# FILED May 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9702- CC-00065 ) Appellee, ) ) ) COFFEE COUNTY VS. ) ) HON. JOHN W. ROLLINS JAMES KEVI N MESSICK, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF COFFEE COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL J. FLANAGAN JOHN KNOX WALKUP DALE M. QUILL EN Attorney Generaland Reporter 95 White Bridge Road #208 Nashvill e, TN 37205 ELLEN H. POLLACK Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 C. MI CHAEL LAYNE Distri ct Attor ney General STEPHEN WEITZMAN Assistant Distri ct Attor ney General Manchester, TN 37355

OPINION FILED ________________________ MODIFIED DAVID H. WELLES , JUD GE1 Tenn. Code A nn. §§ 39-14-103; 39-14-105 (3). -2- 

# OPINION

The Defen dant, Jam es Kevin Messic k, appe als pursuant to Rule 3, Tennessee Rules o f Appella te Proce dure. He was convicted by a Co ffee Cou nty jury of one count of theft over one thousand dollars ($1,000.00), a Class D felony. 1 He was sentenced to f our years as a standard, Range I offender to serve nine mon ths in th e Cof fee C ounty Jail and the balance in community corrections. He was fined $2,500. 00, ordered to pay $7,200 .00 in restitution and to p erform 250 h ours o f com mun ity servic e. The Defe ndan t argue s one issue o n app eal: thatthe tri al court er red in fai ling t o grant h im ful l probat ion. Al though wedecline to allow f ull probat ion, we modif y the manner of ser

vice of t he sentence.

Because the Defendant has n ot chal len ged h is conv iction in this ap peal,
we onl y br ief ly

summa ri ze t he facts. The Defen dant had been emp loye d by Garner’s Furni ture as a delivery person fo r seven years. In M ay, 1995, a store employee reported to the manager of t he store that several hund red dollars were mi ssing from the store’ s money bag. The manager contacted the Manchester Police Depa rt ment , an d th e pol iceset up asur

vei ll ancecame ra in the st ore. They recorded the s erial numbers of the cash kept in the money bag t hat was kept in an employee’s deskdrawer. The police then videotaped the Defendant rifl ing through the mo ney bag . He did n ot take an y cash a t that time, b ut late r returned and took some of the cash.-3- The store’s bookkeeper conducted an audit and di scovered that during a two-year

period, twe nty-five to thirt y thousand dol lars had di sappeared. When questioned, the Defendant admit ted to ste aling $1,000.00 on one occasion and $1,500.00 on another, but later conf

essed to steal ing over $5, 000.00 from the furniture store. He initially surre n dered from his pocket $1,000. 00 in onehundred do llar bills

whose serial numbers matched those recor ded from the
mo ney bag. The p olice returned the $1,000.00 to th e furniture store. Th e Defendant later took the poli ce to his home where he t urned over $7,200.00 fr

om a lockbox. The money was retai ned asevi dencefor tri al. Th e Defendant was convicted of theft over $1,000 and now appeals his s entence, asser ting that the trialcourt err

ed by fail ing to grant

him full probation.

When an accused chall enges the lengt h, range, or the manner of service of a sentence, t his court has a duty to

conduct a de novo review of the sentence with a presumption t hat the determinations made by t he trialcou rt are c orrect. T enn. Code Ann. § 40-35-401(d) . This presumpti on is "condi tioned upon t he affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant facts and circums tances ." State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, t his court must consider: (a) the evidence, if any, r eceived at t he trialand the sentenci ng hea ring; ( b) the presentence report; (c) t he pri nciples o f sentenc ing and argum ents as to sentencing alternat ives; ( d) the natur e and characteristi cs of the criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement t hat the defen dant made on his own behal f; and (g)the potenti al or lac k of-4-

potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having given due consider ation and properweight to t he factors and princi ples setout under the sentenci ng law, and thatthe tri al court' s findi ngs of fact are adequately

supported by

the record, then
we may not modi fy the se ntence even if we would have preferred a dif ferent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

The presentenc e report reflects that the D efendant wa s twenty-six y ears old at the time of

sentencing. He was married, wi th a two-year-old daughter and
a one-year-ol d son. He graduated fr om Coffee County High Schoolin 1988 and had pursued no furt her formal education. He reported no serious physi cal or emotional problems, admit ted to some alcoholuse when he was twenty- one and denied any drug use. He and hi s wife l ived wit h his parents, who wer e in ill health. The Defendant had maintained steady employment fr om 1987 until the offense in question, and was working at the Marine G roup in Murfre es boro, Tennessee at the ti me of sentencing. The victi m impact statement co mpleted by the store man ager recom mende d that the Defe ndant “s hould ‘ get a tast e’ of shock i ncarce rati on” becausehe beli eved that the Defen dant had not shown
remorse.

A sent encing heari ng was conducted on June 28, 1996. The Defendan t represented hims elf bec ause his former counsel had been suspended from the practice of law and he said h e was u nable to secure represent ation pri or to the-5-

sentencing hearing. Laura Pro sser, a probat ion offi cer, test ified t hat the Defendant admitted to stealing only part of th e total am ount m i ssing fro m the furniture store. Th e Defe ndant h ad stated he was not raised to steal, but was not open ly remorsefu l. Jeff Cox, of Brad Ragan Tire and Appli ance, test ified t hat the Defendant had a credi t accoun t wi th t he s tor e th at h e pai d of

f i n Sep temb e r of 1993. Thereafter, the Defendant made only cas h purchases at the store,which totaled some $11,000.00. The Defendant pa id for t he purchases wit h large denomination cu rr ency, mainly one hundred doll ar bill s. Some of the l arge purcha ses we re lawnm owers, a ppliance s, tires, and miscella neous items.

The Defendant testifi ed that he made some of the purchase s f rom Brad Ragan Tire and Applian ce on b ehalf of his mothe r and father and that th ey provi ded the money. He was mainta ining hi s father’ s lawn care bu sines s because his father was sick. The Defendant also stated that hi s parents received disability money and that his mother receiv

ed settl ement money from h er fathe r’s estate, which was used to pay for the i tems he purchased. He deni ed tha t he used o ne hun dred do llar bills from G arner’s F urniture.

The Defe ndan t’s mothe r te stifi ed that she and her husband paid for

the it ems at Brad Raga n Tire and A pplian ce. Th e Def enda nt’s brother testifi ed that the lawnmowers were purchas ed with money he and the Defendant earned doing lawn care fo r their father’s business. Thei r father could not wor k because he had lung ca nc er. He test ified t hat they coul d earn $200.00 to $300.00 per week cutting grass. Most j obs paid between $20. 00 and $50.00.-6- The trialcourt ordered that the Defendant ser

ve the maximum sentence of fouryears wit h nine months incar ceration i n the Coff ee Co unty Jailand the ba la nce to be served i n community correc tions. In imposing t he sentence, t he t rial judge m entione d that the D efenda nt’s back ground and ed ucati on wer e positive factors. He also n oted th at the D efend ant’s actions v iolated the trust of the other

employees at t he furnit ure store. Finall y, the t rial j udge stated th at the Defendant was not enti rely candi d regarding the money he stole. However, the record does not aff irmatively de monst rate that the tri al judge gave due considerati on to the pri nciples of sentencing as is requi red, ther efore, we conduct this r eview de novo without the presum ption of co rrectnes s.
Although probation " must be autom a tically considered as a sentencing option for eli gible defendant s, th e defen dant is no t autom atically entitled to probation as a mat

ter of l aw." Te nn. Cod e Ann. § 40-35-303( b) (1990) (S entencing Commission Comments). This Court must begin its sen tencin g determinati on by revi ewin g thepurp oses of sen tenc ing s et fort h in Te nnes see Code Annota ted sectio n 40-35 -102. State v. Davis , 940 S.W.2d 558,559 (Tenn. 1997).

I f an accused has been convi cted of a Clas s C, D or E felony and sentenced as an especial ly miti gated or standa rd offen d er, there is a presumption, rebuttabl e in nature, that the accused is a fav orable candi date for alternative sentencing unless disq ualifi ed by some provisi on of the Tennessee Criminal Senten cing Re form A ct of 1989

. Tennessee Code Annotated sect ion 40-35-1 02 provid es in part:-7- (5) In recogni tion that

state pri son capa cities an d the fu nds to build and main tain them are li mited, convi cted felons committ ing the most se vere offenses, poss essin g c riminal hi stories evincing a clear dis regard for the laws and morals of society, a nd evincing f ailure of past effo rts at rehabili tation shall be given first priority regarding sentencing involving incarcerat ion; and (6) A defendant who does not fal l withi n the parameters of s ubdivisi on (5) and is an especially mit igated or standard offender convict ed of a Class C, D or E felony is presumed to be a f avorable cand idate for alternative sentencing opt ion s in the absence of evi dence to the contrary.
The sentencing proce ss m ust ne cess arily commence with a determinat ion of whetherthe accu sed is en titled to the be nefit of the p resum ption. Ashby , 823 S.W.2d at 169. As our supreme c ourt said in Ashby : "If [the] de termin ation is f avora ble to the defe ndant, the trial court m ust presu me tha t he is sub ject to alternative senten cing. If th e c ourt is pres ented w ith evidenc e sufficient to
ove rco me the presumpti on, then i t may sentence t he defendant to confinement accord ing to the s tatutory pro vision[s]." Id. "Evidence to the contrary" may be found in applyi ng the conside ra tions th at govern sentences invol ving confinem ent, which are set forth i n Tennessee Code Annotated secti on 40-35-103 (1):
(A) Confinem ent is necess ary to protect society by re str aining a defend ant who has a lon g history of c riminal co nduct; (B) Conf inem ent is necessary to avoid depr eciati ng the seri ousness of the offense or confinem ent is particularly suited to provid e an effective deterrence to others li kely to co mmit similar offenses; or (C) Measures less restrict ive than conf inement have fr equently or recently b een ap plied uns uccess fully to the de fendan t.
See Davis , 9 40 S.W .2d at 561 ; Ashby , 823 S .W .2d at 1 69. Th e pres ump tio n can be succ essfully reb utted by fa cts conta ined in the presen tence re port,-8-

evidence presented by t he state, the testi mony of the a ccu sed or a defense witness, or any other source provi ded it i s made a part of the reco rd. State v. Bonestel , 871 S.W .2d 163, 167 (Tenn. Crim . App. 1993 ).
Beyond this, a defe ndant has the bu rden of establ ishing hi s or her suitability for total probati on. Tenn. Code Ann. § 40-35-303(b) . To be granted full probation, a defen dant must demonstrate t hat probati on will "subserve t he ends of just ice and the best interest of both the publ ic and thedefend ant." State
v. Boggs , 932 S.W .2d 467 , 477 (T enn. C rim. App . 1996); State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Cri m. App. 1995) (ci ting Hoop er v. State , 201 Tenn. 156, 161, 297 S.W.2d 78, 81 (1956)). The trial court must consi der a sentence which is the “least s evere m easure neces sary to ac hieve the purpos es fo r which th e sentence is imposed” and “ [t]he potential or lack of potentialfor therehabilitation or treatm ent for the d efenda nt.” Tenn . Code Ann. § 4 0-35-10 3(4), (5).

In Bingham , we cited t he following factor s which, al though “not con troll ing the discre tion of th e sen tencin g cou rt,” shou ld be c onsid ered in determining the appropriateness of probat ion: (1) The nature and characteri stics of the crime, under Tenn. Code Ann. § 40-3 5-210(b)(4) (S upp. 1996 ); (2) the defendant’s potential f or rehabil itati on, under Tenn. Code Ann. § 40-35-10 3(5)(1990); (3) whether fullprobation would “unduly depreci ate the seriousness of the off

ense,” under Tenn. Code Ann. § 40-35-103(1) (B) (1990); and (4) whether a s entence of full prob ation would “pro vide an effective deterrent,” unde r Tenn. Co de Ann. § 4 0-35-103(1 )(B) (1990).-9-

Bingham , 910 S.W.2d at 456.

The Defendant was convicted of a Class D fel ony and therefor e is enti tled to the benefi t of thepresumption for alternative sentencing. We have reviewed the presentence rep ort, whi ch reflec t s no signif icant probl ems other than t he offense in questi on. Miti gating fac tors appli cable t o the decisi on regarding alternative sentencing are that t he Defendant’s c riminal conduct neit her caused
nor threatened bodily i njury and that ther e was n o prior criminal history . Tenn. Code Ann. § 40-35-113( 1), (13). An enhancement factor is that the Defendant abused a posi tion of private t rust duri ng the commission of the offens e. Tenn. Code Ann. § 40-35-114( 15). The State i ntroduced testimony that the Defendant lacked remorse about the cr ime and that he was not candid about t he money he stole.

We point out

that the Defendant receiv ed a sentence of con finement followed by community corrections, which is a form o f alternative s entenc ing. W e are mindful t hat the Defendant bears the burden of prov ing his suitab ility for full probation. The record does not r eflect t hat the Defendant met thi s burden during the sentencing hearing of showi ng that probat ion woul d “subserve t he ends of justice of both the public an d the de fendan t.” The trialcourt’s concerns regardi ng the Defendant’s l ack of candor and remorse arecertainly factor s to consider when determining w hether con finement i s necessary for deterrence of the Defendant and others in the community. The tri al judge mentioned another case of embe zzlem ent h e handled the sam e day he senten ced the Defen dant. Howeve r, we must certain ly recog nize th at the D efend ant wa s witho ut the b enefit of counsel during h is senten cing hea ring. In consideration of i mposing the least-10-

restrictive sentence to accompl ish the sentencing pri nciples, we reduce the period of incarceration to three months and af firm the t rial cour

t’s order for the Defendant to serve the ba lance of his sent ence in c omm unity corre ctions. W e note that the tri al court has the discr etion to revoke a co mmu nity correcti ons sentence upon a findi ng that the Def e ndant has viol ated the condi tions of the agreem ent; the tri al court may t hen order theDefen dant to serve h is sent ence in confinem ent. State v. Harkins , 811 S.W .2d 79, 82 (T enn. 1991 ).
According ly, we modify the term of incarcerat ion to thr ee months with the balance to be served i n community correc tions and remand to the trialcourt for entry of an order consi stent wit h this opi nion.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JERRY L . SMI TH, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE