# FILED
May 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1997 SESSION
STATE OF TENNESSEE, * C.C.A. # 01C01-9604-CC-00139

Appellee, * GILES COUNT Y VS. * Hon. Jim T. Ham ilton, Judge RICKEY COLEMAN, * (theft ( 3 counts ); attem pted fo rgery (3 counts); fo rgery (16 counts); pa ssing Appellant. * worthless checks ( 16 counts); assault (1 count)) * For Appellant: For Appellee: Shara Flacy Charles W. Burson District Public Defender Attorney General & Repor ter John R. W ingo Karen M. Ya cuzzo Assistant Public Defender Assistant Attorney Gener al 128 North Second Street Criminal Justice Div ision P.O. Box 1208 450 James Robertson Parkwa y Pulaski, TN 38478 Nashville, TN 37243-0493 Mike Bottoms District Attorney General 252 N. Military Av

enue Lawrenceburg, TN 38464 Richard Dunavant Asst. District Attor

ney General 10 Public Square P.O. Box 1619 Columbia, TN 38401 OPINION FILED: __________________

AFFIRMED
GARY R. WADE, JUDGE1 W hile so me plead ings refe r to the defe nda nt as "Rick y Orla ndo Cole ma n," it is th e polic y of this court to refer to the defend ant as his nam e appe ars on th e indictm ent. 2 OPINION The defendant, Rickey Coleman, 1 pled nolo contendere to 16 counts of forgery, 16 counts of passing worthless checks, 3 counts of theft, 3 counts of attempted forgery, and 1 count of as sault. The plea agreement with the state provided for an effective eig ht-year sentence with the trial court to deter mine the manner of service.

In this appeal of right, the de fendant claims that the trial co urt erred by denying any form of alternative sentencing. We find no error and affirm the judgment of the trial court.

The record contains little information about the offenses. All appear to have been committed in July , August, and October of 1994. The i ndictments suggest that two of the offenses w ere for theft of checks for less than $500.The third offense is based on a theft of over $1000 in property from Mary Simington. The assault conviction was the result of the defendant 's enticing a victim to drink a cup of bleach over ice. The r emaining offenses involved the defendant's drawing checks on the accounts of others.

The presentence report shows that the defendant had been granted probation on earlier offenses. H e was convicted of agg ravated assault in 1992 and received an eleven months , twenty-nine day s sentence on probation. In Mar ch of 1994, only months before these offenses, the defendant was convicted of theft and sentenced to eleven months, twenty-nine days on probation. The presen tence report also indicates that after the defendant was arrested o n August 10, 1994, and2 On November 8, 1994 , the d efendant pled gui lty

to misdemeanor t heft. The report shows that on Se ptem ber 26, 1 995, only we eks be fore sen tencing in th is case, th e defen dant ente red guilty pleas to t heft of prop erty, attempted thef t of proper

ty, an d false repor

ts. On April

11, 1995, he pl ed guilt y to misdemeanor thef t. On February

14, 1995, he pl ed guilt y to cri minal trespassi ng. Because we cannot d etermine wh en the cr imes were committed, we hav e not consi dered th em in our re view. 3 released from custody, he wrote five additional fraudulent checks on August 12, 1994. 2
The defendant, twenty years of age at the time of sentencing, has completed eleventh grade. His work history is limited. Three of his employers reported poo r performance or absenteei sm.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).4 Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history, and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35- 102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn.1990). That a defendant meets the minimum requirements of the Commun ity Corrections Act of 1985, however, does not mean that he is entitled t o be sentenced under the act as a matt er of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App.1987). The following offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving c rimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5;5 (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

Alternative sentencing

issues must be determined by the facts and circumstances of the indiv idual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be bottomed upo n its own facts." Taylor , 744 S.W.2d at 922.
In denying alternativ e sentencing, the trial c ourt observed the defendant's "past record [was] horrendous," and that "the number of cr iminal offenses that are represented by th ese indictments" was unusual ly large. Thus, due regard was given to the defendant's prior record and the seriousness of his offen ses. In ou r view, the d efenda nt has fa iled to ove rcome th e presum ptive correctness of the ruling in the trial court. See Tenn. Code Ann. § 40-35-401(d). His prior record full

y warranted the denial

of an alternate sentence. See Tenn. Code Ann. § 40-35-103(1)(A)

.

Due in great measure to the criminal history of the defendant and his failure to rehabilitate despi te previous terms of probati on, we yield to the discretionary authori

ty of the trial court. The d efendant has previously r eceived the6 largesse of the law by

being given post-p lea diversion and probati on. In spite of this, the defendant has continued to v iolate the law. "Measur es less restrictiv

e than confinement have ... recently been applied unsuccessfully to the defendant." Tenn. Code Ann. § 40-35-103(1)(C) . His behavior indi cates a blatant disregar d for the laws of our society. A period of confinement is necessar y to protect society

from the defendant's propensity to v iolate the law.
Accordingly, the j udgment of the trial court is affirmed.

________________________________________ Gary R. Wad e, Judge CONCUR:

___________________________ David G. Hayes, Judge

___________________________ Curwood Wi tt, Judge