### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. CARL E. COUCH Direct Appeal from the Criminal Court for Hardin County

No. 7807 C. Creed McGinley, Judge

No. W1999-00645-CCA-R3-CD - Decided July 28, 2000

The defendant appe

als his split sentenc

e of 60 days

confineme

nt plus 1 year and 4 months of probation for the offense

of reckless endangerment with a deadly wea pon. The defendant contends in this appeal that

the trial court erred in denying him total probation. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.
R ILEY , J., delivered the opinion of the court, in which T IPTON and W ILLI AMS , JJ., joined. Curtis F. Hopper, Savannah, Tennessee, for the appellant, Carl E. Couch. Paul G. Summers, Attorne y General and Reporter; Kim

R. Helper, Assistant

Attorney General; G. Robert Radford, Distric

t Attorney G

eneral; and John W. O

verton, Jr., Assis

tant Dist rict Attorney General, for the appellee, State of Tennessee.

OPINION FACTS The defendant had been involved in a dispute with his brother o ver the sale of land and ongoing litigatio n for gr ain payment s t hat the defenda

nt never receiv

ed. The dispute se

rved as a catalyst for the events that occurred in this case. On December 20, 1998, the defendant was deer hunting. When he returned fro m hunting, he noticed that someo

ne had vandalized

his truck. The def

endant imm ediately assumed that the vandal was his brother, the victim in this case. The defendant went to the victim’s house and, in a fit of rage, pounded on the front door trying to get into the home. The defendant eventually broke dow n the front do or and entered the home with a rifle in hand.-2-

As the defendant entered the victim’s home, the victim lockedhimself inside the b athroom. The defendant then proceeded to beat down the bathroom door with the butt of the rifle. The victim kneeled in a corner in the bathroom begging the defendant not to kill him. Once the defendant got into the bathroom, he severely beat the defenseless victim. At some point, the defendant wa s joined by his other brother, who was also charged with this offense. The defendant was indicted for the offense of aggr avat ed as sau lt, a Cl ass C fe lon y. Based upon a negotiated plea agreement, the defendant pled guilty

to reckless enda

ngerment with a

deadly weapon, a Class E felony, with an agreed sentence of 1 y ear and 6 months. The manner of service was to be determined by the tri a l co urt . Th e def end ant was give n a s pli t se nte nce o f 60 days confinement plus 1 year and 4 months probation. This appeal followed.

SENTENCING A. Standard of Review This Court’s review of thesentence imposed by the trial c

ourt is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmativeshowing in the record that the trial judge considered the s e ntencing princ iples and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Under the Criminal Sentenc ing Ref orm Act of 1989, tr

ial judges are e

ncouraged to us

e alternatives to incarceration. An especially

mitigated or stan

dard offender

convicted of a Cla

ss C, D or E felony is presumed to be a favorab l e candidate for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).
In determining if incarceration is appropriate, a trial court may consider the need to protect society by restraining a defendant hav i ng a long histor

y of crimina

l conduct, the nee

d to avoid depreciatingthe seriousness of the offense, whether confinem entis particularly

appropriate to effectively

deter others likely to commit similar offenses, and whether less restrictive measures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also Ashby , 823 S.W.2d at 169. Thereis no mathematical equ ation to be utilized in

determining sen

tencing altern

atives. Not only should the sentencefi t the offense, but it should fit the offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs , 932 S.W. 2d 467, 476 -77 (Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of alternative sente ncing. State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim.App. 1994). In summary, se

ntencing must

be determined on a

case-by- case basis, tailoring each sentence to that particular defendant based upon the facts of that case and the circumstances of that defendant. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986).-3-

B. Full Probation v. Split Confinement The defendant conte

nds that the trial c

ourt erred in fa

iling to grant him full probation a

nd in sentencing him to split confinement. We disagree. Initial ly, we note the record does not contain a transcript of the guilty plea . The fact s underlying

the offense were disputed at the sentencing hearing and were important to the trial court’s sentencing determinations. In the absence of the guilty ple a transcript which woul d provide this court with the factual basis for the plea, we may presume the trial court’s sentencing determinations are correct. State v. Keen , 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); State v. Co olidge , 915 S.W.2d 820, 826 -27 (Tenn. Crim. App. 1995). Nevertheless, there is a sufficient re

cord before this court to enable us

to conclude that th

e trial court prop

erly sente nced the defend

ant. The victim testified at the sentencing hearing that the defenda

nt entered his home

in a fit of rage with a rifle in his hand, but that the defendant threw the rifle aside and proceeded t

o beat him witha shower curtain rod. The defendant te stified similarly

. However, in a st

atement made to

the Sheriff’s Department by

the victim

shortly after the beating occurred, the victim stated that while he kneeled in the corner

of the bathroom be

gging the de

fendant not to kill h

im, the defendant

beat him withthe gun. It is apparent that t he trial judge did not find the defendant, nor the victim, to be truthful. This court has stated tha t untruthf ul testim ony during sent encing heari ngs can be the basis fora denial of probation. Dowdy , 894 S.W.2d at 305; State v. Jenkins , 733 S.W.2d 528, 5 34-3 6 (Tenn. Crim. App. 1987). Th is position is

predicated upon the belief that the candor of the defendant “is probative of his attitudes towards society and prospects for rehabilitation, and is thus a relevant factor in the sentencing process.” Dowdy , 894 S.W.2d at306. The trial judge was in a much better positi on than this court to judge the demeanor and credibility of the defendant. We y ield to hi s assessment of the defendant’s lack of candor. The trial court also not ed that both the defendant and his other brother participated in the offense; however, the

defendant was the leader in the commission of the offense. See Tenn. Code Ann. § 40-35-114(2). An enhancement factor can properly be considered

in determining whether alternative sentencing should be imposed. State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
In m aking the sentencing determination, the trial judge also considered the need to avoi d depreciatingthe seriousness of the crime. See Tenn. Code Ann. § 40-3 5-103(1)(B) . The trial judge statedthat “this is the type situation that lends itself to horrible violence; it’s a symptom of violence in our society

and cannot be ove

rlooked in its entir

ety by the court.” The r

ecord readily

supports the trial judge’s observation. The trial court has the authority to look behind the plea agreement and consider the tru e nature of the offense committed. State v. Hollingsworth , 647 S.W.2d 937, 939 (Tenn. 1983); State-4-

v. Big gs , 769 S.W.2 d 506, 507 (Tenn. Crim. App. 1988). At a minimum the facts show that the defendant actually committed the offenses of aggrava ted burglary and

aggravated

assault, both

Class C felonies. See Tenn. Code Ann. §§ 39-14- 403, 39-1 3-102 (a)(1)(B). We concur with the trial court’s finding that some time of incarce ration is necessary in order to avoid depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B). Although the defendant may be pres umed t o be a favorable candidate for alternative sentencing, the defendant has the burden of establishing suitability for total probation. Boggs , 932 S.W.2d at 477; Tenn. Code Ann. § 40-35-303(b). The defendant has not met his burden. In view of the findings by the trial court, we can only conclude that the denial of total probation was proper.

CONCLUSION Based upon our r

eview of the sent

encing recor

d, the sentence im

posed by the

trial court is affirmed.