FILED

March 22, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER 1998 SESSION

STATE OF TENNESSEE, ) 

) C.C.A. No. 02C01-9805-CC-00133 

Appellee, )

) Hardin County

V. )

) Honorable C. Creed McGinley, Judge 

)

RUSSELL BARNES, ) (Aggravated Burglary)

) 

Appellant. )

FOR THE APPELLANT: 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 Attorney General

P.O. Box 484

Savannah, TN 38372

OPINION FILED: ___________________

AFFIRMED

JOHN EVERETT WILLIAMS,

Judge
1

 The appellant also pleaded guilty to unlawful possession of a firearm; driving

on a revoked license; and driving under the influence (second offense), for

which he received sentences of thirty days, sixty days, and eleven months

and twenty-nine days, respectively. These sentences are not contested.

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O P I N I O N

Russell Barnes appeals the denial of his request for alternative

sentencing. The appellant pleaded guilty on March 30, 1998 to aggravated

burglary1

 committed on or about May 20, 1997 and was sentenced in

accordance with his plea agreement to the range 1 minimum of three years, with

the manner of service to be determined 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 alternative sentencing. 

We affirm the judgment of the trial court. 

When an accused challenges the length or manner of service of a

sentence, it is the duty of this Court to conduct a de novo review on the record

“with a presumption that the determinations made by the court from which the

appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This

presumption “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 conducting a de novo review of a sentence, this 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 conduct

involved; (5) any statutory mitigating or enhancement factors; (6) any statement

made by the accused in his own behalf; and (7) the potential or lack or potential
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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 appellant

carries the burden of showing that his sentence is improper. 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 was employed

and that he provides for his fiancé, who has cancer and who was, at that time,

pregnant. He indicated that, although he had previously completed an alcohol

abuse treatment program, he still has a drinking problem. And, he stated that he

would agree to pay restitution if requested by the victim. 

The appellant also admitted, however, that he had been arrested and

convicted four times for public intoxication and once for domestic assault against

his fiancé while on bond awaiting sentencing in the present case. Additionally,

the state exhibited the appellant’s presentence report, which indicates some

fourteen prior arrests. Although the report does not state the disposition of these

arrests, the appellant admitted that twelve or thirteen of them resulted in

convictions. 

After hearing this proof, the trial court first noted that the appellant is

presumed eligible for alternative sentencing. See Tenn. 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 civilized people’s behavior.”

The appellant first argues that, because the trial court failed to consider

the eligibility requirements for a sentence to the community corrections program,

the sentence below is not entitled to a presumption of correctness. We disagree. 
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As noted above, the trial court began by acknowledging that the appellant is 

presumed eligible for alternative sentencing. However, the appellant’s proven

disregard for the law convinced the trial court that, despite this presumption of

eligibility, the appellant is not an appropriate candidate for any alternative to

incarceration. Having determined that the appellant is unsuitable for alternative

sentencing generally, we find no error in the trial court’s failure to inquire further

as to the appellant’s eligibility for community corrections specifically. 

The appellant next asserts that he is in fact eligible for community

corrections pursuant to both subsections (a) and (c) of Tennessee Code

Annotated § 40-36-106 and that the trial court erred in denying 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 denial 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 their ability to review the offender’s demeanor and

characteristics first hand, trial courts are in the best position to ascertain an

offender’s amenability to a community corrections program.” Therefore, this

Court will not disturb 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

determination that the appellant is generally unsuitable for alternative

sentencing, this issue is without merit. 

Moreover, we would not find the appellant eligible for a community

corrections sentence. Eligibility under subsection (a) requires, inter alia, that the

offender not “demonstrate a pattern of committing violent offenses.” Tenn.

Code. Ann. § 40-36-106(a)(6). The appellant was arrested for spousal abuse

while on bond awaiting sentencing in this case, and, of the fourteen arrests listed
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in the appellant’s presentence report, eight are for battery. Thus, we conclude

that the appellant’s history does indicate a pattern of violent offenses and that he

is, therefore, ineligible for consideration of a community corrections sentence

under subsection (a).

To be eligible for community corrections under the “special needs”

provision of subsection (c), an offender must first be statutorily eligible for

probation. In addition, there must be a determination 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 treatable, and (4) the treatment

of the special needs could be served best in the community rather than in a

correctional institution.” State v. Grigsby, 957 S.W.2d 541, 546-47 (Tenn. Crim.

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 remaining requirements. Nothing suggests that the

appellant’s alcohol problem contributed to this aggravated burglary. The

appellant’s previously attempted treatment was apparently 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 correctional 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 WILLIAMS, Judge
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CONCUR:

_____________________________

GARY R. WADE, Judge

_____________________________

THOMAS T. WOODALL, Judge