# FILED
June 3, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE APRIL 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9805-CR-00227 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, JOHN C. CONE, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
ROBERT T. VAUGHN JOHN KNOX WALKUP 176 Second Ave., North Attorney General & Repor ter Suite 500 Nashville, TN 37201 MARVIN E. CLEMENTS, JR. Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General S. CARRA

N DAUGHTR EY Asst. District Attor

ney General Washington Square, Suite 500 222 Second Ave., North Nashville, TN 37201
OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

Th e defendant was charged wi th vandalism, three counts of aggravate d assault, and two coun ts of assault. Pursuant to a pl ea agreement, he pled guilty to vandalism and two counts of aggrav ated assault, receiving a sentence of one year on the vandalism count and four years on each aggravated assault count,to be served concurre ntly. Following a sentenc ing hearing to

determine the manner of servic e, the trial court denied probation. The defendant now appeals, arguing that the trial court erred in denying probati on becau se it pe rceiv ed incon sistenc

ies in the defe ndant ’s statements and did not allow the defend an t to clarify the evid ence through his statutory right of allocution

prior to se ntencing. Finding no error, w e affirm.

When a defendant complains of his or her s entence, we must conduct a de novo review w ith a presumption of correctness. T.C.A. § 40-35-401 (d). This presumption, however, “is cond itioned upon the affirmative show ing in the record that the trial court considered the sentencing principles and all rel evant facts and circumstances.” State v. Ashby , 823 S.W.2 d 166, 169 (Tenn. 1991). The burden of showi ng that the sentence is improper is upon the ap pealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments.

Here, the trial court denied probation because it found the defendant was “notstraight” with the courtand court officers on variou s occasions. Specifically, the court question ed the de fendant’s representations to the court and to th e presentence report officer regarding the

facts underlying the offenses. According to the official version of the facts in the presentence report, the defend ant , as aggressor, attacked and physically harmed h is girlf riend. According to the defendant’s version of the facts in the3

presentence report, however, his girlfriend attacked him and essentially hurt herself in the process. Atthe sentencing hearing, the trial court questioned the defendant’s ver sion of the facts when com pared to the official versio n of the facts, which the State had enumerated and t he defenda nt had admitt ed were true during t he guilty plea hear ing. Defense counsel maintained that the defen dant pled guilty because he believed it was in his best interest, but

the trial court reiter

ated that the defendant submitted to the court a guilty plea, not a

best interest plea, thus admitti ng the State’s versi on of the facts. The record does not contain a guilty plea hearing transcript, without which this Court must presumethat the evidence s upported the trial court’s deter mination that the defendant misrepresented the facts underlying the offenses. See State v. Bibbs , 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991).

The record also ref l ects that the trial court found the defendant to be untruthful regarding a random drug screening the defendant failed w hile on house arrest awaiting se ntencing. According t o the sentencing hearing testimony of Michael Larko, who was i nvolved with supervisi ng the defendant while he w as on house arrest, the defen d ant failed a random drug screen for cocaine while on house arrest. W hen Mr. Larko asked the defendant whether he had us ed cocaine, the defen dant replie d that som e of his friends had been smoking crack cocaine in his house and that his po sitiv e drug test result must have been due to second-hand smoke. The defe ndant later told the presentence report office r a diffe rent stor y: that he had “unknowingl y smoked a cigarette laced with cocaine.”

Untruthfulness reflects poorly on a defendant’ s potential forrehabilitation, which is a relevant consider ation in dete rmin ing whether alternative sentencing is appropriate. T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim.1 Afte r the la st de fens e witn ess , the d efen dan t’s atto rney s tated that “s ubje ct to th e def end ant’s right of elocuti on [sic]prior t o sentencing, we have nothi ng further, ” at which p oint t he court enter tained the attor

neys’ ar guments. During t he defense argument, def ense counsel bri efly menti oned that t he defendant did not deny that the offenses occu rred and that the defendant “will discuss that with you.” Still, no requ est fo r alloc ution was ma de. S hortly th erea fter, th e trial c ourt p rono unc ed th e def end ant’s sentence. 4 App. 1994). Because untruthfulness is a vali d reason for denying probation, the trial court wasjustified in imposing incarcerati on instead of probation. See State v. Chrisman , 885 S.W.2d 834, 840 (T enn. Crim. App. 1994).

The defendant contends that the trial co urt improperly concl uded he was being untruthful without first al lowing him an opportunity to address the co urt through his statutoryright to allocution. Section 40-35-210 provides that one of the factors the court “shall” consider in impo sing a sentence is “[a]ny stat ement the defendant wishes to make in the defend ant’s own b ehalf ab out sent encing.” T .C.A. § 40 -35-210 (b)(6). In itially, we note that neit her the de fendan t nor his a ttorney cle arly expressed that the defendant wishe d to a ddress the court prior t o sentencing. The record mer ely reflects two r

ather ambiguousdeclarations that the defendant inte nded, atsome point, to address the court. 1 When it became apparent that the trial court would s

entence the defendant even though the defendant had not yet addressed the court, the defendant failed to object.

Even so, because any statement the defendant wishesto gi ve must be considered in imp osing a sentence, the trial court has a statutory dut y to entertain any statement by the defendant prior to sentencing. See § 40-35-210(b)(6). Her e, the trial court failed to do so by not providing the defendant with an opportunity to address the court, despite the fact that the defendant did not specificall y request one. Still , the trial court’s error was harmless . The de f endant is complaining that because the trial court base d its decision to deny probation on perceived inconsiste ncies in the evidence, he should have been giv

en an oppo rtunity

to clar ify the inconsistencies

in the evidence. The5

onlyway he cou ld have done so, however, wou ld have been to testify under oath and present his own evi dence, which he chose not to do. His statements during allocution, which is not sworn testimo ny, would not have carried the weight of proof and thus would not have clarified the recor d. Thus, even assuming that the defendant had been afforded the opportunity to address th e court via allocutio n, the inconsistenc ies in the evidence would remain, providing ampl e justification to deny pr obat ion. S ee Chrisman , 885 S.W.2d at 840.

Finding no reversi ble error, the trial c ourt’s judgments are affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ J. CURWOOD WITT, JR., Judge