### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J anuary

25, 2005
STATE O F TENN ESSEE v. ANTHO NY D. AZI Z
Appeal from the Criminal Court for Sullivan County No. S47,471 R. Jerry Beck, Judge

No. E2004-01504-CCA-R3-CD - Filed Marc h 3, 2005

The defenda

nt, Anthon

y D . Aziz, appe als from t he Sulliva

n County Criminal Co

urt’s de nial of alterna tive sente ncing. We affir

m the judg

ment. Tenn. R. App.P. 3; Judg ment of the Crim inal Court is Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opi nion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined. StephenM. Wallace , Distric t Public De fe nd er ; a nd Wi ll ia m A . K en ne dy, Assistant District Pu

blic Defe nder , for the A ppel lant, Anthony

D. Azi z.
Paul G. Summers , Attorney Gene ral & Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorn ey Gene ral ; and Barry

Staubus, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION
The defenda

nt pleade d guilty

to attempt

to comm it aggr avated r

obbery , a Class C fe lo ny, and agreed to an eig ht-year , Range II

sentence. The plea agre ement called for the trial court’s determining the manner of service of the sentence. The trial cour t accepted

the plea on March 15, 2004, conducted a sentencing hear ing on May

28, 2004, a

nd enter ed its judgment deny

ing alternative sentenc ing on June

8, 2004. The defen

dant file d a timely

notice of appeal. From the transcript of the plea submission hearing, we glean that on December 18, 2002, the defendant

and a co-defendant were pla ying c ards at the American Le gion club and noticed that the 73-yea

r-old victim carried a substantialamount of cash in his wallet. After the victim went1 Th e pre senten ce rep ort reflec ts that the p air stole a ppr oxim ately $1 ,100 from th e victim

. -2- home, th e t wo you ng er me n w en t i nt o t he vi ct im ’s ho us e, to ok hi s m on ey, 1 and beat him, causing injuries t hat resu lted in sur gery and permanent imp airment.

At the sentencing hearing, the de fendant’s mother testified that the defendant’s fouryear involvement with drugs led him to commit the offens e. She o pined that drug rehabilitation would correct his lawless behavior. The defe ndant’s aunt

testified that drugs caused the defendant to change from a caring individual who helped her c are for an invalid relative, to one who “didn’t care about any

thing.”
The presentence report showed that the def endant had prior m isdemeanor conviction s of p ublic intoxication, reckless driving, assault, domestic assault, vandalism, and various traffi c offens es. Th e reckl ess dr ivin g and as sault offens es occu rred wh ile t he curr ent cas e was pe ndin g.

The trial court observed that the defendant was indicted on a charge of ag gravated
ro bb er y, a Class B offense, but entered a best-in terests p lea to at te mp t t o c om mi t a ggr av at ed ro bb er y, a Class C offense. He agreed to be se ntenced as a Range II offender as a means of barg aining for
a Class C con

viction of fense, e ven thoug h his prior criminal record did not impli cate Ran

ge II sta tus. The court re

viewed the defen

dant’ s crimin al record and his social history . It cited his assaultive conduct toward his live-in girlfriend and his drug history . The court found that the defendant’s “[p]robation supervision is extremely poor.”

The trial court found

that the defendant had

a history of cr

iminal behavior, that he was
a leader in the commission of the offense, that the e lderly and intoxic ated vic tim was pa rticular ly vulnerable, that the victim’s injuries were particularly great, and that the defendant ha d a previous history of non-compliance with conditions of release into the community

. See Tenn. Code Ann. § 40-35-114(2), (3), (5), (6), (9) (2003) (stating se ntence enhancement

factors, respectively , for prior criminal behavior or convictions, lead ing the co mmission of the offe nse, off ending agains t a particu larly vulnerable victim, causing particularly g

reat injuries, and failing

in the past to observe conditions for rele ase into the community). The court found no mitigating factors. See id. § 40-35- 113 (stating sentence mitigating fa ctors).
The trial court also found that deterrence was a fa ctor in determining the manner of service of the sentence because the offe nse was purposefully

carried out as a means of

financial gain. The court al so found that the de fendant ’s prosp e cts for rehabilitation were meage r in view of the defendant’s lack of c andor an d acceptance of

responsi bility for the offense, as reflected byhis preplea statement that deflected blame upon theco -d ef en da nt . T he co ur t, ac co rd in gl y, denied any f orm of alterna tive sente ncing a nd order ed the ei ght-y

ear sen tence se rved in th e Depar

tment o f Cor

rection.

Onappeal, the defendant challeng es the order of incarcera tion; however, we agree with the st ate th at the record suppo rts t he den ial of alter nativ e sent encin g.-3- Inthis case involving a challenge to the manne r of service of a

sentence, this court must conduct a de novo review of the record with a presumption that the deter minations made by the trial court are correct. See Tenn. Cod e Ann. § 40 -35-401( d) (2003) ; see al so State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991) (presumption is “conditioned upon the affirmat ive showing in the record that the trial court considere d the sen tencing principles and all relevant fac ts and circumstances”). The burden of showing that the sentence is improper rests upo n t he defe

ndant. State v. Bolling , 75 S.W.3d 418, 420 (Tenn. Crim. App. 2001). If appellate re view reflects the trial court properly c onsidered all relevant factors and its findings of fact are adequa tely supported by

the record, this court must affirm the sentence, even if we would have preferred a differe ntresult. Id.
The trial court determines the propriety of sentencing alternatives by considering (1) the evidence, if any , received at the trial and the sentencing hearing ; (2) the presentence report; (3) the principle s of sente

ncing a nd arg uments as to sent e ncing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and informa tion offered by

the parties
on the enhancement

and mitig ating f

actors; ( 6) any

statemen ts the def endant w ishes to ma

ke in the defendant’s behalf about sentencing; and (7) the potential for rehabilitation or treat

ment. Tenn. Code Ann. § 40-35-210(a), (b) (200 3); id. § 40-35-103(5). The evidence and information off ered on the enhancement

and mitig ating f

actors a re rele vant to the

determin ation of the approp

riate combination of sentencing alternatives that shall be imposed on the defe ndant. Bolling , 75 S.W.3d at 421; Tenn. Code Ann. § 40-35-210(b)(5) (2003).

A defendant who is an especially mitig ated or standard offender convicte d of a Class C, D, or E felony is pre sumed to be a favorable candidate for a lternative sentencing

options in the absence of evidence to the contrary . Tenn. Code Ann. § 40-35-102(6) (2003). In the present case , the defenda

nt was sen

tenced a s a multiple

offende r and did n

ot enjoy presumpt

i vely fa vorable candidacy for alternative sentencing. I n this situation, the state had no burden of o ver coming the presumption and of justifying c onfinement. State v. Joshua L. W ebster , No. E1999-02203 CCA-R3-CD, slip. op. at3 (Tenn. Crim. App. , Knoxville, Dec. 4, 2 000); see Tenn. Code Ann. § 40- 35-103(1) (2003).

Lack of candor

and c redibility is an indication of a def endant’s potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Cr im. App. 19 99); State v. Ze olia , 928 S.W.2d 457, 463 ( Tenn. Cri m. App. 199 6). The tr

ial j udge is i

n the best

position to a ssess a defendant’s credibility and potential for rehabilitation. A defendant’s potential for rehabilitation “should be considered in determining the sentence alternative.” Tenn. Code Ann. § 40-35-103(5) (2003). A trial judge may sentence a

defendant to a term of incarcera tion based

solely on a need for dete rrence when the record contains evidenc e which would enab le a reasona ble pers on to conclude that dete

rrence is neede d in th e commun ity, jurisdiction, or state and which shows that incarceration

may rationa lly s erve as

a deter rent to others simila

rly situ ated and likely

to commit similar crimes. State v. Hooper , 29 S.W.3d 1, 14 (Tenn. 2000).-4- Inthe present case, we conclude t hat t he trial court’s reliance upon deterre nce was notsupported in the recor d. The tri al c ourt aptly found tha

t the def endant’ s crime w as deter

rable because it resulted

from pur poseful, profit-driven behavior. See Hooper , 29 S.W.3d at 11 (“Actions that are the result of intentiona

l, knowing , or reckless behavio r or th ose motiva ted by a desire to pr ofi tfrom illegal activity are probably

more deterrable than those which are not the r esult of a conscious effort to break the law.”). That said, the tria l court failed to find that deterrence was needed in the community, jurisdiction, or state relative to the conviction offense, and nothing in the record supports such a conclusion.

Despite a lack of evidencesupporting deterr ence as a basis f or order ing con finemen

t, the record otherwise fully supports the trial c ourt’s judgment. The defendant made no showing that justified full probation. See State v. Adam Shor t , No. 03C01-9703-CC-00090, slip op. at 4 (Tenn. Crim. App., Kno xville, Jan. 28 , 1998) (d efenda nt bears burden o f establi shing en titlement t

o full probation). The defendant was not eligible for community c orrections, see Tenn. Code Ann. § 40- 36 -106(a) (1)(C) (2003) (excluding community c orrections alternative for offenders committing violentoffenses), and he failed to demonstrate that spec ial needs such as drug rehabilitation justified
anexemption from the normal eligibility require ments, see id. § 40-36-106(c). E ssentially, the elimination of these

alterna tives to full inca

rcera tion rele gates t

he defe ndant to a claim tha t he should have received a sentence

with a component of partial probation.

We hold thatthe record supports the denial of any probation. The defendant’s lack of rehabilitative potential is evinced not only by the trial court’s finding of a lack of credibility and candor, but also by the defe ndant’s history of off

endin g a nd of failing to fulfill conditions of probation.

Inshort, the trial court’s order of full confinement is justified o n the rec ord and is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE