# FILED
July 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT JACKSON D ECEMBER 1996 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9512- CR-00363

) ) Shelby Cou nty v. ) ) Honorable Ar

thur T. Bennett, Ju dge ) DAVID LEWIS, ) (Denial of Pr obation) ) Appellant. ) For the Appell ant : For the Appell ee : Marvin E. Ballin Charles W. Burson Mark A. Me sler Attorney Gen eral of Tennessee 200 Jefferson Avenue and Suite 1250 Cyril V. Fraser Memphis, TN 38103 Assistant Att orney Gener al of Tennessee 450 James Roberts on Parkway Nashvil le, TN 37243-0493 John W . Pierotti, Jr. Distric t Attorney General and Jennifer Nichols Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue Memphis, TN 38103

OPINION FILE D:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N The defendant, David Lewis, appea ls as of rig ht from the trial court’s or der denying hi m probation. The defendant w as convic

ted upon guilt

y pleas i n the Shelby Coun ty Crim inal Court of a ttem pted thef t over one t hou sand dolla rs, a C lass E fe lony, two counts of theft over five hundred dollar s, a Class E felony, two counts of theft under five hundred dol lars, a Cl ass A misdemeanor, and unlawfull y carry ing a w eapon, a Class C mi sdemeanor. Purs uant to a plea ag reement, he wa s sentenced as a Range I, standard offender to an effectiv e sentence of tw o years i n the Memphis C ounty Correction al Facili ty wi th the court to determine the manner of service . The sole iss ue for our rev iew is whether the trial cour t erred by

denying the defendant’s req uest for probation.

The record reflec ts that the defendant offered hi s servi ces as a repai rman to each of the vi ctims of his cr imes between January 30, and March 5, 199 4. In one instance, the defendant was blamed for causing the damage that needed repair. In another , he w as acc used of t aking a box that c ontain ed a tho usand d ollar s from a house he had entered to give an estimate on some w ork that needed done. In the other theft cases, the defendant was c harged w ith accepting money for his service s without e ver comple ting them . The de fend ant was cha rged with un lawfully ca rrying a weapon because of a pistol he had i n his car at the time of his ar rest.

At the hearing on his motion for a suspended sentence , the defendant denied any w rongdoing . However, he admitted th at he did not compl ete all the work he had agreed to do and said that he felt like he ow ed money back t o some of the vic tims. In denying probation, the court noted the defendant’ s criminal history and that all of the victims were elder ly and conc luded that confinement w as necessary

to deter others

and to avoid depr

eciating t he seriousness of the offenses.3 Appellate review of sentencing is de novo on the record with a presumption that t he trial cour t’s determinat ions are cor rect. T.C.A. §§ 40-35-401(d) and -402(d). As the Sentencing Commission C omments to these sec tions note, the burden is now on the appealing party to show that the sente ncing is improper. This
means that if the trial court f ollows the statuto ry senten cing proce dure, m akes f indings of fact that are adequately suppor ted in the reco rd, and giv es due consider

ation and proper application of the factors an d principle s that are rel evant to sente ncing under the 1989 Sentencing Act, we may not disturb the se ntence even if a diff erent result were preferred. State v. Fl etcher , 805 S.W .2d 785, 789 (Tenn . Crim. App. 1991).

Although probation must b e automatically considered, the d efendant is not entitled to probation as a mat ter of law. See T.C.A. § 40-35- 303(b); Sentenci ng Commission Comment s to T.C.A. § 40- 35-303; Fletcher , 805 S.W .2d at 787. However, as the defendant does not meet the descrip tion of one who s hould be given first prior ity regarding a sentence inv olving incarcerat ion under T.C.A. § 40-30-102(5) , and has been convict ed of Class E feloni es as a standar d offender, he is pres umed to be a favorable candi date for alternati ve sentenci ng options i n the absence of ev idence to the contrary. T.C.A. § 40-35-102(6).

In this respe ct, the presumpti on in favor of al ternative sentencing may be rebu tted if an y of t he f ollo wing f acto rs ou tweigh the d efe nda nt’s reha bilit ative capabilities : (1) “c onfinement is necess ary to pr otect society

by restr aining the defendant who has a long histor y of crimina l conduct,” ( 2) “confinement i s necessary to avoid deprec iating the s eriousness of the offense or confinement is pa rticularl y suited t o provide an effective deterrence to others l ikely to commit simil ar offenses,” or ( 3) “measures les s restric

tive than c onfinement have freq uently or recently been applied unsuccessfully

to the defendant.” T.C .A. § 40-35-103( 1); see also State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991); Fletcher , 805 S.W.2d at 787-88.1 W e note t hat t he gui lt y pl ea heari ng is not part of the r ecord on appea l. Often, evi dence of t he cir cumstances surroundi ng the of fenses and t he defendant ’s v iew of his cu lpabi li ty are pr esented at that heari ng. Thus, potent ial ly rel evant tri al court r ecords are not bef ore us when we ar e asked to r evi ew the si gnif icance o f th e defendant ’s cl aims of i nnocence and t he tr ial court ’s v iew of those cl aims at t he sentenci ng heari ng. 4

In this case, the record sup ports the tri al court’s decision to deny probation. By

committing fiv

e theft-related offenses over a two-month period, t he defendant demonstrated a s ustained intent to violatethe law. See State v. Byrd , 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993) . Throughout the sentencing hea ring, the defendant denied any wrongdoing, and the trial court questioned his truthf ulness. 1 The defendant’s untruthfulnes s and unwil lingness t o accept respons ibility for his action s bode poorly for his rehabil itation. See U.S. v. G rayson , 438 U.S. 41, 52, 98 S. Ct. 2610, 2616 (1978); State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983); Byrd , 861 S.W.2d at 380. In our view , the defendant’s lac k of candor coupled with the circumstances

of the offenses justify

the denial of probat ion.

Accordingl y, the judg ment of the trial court is affirmed.

Joseph M. Tipton, Judge CONCUR:

Joe B. Jo nes, Pre siding Jud ge

Jerry L. Smith, Judge