FILED

May 15, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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 KEVIN MESSICK, ) JUDGE

)

Appellant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF COFFEE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL J. FLANAGAN JOHN KNOX WALKUP

DALE M. QUILLEN Attorney General and Reporter

95 White Bridge Road #208

Nashville, TN 37205 ELLEN H. POLLACK

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

C. MICHAEL LAYNE

District Attorney General

STEPHEN WEITZMAN

Assistant District Attorney General

Manchester, TN 37355

OPINION FILED ________________________

MODIFIED

DAVID H. WELLES, JUDGE
1

 Tenn. Code Ann. §§ 39-14-103; 39-14-105 (3).

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OPINION

The Defendant, Jam es Kevin Messick, appeals pursuant to Rule 3,

Tennessee Rules of Appellate Procedure. He was convicted by a Coffee County

jury of one count of theft over one thousand dollars ($1,000.00), a Class D

felony.1 He was sentenced to four years as a standard, Range I offender to serve

nine months in the Coffee County Jail and the balance in community corrections.

He was fined $2,500.00, ordered to pay $7,200.00 in restitution and to perform

250 hours of community service. The Defendant argues one issue on appeal:

that the trial court erred in failing to grant him full probation. Although we decline

to allow full probation, we modify the manner of service of the sentence.

Because the Defendant has not challenged his conviction in this appeal,

we only briefly summarize the facts. The Defendant had been employed by

Garner’s Furniture as a delivery person for seven years. In May, 1995, a store

employee reported to the manager of the store that several hundred dollars were

missing from the store’s money bag. The manager contacted the Manchester

Police Department, and the police set up a surveillance camera in the store. 

They recorded the serial numbers of the cash kept in the money bag that was

kept in an employee’s desk drawer. The police then videotaped the Defendant

rifling through the money bag. He did not take any cash at that time, but later

returned and took some of the cash.
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The store’s bookkeeper conducted an audit and discovered that during a

two-year period, twenty-five to thirty thousand dollars had disappeared. When

questioned, the Defendant admitted to stealing $1,000.00 on one occasion and

$1,500.00 on another, but later confessed to stealing over $5,000.00 from the

furniture store. He initially surrendered from his pocket $1,000.00 in onehundred dollar bills whose serial numbers matched those recorded from the

money bag. The police returned the $1,000.00 to the furniture store. The

Defendant later took the police to his home where he turned over $7,200.00 from

a lockbox. The money was retained as evidence for trial. The Defendant was

convicted of theft over $1,000 and now appeals his sentence, asserting that the

trial court erred by failing to grant him full probation.

When an accused challenges the length, range, or the 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 the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of
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potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The presentence report reflects that the Defendant was twenty-six years

old at the time of sentencing. He was married, with a two-year-old daughter and

a one-year-old son. He graduated from Coffee County High School in 1988 and

had pursued no further formal education. He reported no serious physical or

emotional problems, admitted to some alcohol use when he was twenty-one and

denied any drug use. He and his wife lived with his parents, who were in ill

health. The Defendant had maintained steady employment from 1987 until the

offense in question, and was working at the Marine Group in Murfreesboro,

Tennessee at the time of sentencing. The victim impact statement completed by

the store manager recommended that the Defendant “should ‘get a taste’ of

shock incarceration” because he believed that the Defendant had not shown

remorse.

A sentencing hearing was conducted on June 28, 1996. The Defendant

represented himself because his former counsel had been suspended from the

practice of law and he said he was unable to secure representation prior to the
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sentencing hearing. Laura Prosser, a probation officer, testified that the

Defendant admitted to stealing only part of the total amount missing from the

furniture store. The Defendant had stated he was not raised to steal, but was not

openly remorseful. Jeff Cox, of Brad Ragan Tire and Appliance, testified that the

Defendant had a credit account with the store that he paid off in September of

1993. Thereafter, the Defendant made only cash purchases at the store,which

totaled some $11,000.00. The Defendant paid for the purchases with large

denomination currency, mainly one hundred dollar bills. Some of the large

purchases were lawnm owers, appliances, tires, and miscellaneous items. 

The Defendant testified that he made some of the purchases from Brad

Ragan Tire and Appliance on behalf of his mother and father and that they

provided the money. He was maintaining his father’s lawn care business

because his father was sick. The Defendant also stated that his parents received

disability money and that his mother received settlement money from her father’s

estate, which was used to pay for the items he purchased. He denied that he

used one hundred dollar bills from Garner’s Furniture. 

The Defendant’s mother testified that she and her husband paid for the

items at Brad Ragan Tire and Appliance. The Defendant’s brother testified that

the lawnmowers were purchased with money he and the Defendant earned doing

lawn care for their father’s business. Their father could not work because he had

lung cancer. He testified that they could earn $200.00 to $300.00 per week

cutting grass. Most jobs paid between $20.00 and $50.00.
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The trial court ordered that the Defendant serve the maximum sentence of

four years with nine months incarceration in the Coffee County Jail and the

balance to be served in community corrections. In imposing the sentence, the

trial judge mentioned that the Defendant’s background and education were

positive factors. He also noted that the Defendant’s actions violated the trust of

the other employees at the furniture store. Finally, the trial judge stated that the

Defendant was not entirely candid regarding the money he stole. However, the

record does not affirmatively demonstrate that the trial judge gave due

consideration to the principles of sentencing as is required, therefore, we conduct

this review de novo without the presumption of correctness. 

Although probation "must be automatically considered as a sentencing

option for eligible defendants, the defendant is not automatically entitled to

probation as a matter of law." Tenn. Code Ann. § 40-35-303(b) (1990)

(Sentencing Commission Comments). This Court must begin its sentencing

determination by reviewing the purposes of sentencing set forth in Tennessee

Code Annotated section 40-35-102. State v. Davis, 940 S.W.2d 558,559 (Tenn.

1997).

If an accused has been convicted of a Class C, D or E felony and

sentenced as an especially mitigated or standard offender, there is a

presumption, rebuttable in nature, that the accused is a favorable candidate for

alternative sentencing unless disqualified by some provision of the Tennessee

Criminal Sentencing Reform Act of 1989. Tennessee Code Annotated section

40-35-102 provides in part:
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(5) In recognition that state prison capacities and the funds to build and

maintain them are limited, convicted felons committing the most severe

offenses, possessing criminal histories evincing a clear disregard for

the laws and morals of society, and evincing failure of past efforts at

rehabilitation shall be given first priority regarding sentencing involving

incarceration; and

(6) A defendant who does not fall within the parameters of subdivision

(5) and is an especially mitigated or standard offender convicted of a

Class C, D or E felony is presumed to be a favorable candidate for

alternative sentencing options in the absence of evidence to the

contrary.

The sentencing process must necessarily commence with a determination

of whether the accused is entitled to the benefit of the presumption. Ashby, 823

S.W.2d at 169. As our supreme court said in Ashby: "If [the] determination is

favorable to the defendant, the trial court must presume that he is subject to

alternative sentencing. If the court is presented with evidence sufficient to

overcome the presumption, then it may sentence the defendant to confinement

according to the statutory provision[s]." Id. "Evidence to the contrary" may be

found in applying the considerations that govern sentences involving

confinem ent, which are set forth in Tennessee Code Annotated section

40-35-103(1):

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of

the offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant. 

See Davis, 940 S.W .2d at 561; Ashby, 823 S.W.2d at 169. The presumption

can be successfully rebutted by facts contained in the presentence report,
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evidence presented by the state, the testimony of the accused or a defense

witness, or any other source provided it is made a part of the record. State v.

Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993).

Beyond this, a defendant has the burden of establishing his or her

suitability for total probation. Tenn. Code Ann. § 40-35-303(b). To be granted

full probation, a defendant must demonstrate that probation will "subserve the

ends of justice and the best interest of both the public and the defendant." State

v. Boggs, 932 S.W .2d 467, 477 (Tenn. Crim. App. 1996); State v. Bingham, 910

S.W.2d 448, 456 (Tenn. Crim. App. 1995) (citing Hooper v. State, 201 Tenn. 156,

161, 297 S.W.2d 78, 81 (1956)). The trial court must consider a sentence which

is the “least severe measure necessary to achieve the purposes for which the

sentence is imposed” and “[t]he potential or lack of potential for the rehabilitation

or treatment for the defendant.” Tenn. Code Ann. § 40-35-103(4), (5). 

In Bingham, we cited the following factors which, although “not controlling

the discretion of the sentencing court,” should be considered in determining the

appropriateness of probation:

(1) The nature and characteristics of the crime, under Tenn. Code

Ann. § 40-35-210(b)(4) (Supp. 1996);

(2) the defendant’s potential for rehabilitation, under Tenn. Code Ann.

§ 40-35-103(5)(1990);

(3) whether full probation would “unduly depreciate the seriousness

of the offense,” under Tenn. Code Ann. § 40-35-103(1)(B) (1990); and

(4) whether a sentence of full probation would “provide an effective

deterrent,” under Tenn. Code Ann. § 40-35-103(1)(B) (1990).
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Bingham, 910 S.W.2d at 456.

The Defendant was convicted of a Class D felony and therefore is entitled

to the benefit of the presumption for alternative sentencing. We have reviewed

the presentence report, which reflects no significant problems other than the

offense in question. Mitigating factors applicable to the decision regarding

alternative sentencing are that the Defendant’s criminal conduct neither caused

nor threatened bodily injury and that there was no prior criminal history. Tenn.

Code Ann. § 40-35-113(1), (13). An enhancement factor is that the Defendant

abused a position of private trust during the commission of the offense. Tenn.

Code Ann. § 40-35-114(15). The State introduced testimony that the Defendant

lacked remorse about the crime and that he was not candid about the money he

stole.

We point out that the Defendant received a sentence of confinement

followed by community corrections, which is a form of alternative sentencing. We

are mindful that the Defendant bears the burden of proving his suitability for full

probation. The record does not reflect that the Defendant met this burden during

the sentencing hearing of showing that probation would “subserve the ends of

justice of both the public and the defendant.” The trial court’s concerns regarding

the Defendant’s lack of candor and remorse are certainly factors to consider

when determining whether confinement is necessary for deterrence of the

Defendant and others in the community. The trial judge mentioned another case

of embezzlement he handled the same day he sentenced the Defendant. 

However, we must certainly recognize that the Defendant was without the benefit

of counsel during his sentencing hearing. In consideration of imposing the least
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restrictive sentence to accomplish the sentencing principles, we reduce the

period of incarceration to three months and affirm the trial court’s order for the

Defendant to serve the balance of his sentence in community corrections. We

note that the trial court has the discretion to revoke a community corrections

sentence upon a finding that the Defendant has violated the conditions of the

agreem ent; the trial court may then order the Defendant to serve his sentence in

confinem ent. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

Accordingly, we modify the term of incarceration to three months with the

balance to be served in community corrections and remand to the trial court for

entry of an order consistent with this opinion.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE