1 The judgme nt form reflects that the appellant is to serve his sentenc e in “CCA .” This is app arently the

acro nym for Corre ctions Corp oration of A merica which privately manage s a local pena l facility for D avids on C ounty. Acc ord ingly, the ap pellan t’s sentenc e is one th at is perm itted by l aw for those counties who have contracted with the Te nnesse e D epa rtmen t of Co rrectio n to ho use co nvicted felons. See Tenn. Code Ann. §§ 40-35- 104(b), 40-35- 314. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs A ugust 13, 2003
STATE OF TENNESSEE v. PAUL PETTIB ONE
Direct Appeal from the Criminal Court for Davidson County No. 2002-B-936 Cheryl A. Blackburn, Judge

No. M2002-03021-CCA-R3-CD - F iled October 17, 2003

The appel lant, Paul Edward Pettibone, Jr., pled guilty to the offe nse of attempted aggrava

ted robbery , a Class C Felony . He was s entenced to four y ears asa Range I, standa

rd offender. The tr ial j udge ordered the appellant to serve his sentence in incarceration, but asserted that if the a ppellant
success fully

completed an addictio n treatme nt progr am known a s Life

line Ther apeutic Co mm un it y, he could ap ply to the court to suspend the re st of his sentence. 1 In this appeal as of rig ht, the appellant contends that the trial court erred by failing to grant

either an alternative

sentence or a term of pro bat ion after a period of confinement. After a review of this case, we conclude that the evidence did not support the grant of an alternative sentence or a term of probation

after a period of confinement and thus affirm the judgment of the trial cour t. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Tri al Court is

Affirme d.

J ERRY L. S MITH , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined.

William J. Steed, Assistant Public Defender (on appe al) , and Paul B. Seusy , Assistan

t Public Defender (at trial), Nashville, Tennessee, for the appellant, Paul Pettibone.

Paul G. Summers, Attorney Gene ral & Rep orter; K

athy D. Asling er, Assis tant Attor ney Genera l; Victor S. Johnson, District Attorney Gene ral; and Bret Gunn, Assistant District A

ttorney Genera l, for the appellee, State of Tennessee.-2- OPINION

Factua l Background

The appellant was indicted by the Davidson County Grand Jury for a ttempted aggravated
ro bb er y, which oc curred

on March

6, 2002. Pur suant to a

plea ag reemen t, the appellant pled

guilty to attempted aggravated

robbery, a

Class C felony. At the plea ag reement hearing, the state’s proof
was summa

rized as f ollows:
[O]n March the 6th of this ye ar . . . [victim] was getting out of her vehicle, I believe at the Media Play in Hickory Ho ll ow he re in Da vi ds on Co un ty, when the defendant approached her with what appear ed to be a long barreled revolver, pointed it at her and demanded her

car key s and money. She told him she didn’t have any mone

y, and she tried to get back in her car. . . . [Appellant] told her that he would kill h

er, soshe threw her c ar ke

ys . And then . . . [a ppel lant] just tur ned and walked away behind Me dia Play . The

polic e res ponded with

K-9, ran a

track, ca ught . . . [a ppel lant] , recovered the pellet gun, and . . . [appellant] admitted what he ha d done.

The trial cou

rt senten ced the a ppellant to the ag reed-u pon disposi

tion of four y ears a s a Ran ge I, standardoffender. The manner of servic e of the sentence was left to the discretion of the trial court and a sentencing hearing

was scheduled.

At the sentencing hearing, the tria l judge heard testimony

fro m both the victim and the appella nt. The victim’s testimony paralleled the state ’s summary of the events. The testimony was that on March 6, 2002, the victim, a female, parked in a handicapped parking place at Media Play in the Hickory Hollow ar

ea of Nashville. As she was exiting her vehicle, she was approached by

the appellant. He pointed a gun at her and t old her to hand ove r her pur se and car key s. At that time, the victim attempted to get back into her vehicle. The appellant then told her that he was g oing to kill he r i f s he di d n ot co mp ly w it h h is re qu es t. Th e v ic ti m t he n t hr ew he r c ar ke ys at the appe llant, which hit hi m in th e c he st an d fel l t o t he gr ou nd . T he ap pe ll an t t ur ne d a ro un d a nd wa lk ed aw ay. The victim ran into the store to call the police.

When the police responded, a K-9 officer w as called. Theappellant was located behind the store by the K-9 off

icer. He was taken into custody, broug ht around to the front of the store, and identified by the victim.

The appellant testified t hat he suffered from mental illness and that he was diag nosed by medical personnel several times over the last f ive years wit

h manicdepression or bipolar disorder. He require s medica

tion to stabilize his condition. He was released from the hospital, after treatment for his bipola

r disorde r, two da ys p rior to the

incident , was home

le ss, and was not ta

king his medication due to his o wn failur e to g et his prescription filled. Earlier in the day prior to the incident , the appellant consumed approximately two twe lve packs of

beer wi thou t eati ng anythin g.-3-

His testimony indicated that a “spur of the moment” decision “possessed me to turn around and pull a pistol on [the victim].” The pistol was a pellet or B B pistol th at he had stolen from WalMart and hoped to sell. When the victim threw her car key s at the appellant, he turned around and walkedapproximately one hundred y ards to an area behind Media Play , where he had stay ed for a couple of day s prior to the incident while trying to find somewhere to live.

The trial court denied alternative sentencing a nd ordered the appe lla nt to serv e out his sentence of four ye ars in incarceration. Howeve r, the tri al court

asserte d if the a

ppellant success fully completedthe Lifelines Therape utic Community program, he c ould apply to the co urt to have the remainder of his sentence suspended.

In this appeal, the appe

llant arg ues that th

e trial c ourt: (1) failed to

adequa tely consider his presumptive eligibility for alter native sentencing and

failedto state on the record adequate gr ounds for overcoming that presumption; (2) failed to adequa tely discuss how application of the f actors enu merated

in Tennessee Code Annotated section 40-35-103(1) was justified b y the record; (3) faile d to discuss any

mitigating or

enhancement factors; and (4) fa iled to take into account the appellant’s significant

potentia l for reh abilitation. The state contends that the trial court properly denied the appellant alternative sentencing and order ed him to undergo treatment while incarcer atedso that he has a better chance at succe ssful rehabilitation.

Standard of Review

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the determinations made by the c ourt from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action is conditioned u pon the af firmative showing in the record that the trial court conside red the sentencing principle s and all r elevant f acts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider the defe ndant’s potential for rehabilitation, the trial

and se nt encing hearing evidenc e, the pre-sentence report, the se ntencing principle s, sentencing alternative arg uments, the nature and character of the offense, theenhancing and mitigating factors, and the defenda nt’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b); A shb y , 823 S.W.2d at 169. We are to also recognize that the defenda nt bears “the burden of demonstrating that the sentence is improper.” Ashby , 823 S.W.2d at 169. Alternative Sentencing

A defenda

nt “who is a

n especi ally

mitigated offend

er or standard offe nder convicted of a Class C, D, or E felony is pre sumed to be a favorable candidate for a lternat ive sentencin g in the absence of evidence to the contrary .” Tenn. Code Ann. § 40-35-102(6). Fur thermore, un less sufficient evidenc e rebutsthe pres umption,” [t]he trial c ourt must pr esu me that a defendant sentenced to eight y ears or less and not an offender for whom incarceration is a priority is subject to alternative-4-

sente ncing, Ashby , 823 S.W.2d at 169, and that a sentence other tha n incarc eration

would re sult in successful rehabilitation . . . .” State v. Byrd , 861 S.W.2d 3 77, 379-8 0 (Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a).
However, all offen d ers who meet the criteria are not entitled to relief ; instead, sentencing issues must be determined by the f acts and circumstances of each case. S ee State v. Taylor , 744 S.W.2d 919, 922 ( Tenn. Crim. App. 198 7) (cit ing State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986)). Even if a

defenda nt is presu med to be a favorable candidate for a lternative sentencing under Tennessee Code Annotated section 40-35-102(6), the statutory presumption of an alternative sentenc e may

be overc ome if (A) [c]onfinement is necessary to protect society by restraining a defendant who has a long h istory of crimin al conduc

t; (B) [c]onfinement

is necessary

to avoid depreciating the seriousness of the offe nse or confinement is particularly suited to provide an effec tive deterrence to others likely to commit similar offenses; or (C) [m]easures less res tric tive than confinement have frequently or recently

been applied unsuccessfully

to the defendant . . . . Tenn. Code Ann. § 40-35-103(1)(A)-(C).

In choosing among possible sentencing a lternatives, the trial court should a lso consid er Tennessee Code Annotatedsection 40-35-103(5), which states, in pertinent part, “The potential or lack of potential for the rehabilitation or treatment of a defenda nt should be

consider ed in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-1 03(5); see also Statev. Dow dy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they relate to the potential for rehabilitation. See Statev. Nunley , 22 S.W.3d 282, 289 ( Tenn. Crim. App. 199 9); see also State v.Bunch , 646 S.W.2d 158, 160-61 (Tenn. 1983 ); State v. Z eolia , 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson , 919 S.W.2d 6 9, 84 (Te nn. Crim. A

pp. 1995) ; Dowdy , 894 S.W.2d at 305-06.
[I]t is obvious t

hat the in

tent of the legisla

ture is to e

ncourage altern atives to incarceration

in cases where defendants are sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However, it is also clear that there is an intentto i ncarcerate those defenda nts whose criminal histories indicate a clear disregard for the la

ws and mor

als of soc iety

and a fa

ilure of p ast effo

rts to rehabilitate.

State v. Chrisman , 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994).

The trial cou

rt’s dete rmination of whether the de

fendant is entitled to an alternative sentence and whether

the defendant is an appropriate candidate for full probation are two different inquiries that require two different burdens of proof. See Stat e v. Boggs , 932 S.W.2d 46 7, 477 (Te nn. Crim.2 The report list s the date of convict ion for both count s of dri ving un der the influen ce as “0 9/07 /199 5,” an d lists
one sente nce as “PET SUSP . SENT .- GRAN TE D (DU I2ND )” and t he ot her a s “OFF/ DUI 5TH - (P)DUI 2ND; $1,000 FINE + CO STS. 11/29 (S)PROB . + TREAT . + 120 HRS.PSW + 2YRS. REV . LIS. ”

3 On appeal, the appellant argues that t his Court should consider only t he testi mony of the appellant and th e presentence report as evidence of the appellant ’s crimi nal hist ory, not the ass ert ions of cou nselforthe stat e regarding convictions and arres ts whi ch did not appear on the present ence report . The appell ant al so argues that a hand written notat ion was added to th e origi nal pres entence report whi ch sta tes, “Totall y inc orrect - the TM has multipl e convictions for stol en pro perty the ft” and that this notatio n shou ld no t be co nside red b y this Co urt. Th e app ellant did not ob ject to the introduction of t

he presentence report. Further, his own testimony at the sentencing hearing i ndicated a more extensive cr iminal

hist ory th an that

reveal ed by the present ence report . The appell ant had an opportunit y atth e sentencing hearing to chall enge the pres entence report as inaccurate or i ncorrect and prepare a supplement to that report
or offer test imony t o rebut t

he inf ormation c ontain ed in the presentence report . He chose not to tak e any co rrectiv e
measures. Iss ues n ot ra ise d in t he t ria l cou rt w il l not

gener all y be con side red b y this Co urt on a ppe al. Simpson v. Fronti er Cmty. Credi t Uni on , 810 S.W .2d 1 47, 1 53 ( Te nn. 19 91) ; State v . Bra sfield , 973 S. W.2d 937, 948 (Ten n. Cri m. App. 199 7).
-5- App. 1996). Although Class C, D, and E felony offenders are presumed to be favora ble candidates for alternative sentencing, it is the defendant who ha s the burden of demonstrating his suitability f or total or immediate probation. State v. Bingham , 910 S.W.2d 448, 455 (Ten n. Crim. Ap

p. 1995); see Tenn. Code Ann. § 40-35-303(b).

In this case, the appellant

was convicted of attempted ag gr av at ed ro bb er y, a Cl as s C fe lo ny. As a Range I , standardoffender convicted of and sentenced to four years for this offense, there is no dispute th at the ap

pellant w as elig ible for alternative sentencing. See Tenn. Code Ann. §§ 40-35- 102(6), 4 0-35-303 (a); Byrd , 861 S.W.2d at 379-80. Thus, the trial court was required to consider probation as a sentencing option. See Tenn. Code Ann. § 40-35-303(b).

The record establis hes that the appellant, 46 ye ars of age at the time of sentencing , had several prior convictions including a felony conviction in 1975 for receiving stolen property . The presentencereport e stablishe d that the appella nt was ar rested in 1994 and 1995 for driving under the influence and was granted a suspended sente nce and probation for second offense driving unde r the influence, but the appellant admitted that he has “quite a few DUI s.” In testify ing about one of the DUI conviction s, the appellan t stated that while he was charged with a f ifth offense DUI, he

was eventua lly convicted of a second offense. 2 The presentence report also establishes that the defendant had a charge for a

ggravated assault which wa s retired. During the opening statements at the sentencing hearing, the state’s attorney asserted that the presentencereport

failed to reflect all of the

defendant’s convictions; however, he stated that he ha d
no certi fied cop ies of the se convictions and d id not make

a motion to a

mend the r

eport, in stea d relying on cross-examination of the appellant to sup plemen t the presentence report as to the ap pe ll an t’ s c ri mi na l h is to ry. 3 During cross-e

xamination b y the state, however , the appe llant cand idly mentioned other instances of criminal con duc t during his testimony, including se veral offenses not reflected in the-6-

presentencereport. The appellan t admitted to a citation for theft of property for shoplifting on February 25, 2002 at Rivergate Mall and a conviction for theft of merchandise under five hundred dollars at Ri ve rg at e M al l o n O ct ob er 31 , 2 00 1, fo r w hi ch he wa s f ou nd gu il ty a nd se rv ed ni ne ty d ays at thirty perce

nt. In fact, the appellant a dmitted to being arrested two or three times for shoplifting in the last f

ew years. Counsel fo

r the stat e questio ned the a

ppellant about spe cific ar

rests for theft occurring on October 8, 2001, September 29, 2001, and September 27, 2001. After

being questioned about these three thef

t ar rests, the appellant replied, “No sir [I do not re member all of them]. I haven’t kept track of them. I’m not say ing it didn’t happen. But if you’ re asking me to recall how many times I’ve been ar

rested for shoplifting, I don’ t know.” The appellant asserted that he did not have any arrests in Tennessee between 1983 and 1994. How ever, the appellant was questioned about
an arrest in Florida

in 1992, and

while he a

dmitted to t

he arre st, he did n ot reca

ll the par ticular d ate or circumst ances. T he appellant also

admitted that he was arrested in Colorado when he was nineteen ye ars old.

The appella

nt attend ed Fra nklin Hig h School un

til 1973, when he dropped out of school in the eleventh grade. He

went on to

obtain a G

ED in 1977. His employment history included several short-te rm, we ek ly w age jobs from 1999 to 2001 but that employment could not be verif ied. He testified that he had

worked all his life and that for the most part he had good jobs but that “in the last four o r five ye ars my mother passed away a nd my ex-wife passed a

way. And I ’ve kind of l e t things slide since then.”

At 6'1" a nd 165 pounds, the ap

pell ant desc ribes his physical hea lth as “good” although he is prescr ibed lithiu m for mani c depression/bipolar di so rd er an d d ri nk s u p t o t wo fi ft hs of li qu or da il y. He reported his last use of marijuana in 1990. The appellant participated in and completed several tr eatment programs for alcoholism including one at Cumberland Heights in 2001 and one a t Tennessee Christian Medical Center in 2000. He was last treated for bipolar disorde r at Vander bilt in 2002.

The presentence report

established that the appellant had a somewhat disjointed family life. His mother’sname wa s not in the report. His fathe

r repor tedly lives in F lorida a nd his sister resides in Brentwood. Theappellant has two ex-wives and a total of four children. The report indicated that two of the children are adults and he does not have custody of

the other two. He pa

ys $ 400 monthly in child supp ort. The a

ppellant reporte d a child s upport ar reara ge, but stated tha

t he norma

lly gets a garnishment on his wages to pay the support. The presen tence r eport stated tha

t “[appell ant] wished he had a closer relationship with his children and his father.”

The appellant expressed remorse about the incident, stating, “I ’m extremely sorry for what happened. . . . And then for her to have to sit up here and y ou question her when I’m the one that did something to her, it made me feel even worse.”

The appella

nt testified that whil e in custo dy a wait ing the sentencing hearing, he secured conditional acceptance into two halfway house programs, Shipley

House and Oxford House, which offer alcohol t reatmen t progr ams. While

recognizing his alcohol problem, the appellant expressed-7-

his desire for

treatment and a

“willingness to do what I’m told to do.” He a lso informed the court that a caseworker would help him manage his bipolar disorder. After receiving testimony from the victim and the appellant, the trial court found:

All right. Well, . . . [appellant], you pled guilty to attempted aggr ava ted rob ber y. It is a C felony. The ag

reed uponsentence is four years as a Range 1 standard of fender, which means you ar

e presumed eligible [for probation]. However, just because y ou are presume d eligib le doesn’t necessa rily mean y ou are e ligible in the sens e y ou still have to convince me that you a re suitable for an alterna tiv e sentence, that

is, complete suspension of your sentenc e. I have to look at whether or not ther e have been measure s le ast restrictive frequently or recently

applied to you, what y

our criminal history is and what’s nec essary to avoid the depreciating the seriousness of this offense. Actually, . . . [the appellant] presents a pr etty remorsef

ul picture. . . .

That being said, . . . [appellant], you have n’t convinced

me at this p oint. Obvio

usly you h ave notbeen in a position to participate in any programs because of wher e you’re located. W ell, you now w ill be. I want you to ente

r the L ifelinesprogra

m, because the problem is - - it’s not just drugs andalcohol. It’s a whole lifesty le kind of issue. You need some life skills, and you need a few other things. I ’m not saying I’ll ne ver grant y ou probation but just not at this point. I just don’t think that - - I think there’ s b een too many times in y our past where other alternatives have been applied. So I’m going to orde r you into the

Life lines pro gram. I

f y ou succe ssfully complete that and have no write-ups, then . . . [counsel] can app ly to suspend y our s entence. But just not at this time, I’m not sufficiently convinced that’s the appropriate resolution to this. . . .

The appellant asserts onappeal that the trial court failed to make the required findings of fact
on the record so as to accord the sente nce in thi s case the presum ption of c orrect

ness as prescribed by Tenness ee Code A

nnotated section 4 0-35-401 (d). While the trial court did not make s pecific findi ngs of fact, it did e xpress co ncern about the appellant’s previous criminal history , alcohol problemsand history of trea tmentfailure, concluding that he needed to be placed in a program

where he would be forced to deal with his alcohol and lifesty le issues.

After a de novo review of the record, we note that ther e are fac tors which weigh in the appellant’s favor for probation, namely his successful proactive attempts to secure conditional acceptance

at two halfway

houses and his rec ognition of his own problems with alcohol and bipolar disorder. Howeve

r, the ap pellant h as numer

ous prior encounte rs with the leg al sy stem, and yet continued to c ommit crimes. Although the appellant’s actions are likely the result of his mental health and alcohol pro blem s, it is equally evident that past attempts to rehabilitate him have freque ntly and recently

been unsuccessful. He attended and completed alcohol treatme nt progr ams-8-

at least two times since 2000, and admits that he was not taking his medication for bipolar disorder at the time of the offense. The appe llant, has not, in

our view , satisfied the burd en of showing his entitlement

to immediate p roba tion. Thus, after considering the circumstance s of the offense, including appellant’s use and abuse of alcohol, appellant’s potential for rehabilitation in light of two recent failed attempts at such, and his criminal history as established by

the presentence report and his own admissions, we conclude that there i s suffici ent e vidence in the record to rebut the appellant’s presumption of entitlement to alternative sentencing. The judgment of the trial court is therefore AFFI

RMED.

___________________________________ JERRY L. SMITH, JUDGE