1 The Defen dant do es not co ntest the trial court’s im position o f consec utive senten ces.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs A pril 9, 200 2

STATE OF TENN ESSEE v. SHANTALAVETT MCKINN EY

Appeal from the Circuit Court for Tipton County No. 4122 Joseph H. Walker, Judge

No. W2001-01832-CCA-R3-CD - Filed May 8, 2002

The Defend ant, Shanta Lavett McKinney, pled guilty to one count of automobile burglary; one count of theft over $1000; one count of misdemeanor assault; and one count of thef t under $500. He was sentenced as a Range I standard offender to one year, six months for the auto burglary; three years for the thef

t over $10 00; eleve

n months, tw enty-nin e days fo r the ass ault; and

eleven m

onths, twenty-nine days for the theft under $500, all sentences running conc urrently. Und er separa

te indictmen t, the Defendant pled guilty to four counts of aggravated burg lary; one count of theft between $500 and $1000; and t hree counts of theft under $500. He was sentenced a s a Range I standardoffender to five years for each of the burglaries; one yea r six months for the theft over $500; and eleven months, twenty-nine days for each of the thef ts under $500. These sentenc e s were ordered to run concur

rently with each other, but consecutively to the previously mentioned
sentenc es, for an effectiv e sentence of ei ght year s in the De partmen t of Corre cti on. I n this direct appeal the Defe

ndant cha llenges b oth the lengt

h of his felony sentences 1 and the trial court’s denial of an alternative sentence. We a ffirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the c o urt, in which D AVID G. H AYES and J AMES C URWOOD W ITT , J R ., JJ., joined.

Gary F. Antrican, Somerville, Tennessee, for the appe llant, Shanta Lavett McKinney.

Paul G. Summers, Attorney General and Reporter; Renee W . Turner, Assistant Attorney Genera l; and Elizabeth Rice, District Attorney General, for the appellee, State of Tennessee.-2- OPINION

The Defend ant’s fo ur aggra vated bur glary co nvictions a re Class C felonie s, wi th a sentencing range of three to six years. See Tenn. Code Ann. §§ 39-14-403(b); 40-35-112(a)(3). His theft over $1000 is a Class D

felony, w ith a sente

ncing ra nge of tw o to four y ears; and the thefts between $500 and $1000 are Class E felonies, with a sentencing range of one to two years. See id. §§ 39-14- 105(3), (2); 40- 35-112(a

)(4), ( 5). The a

uto burglar

y is also a Class E felony. See id. § 39-14-402(d). The Defend ant’s rem aining convictions are misdemeanors, and the Defenda nt does not challenge his sentences on those offenses.

The record does not co ntain a transcript of the guilty plea proceedings of these var ious convicti ons. It is apparent from the transcript of the sentencing hearing and the documents contained in the tech

nical re cord th a t a large amount of property was taken during the cour se of the Defendant’s crime spree.

In s entenci ng the De fendant , the tria l court a pplied as enhanc ement fa

ctors th at the Defendant has a previous history of criminal convictions or criminal behavior in addition to those nec essary t

o establish the appropriate range; that he has a previous history of unwilli ngness to comply with the

c onditions of a sentence involving release in the community; and that he was adjudica t ed to hav e committed delinquent acts as a juvenile that would constitute felonies if committed by an adult. See Tenn. Code Ann. § 40-35-114(1), (8), (20). As a mitigating factor, the t rial court found that the Defendant’s conduct nei ther c aused nor threatened serious bodily injury. See id. § 40-35-113(1). Finding that

the enhancement factors outweighed the mitigating factor, the trial court sentenced the Defendant

to five years for

each of the aggravated burglar ies; two years more than the minimum but

one year less than the maximum. For the theft over $1000, the trial court sentenced the Defendant
to three ye ars, a midrange sentence. For the thefts over $500 but le ss than $10 00, the De fendant also received a midrange sentence.

The Defendant now argues that the trial court weighed the enhancement factor s too heav

ily and failed to consider in mitigation that the Defend ant is only

twenty ye ars old, t

hat he is r emorsef ul, and that his crimes were committed in an effort to provide nec essities for his three children.

When an accused

challenges the length, rang e, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by t

h e trial court ar e correct. See Tenn. Cod e Ann. § 40 -35-401( d). This pr esumption

is “conditioned upon the affirmative showing in the record that the tria l court con s idered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evide nce, if any , recei ved at the

trial and sentenc ing hea

ring; ( b) the pr esentence repo

rt; (c) the principles of sentencing and arg

uments as to senten cing al ternativ es; (d) th

e nature and cha racte risti cs of the crimina l conduct involved; (e) any statutory mitigating

or enhancement factors; (f) any statement-3-

made by t

he defe ndant re gardin g se ntenc ing; and (g) the potential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103 , -210; State v. Brewer , 875 S.W.2d 298 , 302 (Te

nn. Crim. A

pp. 1993) ; State v. Thomas , 755 S.W.2d 8 38, 844 (T enn. Crim. App. 1988).

If our review reflects that

the trial court followed

the statutory sentencing

procedure, that the
court imposed a lawful sentence after having give n due c onsideration and proper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely

sup ported by the record, then we may not modify the sentence

even if we would have preferred a different result. See State v. Pike , 978 S.W.2d 904, 926-27 (Te nn. 1998) ; S tate v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The presumpt

ive sente nce for Class C, D a

nd E felon

ies is the m

inimum sent

e nce in the range, increased as appropriate for e nhancement factors, and

decreased

as appropriate for mitigating factor s. See Tenn. Code Ann. § 40-35-210(c), (e). So long a s the trial cou rt complies with the purposes of sentencing and makes findings supported by the record, the weight give n to applic able enhancement

and mitigating factors is left to the sound discretion of the trial co urt. Se e State v. Leggs
, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997), overruled on other grounds, State v. Hooper
, 29 S.W.3d 1, 8 (Tenn. 2000).

We find that the record supports the trial court’s imposition of mid-range sentences. The Defendant’s prior criminal record includes two misdemeanors committed while an adult and

numerous juvenile

convicti ons, inclu ding at le ast two wh ich would have been felonies if committed

as an adult. The Defendant’s record therefore supports application of enhanceme nt factors (1) and (20). See Tenn. Cod

e Ann. § 40 -35-114( 1), (20) ; State v. Jackson , 60 S.W.3d 738 , 742 (Ten n. 2001). Furthermore, the Defendant was serving a suspende d senten c e when he committed the aggravated

burglaries and the theft over $500 bu t less than $1000, supporting the application of enhancement

factor (8) on these offenses. See Tenn. Code Ann. § 40-35-1 14(8). The pr oof in support of mitigation is marginal. Given that the trial court’s findings of fact are supported by the record, and that t

he trial c ourt did no t abuse itsdiscreti on in the weight it assigned to mitigating and enhanc ement fa

ctors, we decline to adjust th

e length o f the Def

endant’ s sentenc es.

The Defend ant also c ontends th at the tri al court should hav e order

ed him to serve h is
sentence on Community Corrections, rather than incarcerated in the Department of Correction. In rejecting an alternative sentence for the Defendant, the trial court found that the De fendant had been placed on release status several times as a juvenile, without success; was on release status at the time he committed several of the instant of fenses; and that h

e “is une mployed, [ and has] no stable home life.” Finding that an alterna tive sente nce “would not be a

ppropria te due to the nature of the offenses [and] the ext ensiv eness of the criminal activity of [the Defendant] going ba ck over a number of years,” the trial court denied alternative se ntencing.

A defenda

nt who “is a

n especi ally

mitigated or standard offender convic ted of a Class C, D,

or E felony is presumed to be a favor able candidate for alternative sentencing options in the absence-4-

of evidence to the contrary .” Tenn. Code Ann. § 40-35-102( 6) ; State v. Lane , 3 S.W.3d 456, 462 (Tenn. 1999). Guidance rega rding what constitutes “evidence to the contrar y” which would re

but the presumption of alternative sentencing can be found in Tennessee Code A nnota ted § 40-35- 103(1), w hich sets forth the

following

consider ations: (A) Confinement

is necessary

to protect society by

restraining a defendant who has a long h istory of crimin al conduc

t; (B) Confineme

nt is nece ssary

to avoid depreciating the seriousness of the offense or confinement

is particu larly

suited to p

rovide a n effec tive dete

rrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have f requently or recently be

en applied unsuccessfully

to the defendant[.]

See State v. Hooper , 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby , 823 S.W.2d 166, 170 (Tenn. 1991).

Ad di ti on al ly, the princ iples of se ntencing reflec t that the s entence

should be no greater

than that deserved for

the offense committed and should be the least severe mea sure necessary to achieve the purpos es for

which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should a lso consi der the p otential f or reha bilitation or trea tment of th

e defen dant in determining the appropriate sentence

. See id. § 40-35-103(5).

The Community

Correct ions Act w as meant

to provide an alternative means of punishment for “selected, nonviolent felony offenders . . . , thereby

reserving secure conf

inement facilities for violentfelony

offende rs.” Ten n. Code An

n. § 40-36 -103(1) ; see also State v. B all , 973 S.W.2d 288, 294 (Tenn. Crim. App. 1998). Pursuant to statute, persons who satisfy a ll of the following minimum criteri a are eligible f

or partic ipation in a

community

correc tions prog

ram: (1) Persons who, without this option, would be incar cerate d in a correctional institution; (2) Persons who are convicted of property-related, or drug/alcoh ol-re lated felony offenses or other

felony offe

nses not involving crimes against the person as provided in title 39, chapter 13, parts 1-5; (3) Pers ons who ar

e convic ted of non

violent fe lony offense s; (4) Persons who are convicted of felon y of fenses i n which the use or possession of a weapon was not involved; (5) Persons who do notdemonstrate a present or past pattern of beha vior indicating violence; [and] (6) Persons who do not demonstrate a pattern of committing violent offense s[.] Tenn. Code Ann. § 4 0- 36 -1 06 (a ). Ad di ti on al ly, persons who do not otherwise satisfy the minimum criteri a and who would usually be c onsidered unfit for probation due to histories of chronic alcohol abuse, drug a

buse, or m

ental he alth prob le ms , but whose special needs are treatable a nd could be served best in the community may be consider ed elig ible for p articipa tion in a c ommunity corrections program. Id. § 40-36-106(c).-5-

However, even though an offender mee ts the requirements for eligibility , he or she is not automatic ally

entitled to such relief. See Ball , 973 S.W.2d a t 294; State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Rather, t he statute provides that the criteria shall be interpreted as min imum standards to guide a trial court’s determination of whe ther that offender is eligible fo r community

corrections. SeeTenn. Code Ann. § 40-36-106(d). This Court has previously noted that

a defendant’s rehabilitative potential is centra l to the process of selecting those offende rs to place in Community

Correct ions. See State v. Grigsby
, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997). Furthermore, “given th

eir ability to review the offender’s demeanor a nd characteristics first hand, trial courts a

re in the best positi on to ascertain an offender’s ame nability to a community corrections program.” Id. Accordingly, this Court will not disturb a tri al court’s decision to grant or deny a Community

Corrections sentenceabsent a clear abuse of discretion. See id. It remains a defendant’s burden to demonstrate that the sentence of total confinement imposed by the trial court is improper. See id. at 544. See also Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401.

We agree t

h at the Defendant

meets the

minimum elig ibility cr iteria f or Communit

y Corrections and ack

nowledge that the Co mmunity Cor rectio ns Superv ision Report prepared by Corrections Management Corporation found the Defendant to be a “ suitab le candi date” for Community

Corrections. Nevertheless, the record supports the trial c ourt’s determination that the Defendant

is not entitled to an alternative sentence. Past efforts to rehabilitate the Defendant have failed. He committed several of the instant crimes while on releas e status. Although the Defendant is young, he has already compiled a significant criminal history. Incar ceration is appropriate, and this issue i s theref

ore witho ut merit.

The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE