# FILED
July 31, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE APRIL 1997 SESSION
STATE OF TENNESSEE, * C.C.A. # 01C0 1-9607-CR- 00314

Appellee, * DAVID SON C OUNTY VS. * Hon. Don ald Harris , Specia l Judge REGINOL L. WATERS, * (Official Mi sconduct; Theft ove r $10,000)

Appellant. *
For Appellant : For Appellee: Jeffrey A. Dev

asher Charles W. Burson Assistant Publ ic Defender Attorney Gen eral & Repor ter 1202 Stahlman Build ing Nashvil le, TN 37201 Ruth Thompson Counsel for the St ate 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Katie Mill er Assistant D istrict A

ttorney Gener

al W ashington Square 222 Second Avenue, Suite 500 Nashvil le, TN 37201-1649

OPINION FILE D:_____________________

AFFIRMED

GARY R. WADE, JUDGE1 Th e de fen dan t was cha rged in two s epa rate ind ictm ents . Th e m isco ndu ct indic tm ent lists the d efe nda nt's na m e as "Re gino l L. W aters " and the the ft indictm ent a s "R egin ol Leo n W aters ." 2 OPINION The defen dant, Reginol L. W aters, 1 pled guil ty to one coun t of official misconduct and one count of theft over $10,000 and receiv ed one- and four-year sent ence s resp ecti vely. T he tr ial co urt o rder ed th e def end ant t o ser ve nin ety da ys in the Dav idson County Workhouse before placement on a Communit y Corrections program.
In this appeal o f right, the de fendant claims that t he trial cour t erred by requiri ng any of the s entence to be ser ved. We find no error and affirm the judgment of the tr ial court.

The facts supporting the official misconduct convi ction are summar ized in the presentence report. T he defendan t had been employed as an automobile emissions tes ting agent . On December 1 1, 1993, after inspec ting the per

sonal vehicle of a p olice officer, th e defendant informed the officer that he could g et the vehicle pa ssed "for a pric e." The officer informed hi s supervi sor of the inci dent and, a few days later, Vice Officer Greg J ones began an in vestig ation. He first had a vehicle t ested sever

al times for emis sions; it consistently failed to meet standar

ds. Jones then took th e vehicle for inspection by the defendant, who confirmed the vehicle di d not meet the establ ished guidel ines. The defendant then offered t o "pass" the vehi cle for twe nty-fiv e dollars. Jones gave the defendant the money and left. Upon his return, the defendant provided c ertification pa pers even t hough the vehicle ha d not been examin ed.

The factual basis for the theft convic tion are also

summarized i n the3 presentence repo rt. On October 3, 1994, the v ictim, Thomas Shr iver, was returning to his apartment during the ea rly hour s of the morning, when he pass ed by the defendant, who was walki ng towar d the parking lot. When he entered his res idence, the victi m realized that sever al items, inc luding a comput er, weremissing. The victim tr ied to stop the de fendant, who was drivi ng away in a gray

1988 Mazda pickup truck . The victi m reported the i ncident to poli ce, who, w ithin minutes, made an arrest. The stolen items were in the tr uck. The vi ctim, when called to the s cene, identified the defendant and the items taken in the burgl ary. The defendant confessed but expl ained to polic e that a person named John had instru cted him to go t o that apa rtme nt an d pi ck u p theite ms; h e cl aime d that Jo hn, w ho sa id h is w ife lived at t he apartment, told him that the items would be out

on the patio. The defendant could not recall John's l ast name and was unable to remember the address John had provided. Af ter the defenda nt was transported to jail, police found a gold neckl ace belonging to the vic tim in the defendant's

shoe.

The de fend ant, th irty-three years of a ge at the time of senten cing, testified that he g raduated from hig h school, spent four years i n the Navy , and had received an honorable dis charge. Thereafter, he wor ked for the post office but was fired in 1992 due to cocaine and mari juana use. Dur ing that ti me, he developed a $500 to $1000 per day cocaine habit. He was treated for the addi ction but qui t the program after t en days. After ward, the d rug proble m became more severe. From 1992 until 1994, t he defendant held a variety of tempor ary jobs. In 1994, he had
some success as

a self-employ ed painter and had recently acquired a $20,000 contract.

The defendant claimed that h e had solici ted bribes w hile employ ed as a testing emi ssions agent to support his

drug habit. He continued t o assert that t he4 theft was at thedirection of hi s friend John, w ho explained that his w ife's order of protection precluded his pi cking up theitems himself. The defendant claimed John agreed to pay

him $100 to coll ect the items. The defendant explained that he went to the apartment at an unusual hour because he believed the items w ere on the patio and it had begun to rain. T he defendan t insisted that he had fo und the gold necklace on the ground and had kept the necklaceto assure John would pay him. Despi te hisversion o f event s, the defendant conced ed that

he knew

takin g the items was "somehow

not legiti mate."

After his arrest, the defendant underwent drug treatment at the Veteran's Hospital. He finished th e thirty day program and had been drug free until the imp osition of sen tence. He testif ied tha t he bega n using ille gal drugs at age nineteen, whi le he was in the navy and that drug use was very common among enlisted men. At the time of the theft, the defendan t was on probation for a misdemeanor offense unrelated to these charges. He had been released on ba il on the official miscon duct charge.

W hen a challenge is made to the len gth, range, or manner of service of a sentence, it i s the duty of thi s court to co nduct a "de novo review ... wit h a presumption that the determinations made by the court from which the appeal is taken are corr

ect." Tenn. Code Ann. § 40-35-401(d) . The Sentencing Commission Comments prov ide that the burd en is on the defendant t o show the i mpropriety of the sentence.

Our revi ew requ ires an analy sis of (1) theevidence, i f any, receiv ed at the trial and sentencing hea ring; (2 ) the presentenc e report; (3) the principl es of sentencing and the arguments of counsel relati ve to sentenc ing alter natives; ( 4) the5 nature and charac

teristics of the offense; (5) any mitigatingor enhancing factors; (6) any statements made by the de fendant in his own behalf ; and (7) the defend ant's potential for re habilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, - 210.

Especially

mitigated or

standard offenders conv icted of Class C, D, or E fe loni es ar e, of cour se, p resu med to be favo rabl e can dida tes " for alte rnat ive sentencing opt ions in the abs ence of evidence to the contrar y." Tenn. Code Ann. § 40-35-102(6).

Amo ng the fac tors appl icab le to cons ider atio n fo r an a ltern ative sentence are the circumstances of the offense, the defendant's cr iminal recor d, social history and present condition, and the deterrent eff ect upon and the best interest of the defendant. State v. Grear , 568 S.W.2d 285 (Tenn. 1978). The purp ose o f th e Com mun ity Cor rect ions Act o f 19 85 was to pro vide a n alt erna tive means of punishment for "sel ected, nonvi olent felony offenders in front-end community based alternatives to incarc eration." Tenn. C ode Ann. § 40-36-10 3. The Community Co rrections sentence prov ides a desired degree of flex ibility that may be both beneficial to the defendant yet se rve leg itimate socie tal aims. State v. Gr iffith , 787 S.W.2d 340, 342 (Tenn.1990). That the defendant meets the minimum requirements

of the Community Correction s Act of 1985, how ever, does not mean that he is enti tled to be sentenc ed under the act as a matter of law

or righ t. Stat e v. Taylor , 744 S.W .2d 919 (Tenn. Crim. App .1987). The following off enders are eligible for Community Corrections:

(1) Persons

who, w ithout this opt ion, would be incarcerated in a correc tional insti tution; (2) Persons

who are convicted of pr operty-related, or drug/alcohol -related felony offenses or other felony offenses not invol ving c rimes agai nst the person as provided i n title 39, ch apter 2 [repeal ed], parts 1-3 and 5-7 or titl e 39, chapter 13, parts 1-5;6 (3) Persons

who are convicted of nonv iolent felony offenses; (4) Persons who are convicted of felony off enses in which the use or possess ion of a weapon w as not involved; (5) Persons who do not demonstrate a prese nt or past pattern of behavi or indicati ng viol ence; (6) Persons

who do not demonstrate a pattern of committing v iolent offenses; and (7) Persons

who are s entenced to incarceration or on escape at the ti me of consideration will n ot be eligi ble. Tenn. Code Ann. § 40- 36-106(a).

In Ashby , our supreme court encouraged th e grant of considerable discretionar

y authorit

y to our tr ial courts in matters suc h as these. 823 S. W.2d at 171. See State v. Moss , 727 S.W.2d 229, 235 (Tenn.1986). "[E]ac h case must be bottomed upon its ow n facts." Taylor , 744 S.W.2d at 922. "It is not the policy or purpose of this court to place t rial judg es in a judic ial strai ght-jacke t in this or any other area, and we are always reluctant to interfere with their traditional discretion ary powers." Ashby , 823 S.W.2d at 171.

In sentencing the defendant, the tri al court made the following observations: He's entitled to the presumpt ion ... [that he] is a favorable

candidate for alter native sente ncing. In t his case he was on probation at t he time this offense or these offenses were commit

ted and that's ce rtainly

a sentencing consideration .... But another sentencing consideration this Cou rt d eemsimpo rta nt i s th e pot enti al o r la ck [ of] potential for re habilitation. Mr. W aters, I believe th at one o f the m ain thin gs that you or any one perso n can do to show that you can be rehabilitated, is to come i nto this cour t and tell the truth. I'm going to be honest with you, if you had come in here and told me that you plan ned the burglary of this home a nd that you broke in and you to ok these things7 and you put them i n your tr uck and you g ot caught, I would feel a l ot better about y ou than I do. Inst ead, you tell this story about someone whose last nam e you don't know named John, phoning you and telling you that he had been put out of his home and you ge t this repor t and 8:00 at night and you decideat 3:30 in the mor ning that you're going to go over to this home and pick up those things. And I tried to give y ou an opportunity

to tell me the truth. ... I think that's

a signific ant factor in deter mining whether you really

are earnest i n your efforts t o be rehabilitated

.

The defendant was eli gible for an al ternative sentence and, of cour se, received one. Lack of candor, however , has traditi onally been a valid reason for denying i mmediate probation. State v. Poe , 614 S.W.2d 403 (Tenn. Crim. App. 1981). Untrut hfulness sugg ests a lack of amenability towards r ehabilitation. State v. Bunch , 645 S.W .2d 158 (Tenn. 198 3). The defend ant's version of the thef t was, in a word , incredibl e. That the defendant was on probation w hen he committed the theft is also an unf avorable factor. A period of inca rceration is appropriate where "[m]easures les s restric tive than confinement have ... recently been applied unsuccessfully

...." Tenn. Code An n. § 40-35-103( 1)(C).
The judgment is affirmed.

__________________________________ Gary R. W ade, Ju dge CONCUR:

_______________________________ David H. W elles, Ju dge

_______________________________ Curwood W itt, Jud ge8