### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs N

ovember 15, 2000
STATE OF TENNESSE v. MICHAEL HE RNDON
Appeal as of Right from the Circuit Court for Montgomery County

No. 39163 John H. Gasaway, III, Judge

No. M2000-01080-CCA-R3-CD - Filed February 16, 2001

The appellee, Micha

el Herndon, was f

ound guilty

by a jury in the Montgomery

County Circuit Court of one count of burg

lary of an a

utomobile, a class

E felony, on

e count o f theft of property under $500, a class A misdemea nor, and one coun

t of public drunken

ness, a class C misdemeanor. The trial court sentenced

the appellee as a

Range I off

ender to the follo

wing terms of proba tion: two yearsfor the burglary conviction, eleven months and twenty -nine days for the theft conviction, and thirty days for the public drunkenness conviction. The trial court further order ed the appel lee to
serve his sentences for the theft and public drunkenness convictions concurrently with each other but consecutively

to the sentence for the burglary conviction. On appeal, the State raises the following issue for our review: whether the trial court inc

orrectly s entenced the ap

pellee to probation. Based upon our review o

f the record and

the parties’ brie

fs, we affirm the

judgment of the tr

ial court.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.
Paul G. Summers,

Attorney Ge

neral and Report

er, David H. Find

ley, Assista

nt Attorney G

eneral, and Lance Baker, Assistant District Attorney General, for the appellant, State of Tennessee.
Collier W. Goodlett, Clarksville, Tennessee, for the appellee, Michael Herndon.

OPINION
I. Factual Backgr

ound A jury in the Montgomery County Circuit Cou rt found th e appellee, Michael Herndon, guilty of on

e count o f

burglary of an automobile, a class E felony , one count of theft of propertyunder $500 , a class A misdeme anor, and one co

unt of public drunk

enness, a class C misdemeanor. At the sentencing hearing, the State produced evidence that the appellee had a n extensive criminal history , that he had demonstrated a previous unwillingness to comply with the terms of release into the community, and that he committed the instant offense while on parole for1 Neither the St ate nor the appell

ee contest t

he length of the appellee’ s sentence.
-2- a prior felony

conviction. The a

ppellee admit

t ed that he had a lengthy criminal record, much of which was alcohol related. However, the appellee testified that, while awaiting sentencing for these offenses, he had successfully completed a six-month rehabilitation program at the Hope Center in Lexington, Kentucky, and had been working at the Hope Center a s a c ou nselor for appro

ximately four months. The appellee asserted that the program at the Hope Center had chang ed his life.

The trial court found

that, regardle

ss of the appellee ’s criminal past , the appellee nonetheless

had the potential for rehabilitation. Accordingly, the trial court sentenced the appellee
as a Range I offender to the following terms of probation: two y ears for the burg lary convict ion, eleven months and twenty-nine days for the theft c onviction, and thirty days for the publi c drunkenness

conviction. The trial court further ordered the appellee to serve his sentences for the theft and pub lic dru nke nne ss c onv ict ion s co ncu rren tly wit h each other but consecutively to the sentence for the burglary conviction. The appellee’s proba tion was conditioned on the appe llee’ s continued parti cipation in the Hope Center program. The trial court stated that the appellee was
re quired to abide by the Hope Center curfew of 10:30 p.m. and to follow all of the rules and regulations at Hope Center as part of his probation. The State now raises the following issue for our review: whether the trial court incorrectly sentenced the appellee to probation.
II. Analysis This court reviews challenges to the manner of service of a sentence

de novo. Tenn. Code Ann. § 40-35-401(d) (1997). 1 Moreover, if the record revea

ls that the trial court ad

equately considered

sentencing principles and all relevant facts and circumstances, this court will accord the trial court’s determinations a presumption of correctness. Id. ; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting our d e novo review, thi

s court considers the following factors: (1) the evidence, if any, received at the trial and the sentenc ing hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature a nd characteristics of the criminal conduct involved; (5) evidence and information offered by the parties
on enhancement and mitigating factors; (6) any statement by

the appellee in hi

s own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1 997 ); see also Ashby , 823 S.W.2d at 16. Furthermore the appellant, in this case the S tate, bears the burden of demonstrating to this court the impropriety of the sentence imposed. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

The State argues that the trial court incorrectly found that the appellee was an appropriate

candidate for probation. Specifically, the State contends that, considering the appellee’s extensive criminal h

i story consisting of three felony c onvictions and twenty-eight misdemeanor convictions,

the appellee’s p

ast unsuccessful

attempts at rehabilitation, and the “[appellee’s] re peated attempts to deflect

responsibility for his crimes during the sentencing hearing,” the trial court

should have imposed a sentence of incarceration upon the appellee, not probation.-3- We begin our analy

sis by deter

mining if the appellee is statutorily presumed to be a suitable candidate for an alternative sentence. See State v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995), overruled on other groun ds by State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). Initially we note that probation is a form of alternative sentencing. Tenn. Code Ann. § 40-35- 104(c)(3) (1997). To be entitled to the statutory presumption of alternative sentencing, the appellee must meet the following criteria: (1) the appellee must have been convi cted of a class C, D or E felony; (2) the

appellee must have been sentenced as a standard or mitigated offender; and ( 3) the appellee must not “possess[] [a] criminal histor[y] evinc ing a clear disr

egard for the

laws and morals of society, and evincing a failure of past efforts at r ehabilitation.” Tenn. Code Ann. § 40-35-102(5) and (6 ) (199 7). Because the appellee’s extensive criminal history could be said to indicate a disregard for the laws of soc

iety and bec

ause the appellee admits that he has failed at past efforts at rehabilitation, the appelle e is not entitled to a statutory presumption in favor of alternative sentencing.
However, because the trial court imposed a sentence of less than

eight years upon the appellee, the appellee is sti ll eligible for

probation. Tenn. C

ode Ann. § 40-35-3 03(a) (1997). As this court has stated [w]hile not controllin

g the discretion

of the sentencing

court, the followi

ng criteria shallbe accorded weight: “(1) the nature and [circumstances] of the c on duct involved; ( 2) the [appellee’s] potential or lack of potential for rehabilitation; (3) whether a sentence of

probation will undu

ly depreciate the seriousness of the offense; and (4) whether a sentence other than probation would provide an effective deterrent to others likely to commit similar crimes.” Statev. Kirkland , No. 03C01-9606-CR-00248, 1997 WL 55936, at *5 (Tenn. Crim. App. at Knoxville, February 12, 1997)(citations omitted)(alteration in original).

The record revea

ls that the trial co

urt consid

ere d the appellee’s criminal past and failures at rehabilitation . However, the tr ial court accre

dit ed the te stimony of the appellee concerning the positive role that the Hope Center had in his change

d lifestyle,

finding that ther

e is
a reasonable likelihood that the appellee can be rehabilitated. The trial court in its discretion found that it was in the best interest of the appellee and society tha

t the appellee be

sentenced to

probation instead of incarceration. Because the record reflec ts tha t the trial court c

orrectly c onsidered all appr opriate

sentencing prin

ciples and conside

rations, we are

bound to uphold the tr

ial c ourt’ s decision, even if we would have preferred

a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1 991). This issue is w ithout merit.

III. Conclusion Based upon the foregoing, we affirm the judgment of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE