# FILED
May 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9708-CR-00302 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. BERNIE WEINMAN, Judge ERIC D. HENDERSON and ) JAMES F. HILL, ) (Theft of Propert y over $1000) ) Appellants )
For the Appellants : For the Appellee : Howard L. Wagerman Charles W. Burson Attorney at Law Attorney General and Repor ter Suite 1313, 200 Jefferson Memphis, TN 38103 Marvin E. Clement s, Jr. Assistant Attorney Gener al Attorney for Eric D. H enderson Criminal Justice Div ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 Howard Brent Manis Attorney at Law Suite 1313, 200 Jefferson William L. Gibbons Memphis, TN 38103 District Attorney General Attorney for James F. Hill P. T. Hoover Asst. District Attor

ney General Criminal Justice Comple x Suite #301, 201 Poplar Street Memphis, TN 38103

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 Martin F . Ford wa s indicted a long with the appellants . He also e ntered a guilty plea to the offense of

theft of property

over $1000. 2

OPINION

The appellants, Eric D. Hen derson and James F. Hill, appeal the s entenci ng decision of the Shelby County Cr iminal Court following

their entry of guilty

pleas to one count of theft of property o ver $1000 , a class D f elony. 1 See Tenn. Code Ann. § 39- 14-105(3)(1990). Pursuant toa negotiated plea agreement, both appellantsreceived sentences of two years and six months and a fine of $3000. The manner of servi ce of each of the sentences was submitted to the trial court for determination. Follow ing a sentencing hearing, thetrial court suspended all but forty-five days of each appellant’s sentence and ordered that the time be served in the Shel by County Correcti onal Center
on wee kends. Additionally, both appellants were placed on probation for a period o f five years and were order ed to pay

restitution in the amount of $4400. In this appeal, both Henderson and Hill, contend that the trial court err oneously denied their req uests forjudicial d iversion, or, in the alternative, that the trial court improperly denied their requests for total probatio n.

After a review of t he record and the a pplicabl e law, we affirm the judgment of the trial court.
Background

The proof at the sentencing hearing est ablished that, in March 1996,James Hill
rece ived a telephone call from an individual referred to as “T-Bird,” concern ing th e possible sale of tires for Hill’ s truck. Hill res ponded th at he was interested. U pon inspection of the tires, he realized that the tires were the wrong size. Nonetheless, Hill, seizing the opportunity to make some quick money, purch ased ei ghteen or nineteen tires from “T-Bird” for

$200. Hill conceded at the sentencing hearing that he pres umed3

the tires to be stolen. Unable to haul all of the tires in his truck, Hill contacted codefendant Ford and inst ructed h im to rent a U-Haul v ehicle in which to tr

ansport the tires. The tires were part of a s hipment of one hundred and fift y tires that were previously stolen from a tractor trailer.
Hill, a close friend of Henderson, contact ed Hende rson and asked him if he knew of any person that wanted to buy approximately eighteen or nineteen tires. Henderson did not dispute the fact that he knew that the tires were stolen. Approximately one or two hours later, Henderson notified Hill th at he would participate in the sale o f the tire s. Subseq uently, Hill, accompanied by c o-defendant Ford, picked Henderson up at his residence in a r ented U-Haul truck. Henderson then directed Hill to City Wide Towing as a suggested place where the tires might be sold. Upon arrival, Henderson negotiated the sale of some of the ti res to the tire comp any. Event ually, all of the eighteen tires wer e sold by Henderson, Hi ll and Ford.

Henderson is a thirty year old diesel m echanic and truck driver. He is a high school graduate and received a certific ate of completion from the MATA Truck Dri ving School in St. Louis, Missouri

. Since graduating from high school in 1985, Hender son has maintained continuous and sta ble employ ment. He regularly attends the Mount Pisgah Middle Baptist Church an d is president of the Magnol ia Sports Association, a youth program , where he coaches peewee footbal l. Henderson testified that he has
never used illegal drugs and drinks alcohol about twice a month on the weekends. He has no prior r

ecord of cri minal convictions. At the time of this offense, Henderson was living with his fiancee and her t wo minor children. H e was also paying child support for his nine year old son from a prior relationshi p. He verified that he w as current

on all of his financial obligations

.

The appellant Hill is tw enty-nineyears old, married, and the father of a six teen month old son. He is a high school graduate, a veter an of the army, an d attended4

State Technical Institute in Memphi s for two years w ith plans to complete his education in the future. He states that he abuse s neither alcohol nor drugs. For theeightmonths preceding thesentencing hearing, H ill has been employed as a railroad piggy

backer at All Coastal Intermodal. Prior to this employment, he worked at Landstar Gemini and CSXIntermodal as a truck dri ver. Like his co-defendant,Hen derson, Hill is active in his community, serving

as vice-president of the Magnolia Sports Association, w here he also coaches peewee football. Appel lant Hill has one prior conviction in 1 992 for driving on a suspended l icense.
Reg ar ding the current offense, both appellants repe atedly admitted their involvement

in the criminal activity and their remorse and embarrassment over their actions.

At the conclusion of the proof , the trial judge found that all three co-defendants had “bad attitudes .” In so finding, the trial judge opined tha t Henderson and Hill were onlyremorseful for getting caught with the merchandi se, but not for actually committing the crime. He added that the appellants’ v ersion of the circumstances w ere less than believable and he attributed the theft of the entire shipment of one hundred and fifty tires to Henderson, Hill and Ford . The judge further remarked about the lack o f
concern for the victim, commenting upon the appellants’ failure to make restitution prior to the hearing, and the lack of co ncern fo r the serio usness of the appe llants’ o wn actions in the transactions. A sentence of split confinement to be s erved on weekends
was imposed coupled withrestitution in the amount of $4400, which represented onethird of the total value of the ei ghteen stolen tires.

When the manner of se rvice of s entence is challenged on appeal, this court conducts a de no vo

revie w conditioned upon the presumption that the determination made by the trial court i s correct. Tenn. Code Ann. § 40-35-201(d) (1996 Supp). This presumption only appli es, howev er, if the record demo nst rates that the trial court2 The sentencing heari ngs for all three in dicted defe ndants were conducted at the same time. Foll owing the i ntroducti on of allof the proof , the tr ial cour t announced it

s sentencing decision s. Rathe r than rec iting findings re levant to ea ch defe ndant, the court ge neralized its findings a s to the circ ums tances of the offe nse an d the “attitude ” of all three d efenda nts. W e note that codefendan t Ford was orderedto serve 90 r ather than 45

days due to his prior criminal histo ry. 5 properlyconsidered relevant sentencing pr inciples. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the present case, the record indicates that the trial court did not distinguish in its findings relevant factors attributable to the respective codefendan ts. 2 Our senten cing consi derations provide that the sentence imposed should f it not only the offense committed, but also the indiv idual offender

as well. See State v. Dowdy , 894 S.W.2d at 301, 305 (Tenn. Crim. App. 1994). Moreov er, there is no

indication that the trial court considered all relevant sentencing principles, including considerati on of judicial diversion. Further, the failure of a defendant, represented by counsel, to initiat e a program of

restitution prior to s

entencing and the implicati on of a defendant in crimes forwhich ins uff icient proof exists are not relevant sentencing considerations. Ac cordingly, we are unable to attach the presumption of correctness that the statut e affords.

In spite of the failure of the t r ial court to address all relevant sentencing principles, the record supports the requirement for the

service of forty-fiv

e days on the weekendsand the denial of judi cia l diversion. The tri al court found that Hill and Henderson both lack ed remor se and did not have an appro priate re habilita tive attitude. The trial court was i n a position to judge their credibility based upon their appearance and demeanor while te stifying. The trial court further found their testimony less than candid. The decision of whether to pl ace a defendant on judicial divers ion is within the sound discretion of the trial c ourt. State v. Harris , 953 S.W.2d 701, 705 (Tenn. Crim

. App. 1996). Asto the trial court’s denia l of total probation, a defendant has the b urden of establishing suitabil ity for total probation. State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Based on our de novo review, we c

onclude the sentence of the trial court was appropriate.6 The judgment of the trial court i s affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

___________________________________ WILLIA M M. BARKER, Judge

___________________________________ JOE G. RILEY, Judge