all relevant facts a nd circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, th is Court must consider (1) the evidence, if any , received at the trial and 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 condu ct involved; (5) any

statutory mitigatin g or enhancement factors; (6) any statement made by the accused in his ow n behalf; and (7) the potential or lack or potential-3- for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, - 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appell ant carries the burden of showi ng that his sentence is i mproper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
At his sentencing hearing , the appellant testified that he w as employed and that he provides for his fiancé, who has cancer and w ho was, at that time, pregnant. He indicated that , although he had previous ly completed an alcohol abuse treatment program, he sti ll has a drinking pr oblem. And, he stated that he would agree to pay r

estitution if requested by the victim.
The appellant also admitted, how ever, that he had been arrest ed and convicted four times for public intoxication and once for dom estic assault against his fian cé while on bond awai ting sent encing in t he prese nt case. A ddition ally, the state ex

hibited the appellant’s

presentence

report, which indica

tes some fourteen prior arrests. Although the report does not state the disp osition of these arrests, the appellant admitted that twelve or thirteen of them resu lted in convictions.
After hearing this proof, the trial court first noted that the appellant is presumed eligible for alter native sentencing. SeeTenn. Code Ann. § 40-35-102. However, based on the appellant’s lengthy criminal record, the court “inescapabl[y] conclu[

ded] that he’s not an appropriate candidate for any type of alternative sentencing . He has very little respect for the law or any rules that would govern civ

ilized people’s behav

ior.”
The appellant first argues that , because the trial court fail ed to consider the eligib ility re

quirements

for a sentenc

e to the communi

ty correc tions prog ram, the sentence below is not entitled to a presumption of corr ectness. We disagree.-4- As noted above, the trial court began by acknowledging that the appellant is presumed eligible for alter native sentencing. Ho

wever, the appellant’ s proven disregard for the law

convinced the trial c

ourt that, despite this pres umption of eligibility, the appellant is not an appropriate candidate for any alternative to incarcer ation. Ha ving deter mined th at the ap pellant is unsuit able for alternat ive sentencing generally , we find no error in the trial court’s failure t o inquire further as to the appellant’s elig ibility for community corrections specificall

y.
The appellant next asserts that he is in fact eligibl e for community corrections pursuant to both subsections (a) and (c) of Tennessee Code Annotated § 40-36-106 and that the tri al court erred in denyi ng such a sentence. Again, we do not agree

. Even if the appellant were eligible for community corrections, we would not find the trial court’s d enial of that sentence erroneous. As this Court has previously explained, an offender’s eligibility for community corrections does not amount to entitlement

. See State v. Grigsby , 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997). “[G]iven thei r ability to rev iew the offender’s demeanor and characteristics first

hand, trial courts are i n the best position to ascert ain an offender’s amenability to a community corrections program.” The refore, this Court will not dis

turb a trial court’s decision in that regard absent a clear showing of abuse of discretion. Id. Because we find no error in the trial court’s determi nation t hat the a ppellan t is genera lly unsuit able for alternat ive sentencing, this issue i s without merit.

Moreover, we w

ould not find the appellant elig ible for a community corrections sentence. El igibility under s ubsection (a) requir es, inter alia , that the offender not “demonstrate a pattern of committi ng violent offenses.” Tenn. Code. Ann. § 40-36-106(a)(6). The appellant was arrested for spou sal abuse while on bond awaiti ng sentencing in this case, and, of the fourteen arrests l isted-5- in the appellant’s presentenc e report, eight are for batt ery. Thus, we conclud e that the appellant’s history does indicate a pattern of vi olent offenses and that he is, therefore, ineligible for consideration of a commu nity corrections sentence under subsection (a).
To be eligible for community corrections under the “special needs” provision of subsection ( c), an offender must first be statutor ily eligible for probation. In addition, there must be a determina tion that “(1) the offender has a history of chronic alcohol, drug abuse, or mental health problems; (2) these factors were reasonably related to and contributed to the offender’s criminal conduct, (3) the identifiable special need(s) are trea table, and (4) the treatment of the special needs could be ser ved best in the community rather than in a correctional institution.” State v. Grigsby , 957 S.W.2d 541, 546- 47 (Tenn. Cri m. App. 1996).
The appellant is statutorily eligible for probation, see T.C.A. § 40-35-303; and he has a history of alcohol abuse. However, the record before us simply does not establish any of the r emaining requirements. Nothing suggests tha t the appellant’s alcohol problem contributed to this agg ravated burglary . The appellant’s previousl

y attempted treatment was app arently unsuccessful, and he offers nothing to suggest that his problem is now treatable. And, even if treatable, there is nothing to suggest that his treatment would be better served in the community rather than a co rrectional institution . The appellant has failed to carry his burden of showing that his sentence is improper.
The judgment of the trial court is AFFIRMED.

____________________________ JOHN EVERETT W ILLIAMS, Judge-6- CONCUR:

_____________________________ GARY R. WADE , Judge

_____________________________ THOMAS T. W OODALL, Judge