FILED

April 17, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE 

 NOVEMBER 1996 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) No. 03C01-9607-CR-00268

 )

) Hamilton County

v. ) 

) Hon. Douglas A. Meyer, Judge 

)

LARRY GENE ROGERS, ) (Sentencing)

) 

Appellant. )

For the Appellant: For the Appellee:

William C. Killian John Knox Walkup

Number One Oak Avenue Attorney General of Tennessee

Jasper, TN 37347 and

Michael J. Fahey, II

Assistant Attorney General of Tennessee 

450 James Robertson Parkway

Nashville, TN 37243-0493

William H. Cox, III

District Attorney General

and

David W. Denney

Assistant District Attorney General

600 Market Street, Suite 310

City-County Bldg.

Chattanooga, TN 37402

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton

Judge
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O P I N I O N

The defendant, Larry Gene Rogers, was convicted upon his guilty pleas in

the Hamilton County Criminal Court of one count of theft of property valued over ten

thousand dollars, a Class C felony, and two counts of theft of property valued over one

thousand dollars, a Class D felony. Pursuant to a plea bargain, he received three

three-year sentences with the Class D felonies to be served concurrently, but

consecutively to the Class C felony. The trial court ordered that the defendant serve

eleven months, twenty-nine days in confinement, then be placed on unsupervised

probation for the remainder of the six-year effective sentence. The defendant appeals

as of right regarding his confinement, contending that the trial court erred (1) in

considering a statutory enhancement factor relative to the issue of confinement, see

T.C.A. § 40-35-114(1), (2) in not affording the defendant the statutory presumption in

favor of alternative sentencing, see T.C.A. § 40-35-102(6), and (3) in concluding that

the confinement was necessary to avoid depreciating the seriousness of the offenses. 

See T.C.A. § 40-35-103(1)(B). We affirm the trial court. 

Although the guilty plea hearing transcript is not before us, we determine

the following facts from the record on appeal. The defendant helped in the theft of cars

by driving an accomplice to the car to be stolen, then following him to a chop shop. At

the shop, the defendant was videotaped for two of the cars and his conversations were

taped. The defendant testified that he was paid one hundred dollars per car. The three

thefts for which he pled guilty occurred on January 28, February 17, and September 16,

1993. However, the defense acknowledged that he was involved in seven car thefts in

this manner.

Also, the record reflects that in September 1993, the defendant

accompanied an accomplice to Washington, D.C., where the accomplice burglarized a
3

drug store, stealing drugs and cash. On the return trip, they stole a car in Maryland and

abandoned it in Knoxville. Ultimately, the defendant was charged with drug conspiracy

and pled guilty in federal district court in Knoxville to one count of felonious possession

of pharmaceutical drugs. The court placed him on supervised probation for five years. 

The presentence report, the federal probation report and the testimony at

the sentencing hearing reflect that the defendant is a thirty-one-year old high school

dropout working at a coal company in Grundy County. He is a divorced, noncustodial

father of one daughter whom he is supporting. He is living with his mother, who he

says is a stroke victim, and he testified that he helped her with moral support, paying

some bills, and some transportation. He denied having a drug or alcohol abuse

problem.

The trial court stated that it was considering the defendant’s criminal

history in determining the manner of service of the sentences, including an alternative

form of punishment rather than confinement. It determined that the defendant was not

a serious threat to society at that time and that he had probably learned his lesson. 

However, the trial court ordered confinement for eleven months, twenty-nine days

without work release because it concluded that the time was necessary to avoid

depreciating the seriousness of the offenses. Also, the trial court indicated that the

federal district court’s grant of probation occurred without knowledge that the defendant

was about to be charged relative to seven automobile thefts. 

The review of the defendant’s sentencing is de novo on the record with a

presumption that the trial court’s determinations are correct. T.C.A. § 40-35-401(d). As

the Sentencing Commission Comments to this section note, the burden is now on the

defendant to show that the sentencing is improper. However, “the presumption of

correctness which accompanies the trial court’s action is conditioned upon the
4

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, we must consider (1) the evidence, if any,

received at the trial and 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, (5) any mitigating or statutory

enhancements, (6) any statement that the defendant made on his behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see

Ashby, 823 S.W.2d at 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229 (Tenn. 1986). 

The defendant now contends that the trial court should not have

considered the statutory enhancement factor regarding his criminal history, see T.C.A.

§ 40-35-114(1), in determining whether to confine him. However, as we previously

indicated, T.C.A. § 40-35-210(b) provides that the trial court must consider the

applicable enhancement and mitigating factors in determining the specific sentence,

including sentencing alternatives. See State v. Hayes, 894 S.W.2d 298, 300 (Tenn.

Crim. App. 1994). The trial court properly considered the defendant’s history of criminal

conduct. 

We next consider the defendant’s remaining two complaints together as

they necessarily relate to his confinement. The defendant contends that the trial court

did not give him the benefit of the presumption of alternative sentencing under T.C.A. §

40-35-102(6) and that it relied too heavily upon a concern for the offenses’ seriousness

in confining him for eleven months, twenty-nine days. We note that the trial court made

no mention of the presumption for alternative sentencing in its determinations. In fact,

we view the trial court’s limited findings on the record to be less than adequate

compliance with the 1989 Sentencing Act’s requirements for placing complete findings

and conclusions on the record for appellate review purposes. See T.C.A. §§ 40-35-
5

209(c), -210(f); State v. Jones, 883 S.W.2d 597, 599-600 (Tenn. 1994); Ashby, 823

S.W.2d at 169. 

However, given the trial court’s stated reason for confinement under the

record actually before us, including the trial court’s general references to relevant

sentencing provisions, we do not believe that the trial court simply ignored the

presumption of alternative sentencing. Rather, the record reflects that the trial court’s

view of the seriousness of the defendant’s offenses outweighed all other

considerations. In this respect, the record indicates that the trial court’s view stemmed

from the extent of the defendant’s criminal conduct, not from the circumstances of any

given crime. Although the facts of a particular offense may not justify confinement

under T.C.A. § 40-35-103(1)(B) in the face of the presumption for alternative

sentencing, the fact that the defendant received multiple convictions and is shown to

have committed other similar offenses can reflect sufficient criminal conduct to warrant

a conclusion that the presumption of alternative sentencing is overcome. See, e.g.,

State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991).

From our perspective, such is the case before us. In substance, although

the trial court did not provide as detailed or complete a record of findings and

considerations as is contemplated by our sentencing laws, we believe that the record

supports and justifies the sentences it imposed. The defendant acted in concert with

an automobile theft ring over a proven period of nine months with the termination of

criminal activity only occurring with his arrest on federal drug charges. Under these

circumstances, we cannot quarrel with the trial court’s sentence to confinement even

though the defendant exhibited the potential for rehabilitation and had family

responsibilities. 
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In consideration of the foregoing and the record as a whole, the

judgments of conviction entered by the trial court are affirmed.

______________________________

Joseph M. Tipton, Judge

CONCUR:

___________________________

Paul G. Summers, Judge

___________________________

John K. Byers, Senior Judge