# FILED
April 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1996 SES SION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9607-CR-00268

) ) Hamilton County v. ) ) Hon. Douglas A. Mey er, 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 Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 William H. Cox, III District Attorney General and David W. Denney Assistant District A

ttorney General 600 Market Street, Suite 310 City-County Bldg. Chattanooga, TN 37402

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Larry Gene Rogers, was convicted upon his guilty pleas in the Hamilton County Cri minal Court of one count of theft of property valued over ten thousand dollars, a Class C felony, and two counts o f theft of property valued ove r one thousand dollars, a Class D felony. Pursuant to a plea bargain, he received three three-year sentences w ith the Class D felonies to be served concurrently, but
consecu tively to th e Class C f elony. Th e trial cou rt ordere d that th e defen dant serve eleven months, twenty

-nine days in confinement, then be placed on unsupervised probation for the remainder of the six-year effective sente nce. 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 def endant the statutory presumption in favor of alternative sentenc ing, 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 transcri pt is not before us, we deter mine the following facts from the record on appeal. The de fendant helped in the theft of cars by driving an acc

omplice to the car to be stole n, then following him to a chop shop. At the shop, the defendant was videotaped fo r 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 gui lty 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 bu rglarized a3

drug store, stealing

drugs and cash. On the ret urn 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 Knox

ville to one count of felonious possession of pharmaceutical drugs. The cour t placed him on supervised probation for five years

.
The presentence report, the federal p robation report and the testi mony at the sentencing hearing r eflect that the defendant is a thirty -one-year old high s

chool dropout working at a c

oal company in Grundy C ounty. He is a divo rced, noncustodial father of one daughter whom he is s upporting. He is liv ing with his mother, who he says is a stroke v

ictim, and he testified that he hel ped her with moral suppor t, 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 determin ing the ma nner of s ervice of the sent ences, in cluding an alternat ive form of punishment rather than confinement. It determined that the defendant was not a serious threat to societ y at that time and that he had pr obably learned his less on. However, th e trial cou rt ordere d confin ement f or eleven m onths, t wenty-nine days without work release because it concluded that the time was necessary to avoid depreciating the serious ness 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 r elative to seven automobi le thefts.
The review of the defendant’s sentencing is de novo on the record with a presumption that the trial co urt’s determinations are c orrect. T.C.A. § 40-35-401( d). As the Sentencing Commission C omments to this section note, the bu rden is now on the defendant to show that the sentencin g is improper. How ever, “the presumption of correctness which ac

companies the trial court’ s action is conditioned upon the4

affirmative showing in

the record that the trial court considered the sentenci ng 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 mu st consid er (1) the e vidence, 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 natu re 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. §§ 40-35-10 2, -103 and -210; see Ashby , 823 S.W.2d at 168 (Tenn. 1991); State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The def endant n ow conten ds that th e trial cou rt should not have considered the statutory enhancement factor regarding h is 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 tr ial court must consider the applicable enhancement and mitig ating factors in determinin g the specific sentence, including sentencing a lternatives. See State v. Hayes , 894 S.W.2d 298, 300 (Tenn. Crim. App. 1994). The trial court properly consi dered the defendant’s history of criminal conduct.
We next consider the defendant’s remaining t wo complaints together as they necessarily relate to his confinement. The defend ant contends that the trial court did not give him the benefit of the presumption of alternative s entencing under T.C.A. § 40-35-102(6) and that it relied too heavily upon a concern for the off enses’ seriousness in confining him for eleven months, twenty-nine day s. We note that the trial court made no mention of the presumption for alternat ive sentencing in it s determinations. In fact, we view the tri al court’s limited findings on the record to be less than adequate compliance with t he 1989 Sente ncing Act’s requirem ents for placin g complete fin dings and conclusions on the recor d 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, giv

en the trial court’s sta

ted reason for confinement under the record actually before us , including the trial court’s general referenc es to relevant sentencing provisio ns, we do not believe that the trial court simpl y ignored the presumption of alternative sentencing. Rather, the record refle cts that the trial court’s view of the seriousness of the defendant’s offenses outweighed al l other considerations. In this r espect, the record indicates that the trial court’s view stemmed from the extent of the defendant’s crimi nal conduct, not from the circumst ances of any given crime. Althoug h the facts of a particular offense may n ot justify confinement under T. C.A. § 40- 35-103( 1)(B) in th e face of the presu mption f or altern ative sentencing, the fact that the defendant r eceived multiple conv

ictions and is shown t

o have committed other similar offenses can reflect sufficient criminal conduct to warrant a conclusion that the presumpti on of alternative sentencing is overcome. See , e.g. , State v. Fletcher , 805 S.W.2d 785 (Te nn. Crim. App. 1991).

From our perspe ctive, such is the ca se before us. In substance, a lthough the trial court did not pr ovide as detailed or compl ete a record of findings and considerations as is contemplated by our sentencing laws, we believe that the record supports and justifies the sent ences it imposed. The defendant acted in concert with an automobile theft ring over a proven period of nine months w ith the termination of criminal activity only occurring with his arrest on federal drug charges. Under these circumstances, we cannot quarrel with the t rial court’s sentence to confinement even though the defendant exhibited the poten tial for rehabilitation and had family responsibilities.6 In consideration of the foregoing and the record as a whole , the judgments of conviction enter ed by the trial court ar

e affirmed.

______________________________ Joseph M. Tipto n, Judge CONCUR:

___________________________ Paul G. Summe rs, Judge

___________________________ John K. Byers, Sen ior Judge