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

Briefs M arch 19, 2003

STATE O F TENN ESSEE v. GEORGE C. PE ERY, III
Direct Appeal from the Criminal Court of Sullivan County

No. S45,062 R. Jerry Beck, Judge

No. E2002-01682-CCA-R3-CD June 13, 2003

Defend ant, George C. Peery , III, appe als his sentence of split confinement imposed upon his plea of guilt to aggravated bur

glary , a Class C felony, and theft und er $500, a Class A mi sde mea nor . In his appeal, Defend ant requ ests full probation and challenges the imposition of a one-y ear period of confinement

followed by two y

ears probation in the community corrections program for his felony conviction. Defendant does not c halle nge his misd emeano r sent ence. W e affir m the t rial c ourt's denial of full probation but reverse the one-y ear period of confinement and remand for modification of the judgment to reflect a period of confine me nt of 10.8 months to be served in the local jail or workhouse. In a

ddition, because th

ere is a conflic t betwee

n the tra nscript a nd the ju dgment, we remand t his case for cor rection of the jud

gment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part and Modified in Part

T HOMAS T. W OODA LL , J., deliver ed the opinion of the

court, in which D AVID G. H AYES and J OHN E VERE TT W IL LI AMS , JJ., joined.
Stephen M. Wallace, District Public Defen der; and J oseph F. Harrison, Assistant Public Defender, Blo unt vi ll e, T enn ess ee, for th e ap pel lan t, Geo rge C. Pee ry, III.

Paul G. Summers , Attorne y General and Repor

ter; Pete r M. Coug

hlan, Ass istant Atto

rney Genera l; H. Greel ey

Well s, Jr., District Attorney Genera l; and Joseph Eugene Perrin, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

On October 4 , 2000, Jeff Peters told the Bristol Police Department that his residence h a d been burglarized. Several pieces of personal propert y w ere stole

n includin g two re ciproca

ting saw s. Mr. Peters sa

id there was no sign of a force d entry and surmised tha t the intruders hadused a spare key which was hidden under a sprinkler in the y ard. A short while later, Detective Charlie Thomas interviewed

De fe nd an t i n c on ne ct io n w it h t he bu rg la ry. During the interview, Defendant confessed-2-

his involvement because he wanted to “straighte n things out .” Acc ording to Defendant, he drove Ke i th Bowman, the boyfriend of Mr. Peters’ daughter, to the Peter s’ residence knowing that Mr. Bowman intended t o “rob” t h e househ old. Def

endant w atched a s Mr. Bow man exited t he house carry ing a box of stol en items including the saws. Defend ant then d rove Mr. Bowman t

o Bluff City
so that Mr. Bowmancou ld sell the saws to his uncle, Mark White. Although Defendant was not present when the sale was made, he expected to rece ive some of the proceeds for his role i n the offense . Mr. Bow man, howe ver, nev er paid D efenda

nt his shar

e of the s ales pro ceeds.

Base d on the inf

ormation p

rovided b y D efenda

nt, Mr. Pet

ers’ re ciproca

ting saw s w er e recovered from Mr. White. Mr. White’ s stateme nt was pa rtially consiste nt with Defendant’s except that Mr. Whi

te said tha

t the sale of the sa ws took pla

ce at his job site in B ristol.

On April11, 2001, Defendant was indicted on one count of aggr avated burglar

y, a Class C fe lo ny, and one count of theft of property unde

r $500.00, a

Class A misdemeanor. On February 21, 2002, Defendant

pled guilty

to both cha

rges. As recommended by the plea agreement, Def

endant received a three-y ear sentence as a Rang e I standard offender for the

Class C felony conviction and
an eleven month, twenty-nine day sentenc e for the misdemeanor charge , with the s entence s t o be served c oncurre

ntly for an effectiv e sentence of thr ee years.
The trial court held a sentencinghearing on June 28, 2002 to determine the manner of service of th e s en te nc e. Du ri ng hi s t es ti mo ny, Defendant said that hewas twenty-two y ears old, and lived in Bristol with his wife and baby daug hter. Defendant’s wife did not work outside the home, and Defendant

was the fa mil y’ s sole supp ort. Def endant currently

worked f

or his fa ther in his automobile

repair and lands caping

company receiving approx im at el y $2 00 .0 0 p er we ek in pa y. Alth ough Defend ant had dr opped out of high s chool in th

e tenth grade, he had completed

his G.E.D. in 1997 and i ntended t

o enroll in Northeast State Technical Community Colleg e as soon as he was able to secur e financ ing. Defendant

a dmitted he had us ed alcohol and mar ijuana in the past. However, Defendant said that his last drink of alcohol was on New Year’s Eve, 2001, and he had not used marijuana in about a y ear. During his interview with the Bristol Police Depa rtment , Defendant freely

confessed and agreed to testify ag ainst Mr. Bowman. Defendant acce pted responsibility for

his actions and expressed remorse for the offense.

Defendant

testifiedthat

he had charges pending

in the Kingsport General Sessions Court for dri ving on a suspended license, possession of a suspended license, violation of the lig htlaw an d violation of the re gistra

tion laws. Although the pre-sentence repor t showed that he had additional charges pending in the Bristol General Sessions Court for theft of property under $500.00, and possession of marijuana and drug paraphe rnalia, the general sessions court wasunable to f ind a
warran t when Defendant

inquired about the charg es.

In response to the trial court’s inquiries , Defen dant said that the a ssault ch arge r

efere nced in his juvenile record

had been dism

issed. Ho wever, Defend ant admitt ed he ha d been c ommitted to-3-

the custody

of the De

partmen t of Childr

en’s Ser vices in 1 997 as a r

esult of h is other juvenile offenses and spent nine months in the Ta ft Y outh Center. On cross-examination, Defendant revealed that his other juvenile offenses included convictions for possession of a load ed weap on, sh opli fting, automobile

burglary and theft, destruction of property , contributing to the delinquency of a minor, various traffic and driving related convictions and two convictions for “grand larceny .” Defendant explained that the girl involved in his contributing to the delinquency of a minor conviction was now his wife, and

the offe nse occurred when the two of them ran aw ay tog ether. Defendant said that he had not spe

nt any time in con

finemen t as a re sult of his convicti ons except for his time at the Taft Youth Center.

Defendant’s father , Mr. Geo rge Pe ery , Jr., veri fied Def endant’ s emp loymen t with his company and a

greed to supervise Defenda nt during any

probation the trial court might grant. Mr. Peery admitted that Defendant had encountered problems in the past but was doing much better at the ti me of t he sen tenci ng heari ng.

In determining whether a period of con fine ment was appropriate, the trial court’s primary
concernwas the number of convictions Defend ant had r eceive d over a r

elativel y sh ort perio d of time while a juvenil e. The tr

ial cour t a lso noted that it bel

ieved tha t most of De

fendant ’s juveni le deli nquent

acts wou ld have c onstituted felony crimes if Defend ant had c ommitted the offen ses a s an adult. The trial court observed that the opportunities for rehabilitation extended b y the juvenil e court sys tem appa

rently had little effect on Defendant’s conduct, and D efendant had not spent one day in confi nement other than the restrictions encountered at the Taft Youth Center. H owever, because of his youthful appear

ance, the trial court was reluctant to place Defendant in the Tennessee Department of Correction. Moreover, the trial cou rt accr edited Mr . Peery ’s testimo ny t o a cert ain extent tha t his son’s behavior had improved over recent months. Base d on these factors, the trial court denied Defendant full probation and imposed a one-y ear per iod of incarceration as part of Defendant’s split-confinement sentence.

Defendant

now appe als his sen

tence a rguing first tha t the tria l court e rred in n ot gran

ting him full probation. Secondly, if split confinement is appr opriate, Defend ant argues that the trial court erred in sentencing De

fendant to a period o f confinement in e xcess of the relea se elig ibility date applicable to Defendant’s sentence for his felony conviction.

A. Standard of Review

When a defendant challenges the le ngth or the manner of service of his or her sentenc e, this Courtmust conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. C ode Ann. § 40-35-40 1(d); State v. I mfeld , 70 S.W.3d 698, 704 (Tenn. 2002). This presumption, however, is contingent upon an affirmative showing in the record tha t the trial cou rt considered the sentencing principles and a ll relevant facts and circumstances. Stat e v
. Pettus , 98 6 S.W.2d 540, 543-44 (Tenn. 1999). If the rec ord fails to show such consideration, the review of the se nt en ce is pu re ly de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).-4-

In making its sentencing determinations the trial court must consider: (1) t he evide nce presented at the trial and sentencing hearing ; (2) the pre-sentence report; (3) the principles of sentencing and arguments as to sentencing a lternatives; (4) the nature and chara cteristics of the criminal conduct; (5) any appropriate enhancement and mitigating fa c tors; (6) the defendant’s potential or lack of potential for rehabilitation or treatment; and (7) a n y st ate ments made by Defendant

in his own behalf. Tenn. Code Ann. §§ 40-35-103 and - 210; Stat e v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). If the t rial court has imposed a lawful sentence by following the statutory sentencing procedure, given due cons ideration and proper weight to the factors and sente

ncing p rinciple s, and mad

e finding s of fac t adequa

tely supported by the

record , this Courtmay not modify

the sentence even if it would have prefe rred a differen

t result. State v. Fletcher , 805 S.W.2d 78 5, 789 (Te nn. Crim. A

pp. 1991) . The def

endant b ea rs the burden of showing that his sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

Becau se D efen dant doesnot fall w ithin the c lass of of fender s for who m incarc eration is a priority and is a st

andard o ffende

r convic ted of a Cl ass C felony, Def endant is presumed to be an eligible candi date fo r alte rnati ve sen tenci ng. Tenn. Code Ann. §§ 40-35-102(5) and (6). Moreover, Defend ant, whose impo sed sente nce is less than eight y ears, is eligible to serve his alternative sentence on full probation. Id. -303(a). The trial court extended the presumption of alterna tiv e sentencing to Defenda nt but sentenced him to split confinement instead of probation. See Tenn. Code Ann. § 40-35-306. Defendant was ordere d to serve one y ear in the local jail with the balance of his three-ye ar sentence served on supervised prob ation w ith partic ipation in t he commun

ity corrections program as a c ondition of probation. See Tenn. Code Ann. § 40-36-106(f).

Defendant

argue s that the t

rial court erred i n not granti ng him full p robat ion. Alth ough eligible, a defendant is not automatic ally

entitled t

o fullprobatio n and bears the burden of establishing that f

ull pr obation will be in the best interests of the defendant and the public. Tenn. Code Ann. § 40-35-303(b) (1997) (Sentencing Commissio n Comments) ; State v. Hartley , 818 S.W.2d 370, 373 ( Tenn. Cri m. App. 199 1); State v . Bingh am , 910 S.W.2d 448, 456 (T enn. Crim. App. 1995), overrule d in p art, State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). In determining whether to grant or deny full probation, the trial c ourt may consider the circumstances of the offense, the defendant’s potential or lack of potential for reha bilitation, whether

full prob ation will

unduly deprec iatethe serio

usness of the offe nse, and whether a sentence other

than full p

robation would provide an effective de

terren t to otherslikely

to commit sim

ilar cri mes. Tenn . Code Ann. §§ 40-35-21 0(b)(4) , 40-35-1 03(5), 40 -35-103( 1)(B); Bingham , 910 S.W.2d at 456.

In determining if incarceration is appropria te, a trial court may c onsider the need to protect society by restraining

a defendant having a long histor y of crimin al conduct, the nee d to avoid depreciating the seriousness of the offense, whether conf inement is particular ly appropr iate to effec tively

deter ot hers like ly to commit simil ar offe

nses, and whether less restrictive measures have often or recently

been unsuccessfully

applied to the def

endant. Tenn. Code Ann. § 40-35-103(1); see also Ashby , 823 S.W.2d at 169.-5-

There is no mathematical equation to be utilized in determining sentencing alternatives. Not only should the sentence fit the offense, but it should fit the offender as we ll. Tenn. Code Ann. § 40 -35-103(2); State v. Batey , 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed, individualized punishmen t is the ess ence of

alte rnative sentencing. State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). Sentencing must be determined on a case-by -case basis, tailoring each sentence to that particular defendant based upon the facts of that case and the circumstances of

that defendant. State v. M

oss , 727 S.W.2d 229, 235 (Tenn. 1986).

B. Full Probation

The trial court concluded that a period of c onfinem ent was appropriate because of Defendant’s extensive

juvenile record consis t ing of two convictions for “grand lar ceny”and conviction s for posse ssion of a loaded w eapon, s hoplifting , automobi le burg lary and thef

t, destruction of property, c ontributing to the delinquency of a minor, and various traffic and driving related convicti ons. Def

endant, o n the othe

r hand, a rgues t hat i ncarceration was inap propria te because his reco rd as an a

dult is spar se and do es not in d icate that measures less drastic than confinement

have been applied unsuccessfully

. Based o n th is argu ment, Def

endant f eels tha t his juvenile r ecord shou ld be disregarded in the determination of the manne r in which his sentence should be served. Although admitted ly D efenda

nt’s adul t crimina l recor d is not as long as the record he amassed as a juvenile, Defendant had just tu rned twenty- one when he committed the present offense s. This Court h as previ ously determi ned that a d efendant’s “juvenile record of c riminal conduct may proper ly be cons idered in ass essin g a suitable sentenceupon a felony c onviction by an adult.” State v. Stockton , 733 S.W.2d 1 11 (Tenn . Crim. App. 1986); Tenn. Code Ann. § 37-1-133. Defendant’s extensive

juvenile record supports t

he trial c ourt’s finding tha t Defend ant ha s a long history of criminal conduc t. Tenn. Code Ann. § 40-35-103(1)(A).
Moreover, althoug

h not discu ssed by

the tr ial court, Defendant’s inability to abide by the probationary

terms exte

nded by the juven ile cour ts clear ly s upports a conclusion that measure s less restrictive than confine

ment have

recent ly a nd frequ ently

been unsuccessful. Tenn. Code Ann. § 40- 35-103(1)(C). Beginning in March, 1 997, sh ortly before he turned seventeen, Defendant wa s convictedof reckless driving and placed in the custody of

the Tennessee Department of Children’s Services. Four day s later he was charged with curfe w violation. In April, 1997, he was convicted again of reck less driving followed by

convictions for destruction of property and “grand larceny

” on May 26, 1977 . Defendant was also charg ed with two counts of aggravate d assault but testified at the s entenci ng hea

ring tha t these c harge s were la

ter dismis sed. As a

result of the Ma y 2 6 convicti ons, Defendant was sen ten ced to six months, the sentence was suspended, and Defendant was placed on probation. However, two days later, on Ma

y 28, 1997, Defendant was arrested and later convicted of burglary

of an automobile and theft. On May 29, 1997, Defend ant wa s again
ar re st ed fo r “ gr an d l ar ce ny” followed by ar rests for shoplifting on June 5, 1997, and possession of
a loaded weapon on June 8, 1997. He was convicted of all three offenses and a gain placed on probation. Defendant testified that he also used illegal drug s during this time.-6-

The trial court also considered the applicability of enhancement factor (20) in deter mining the manner of service of Defenda nt’s sentence and conc luded that Defendant had committed offenses
as a juvenile which would constitute felonies if committed as an adult. Tenn. Code Ann. § 40-35- 114(20). Based o n the limite d informa tion conta

in ed in the pr e-sente

nce rep ort, howe

ver, only Defendant’s conviction for burglary of an automobile wou ld qual ify as a fe lony if Defe

ndant had committed the offe

nse as an adult. See Tenn. Code Ann. §§ 39-14-402(a)(4) and (d). The acts which led to “grand larceny

” charges occurr

ed after 1989, and therefore should have been designated as “theft”offenses. See Tenn. Code Ann. § 39-14-10 1. We would have to a ssumefrom this record that the two theft s were f

elonies i nvo lving property greater than $500.00 in value when they were designated

as “grand larcenies” ; we are unable to do so, however , becau se “gr and” ve rsus “pe tit” larceny depen ded on a valu e gr eater than $200.00 under prior law. See Tenn. Code Ann. § 39-3- 1103 (repealed 1989). I

n addition, whether or not Def endant’ s c onvictions for shoplifting and destruction of property would constitute felonies depends on the value of the property stolen or destroyed, and the r

ecord do es not reveal th at information. See Tenn. Code Ann. §§ 39-14-103, - 105, -146 and -408.

Nonetheless, the record amply supports the trial court’s sentence of a period of confi nement. Defendant’s numerousconvicti ons as a juvenil e, which inc lude at le ast one of fense th at would constitute a felony, a

nd the repeated but unsuccessful periods of probatio n extended

to Defendant without any noticea

ble rehabilitative effect, support the trial court’s conc lusion that some period of confinement

is neces sary . Based

upon our r

eview, w e conclu de that De fendant has failed to demonstrate that he is entitled to full probation.
C. Split Confi nement Defendant argues, and

the State conced es, that the trial court’s imposition of a sentence of confinement

in excess of the time required for Defendant to reach

his eligibility date of re

lease was improper. We agree. This Court has previously determined that

the period of confinement which
a defendant is ordered to serve in a split confinement ca nnot exceed the defendant’s relea s e eligibil ity date. Thornton v . State , No. E200 3-00393- CCA-R8-PC, 2003 WL 1233478 (Tenn. Cri m. App., Knoxville, M arch 17, 2003); State v. Hudson, No. E2001-00377-CCA-R3- CD, 200 2 WL 264625 (Tenn. Crim. App ., Knoxvill e, February 19, 2002), perm. to appeal denied (Tenn. 2002); State v. Bradshaw , No. 01C01 -981 0-CR- 00439 , 1999WL 737871 (Tenn. Crim. App., Knoxville, Sept. 22, 1999).

A Range I st andard offend er is e ligib le for releas e after servi ng th irty perce nt of his or her sentenc e. Tenn. Code Ann. § 40-35-5 01(c). T he sente ncing r ange f or a ClassC felony

is three to
s ix years. Te

nn. Code Ann. § 40-35-112(a)(3). With a three-y ear minimum senten ce, Defendan t will be eligible for release af ter 10.8 months. Therefore, we remand this cas e for en tr y of an amended judgment reflecting a sentenc e of split confinement with 10.8 months to be served in the local jail or workhouse concurrent ly with the misdemeanor sentence and the balance se rved on probation with participation in the community corr ections program as a condition of probation.-7-

D. Corr ection of J

udgment

At the sente ncing hearing , the tria

l court sta ted that it intended to sentence Def

endant to split confinement

with the period of confinement to be served in the Sullivan County Jail. The judgment form, on the other hand, reflects that Defendant is sentenc ed to the Department of Correction for three years. A

lthough the “special conditions” se ction of the judgment say s that Defendant will serve
one year in jail, the judg

ment form

shows tha

t Defend ant is to se

rve his sentenc e in the c ommunity corrections program.

The judgment is not clear, therefore, whether Defe ndant was placed on

probation as part of his split confinement or placed in the community corrections program, but the distinction between the two forms of alter

native se ntencing is signific ant. A defendant who is permitte d to partic ipate in the community

corrections prog

ram is ac tually

serving his sentenc e while

in the program in lieu of incarcera tion. Tenn . Code Ann .§ 40-36- 106(e)( 1). Conve rsely , a defe

ndant’s s entence

is suspended while he is on probation. Tenn. Code Ann. § 40-35-303(c). I n the event of revocation,
a defendant on probation receiv es no cre dit for time served, but a par

ticipant i n the comm

unity corrections progra

m does. CompareTenn. Code Ann. § 40-35-310 with Tenn. Code Ann. § 40-36- 106(e)(3)(B). After a proba tion is rev oked, the de fendan t’s or igi nal sent ence is executed. Tenn. Code Ann. § 40-35-310. If a de fendant is removed

from a community corrections program, the trial court may rese

ntence the defendant for a per iod of incarceration up to the max imum sentence provided for the offense less credit for the time spent in the pr ogram. Tenn. Code Ann. § 40-36- 106(e)( 4); see State v. Crook , 2 S.W.3d 238, 240 (Tenn. Crim. App. 1998).

When there is a conflict

between the transcript of evidence a nd the judgment, the transcript controls

. State v. M

oore , 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). The transcr ipt of the sentencing hearing shows that the trial court intended to sentence Defend ant to split confinement pursuant to Tenne ssee Code

Annotate d secti on 40 -35-306 with partic ipation in t he commun

ity corrections program a condition of probation. Accordingly, we rema nd this case to the trial court for correction of the

judgmen t to reflect the ac tual se ntence i mposed asset forth in the tra nscript. Tenn. R. Crim. P. 36.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgmen t rega rding th e approp riatene ss of split conf

inement b ut r emand the

case for entry of

an amended judgment reflecting a period of confinement

of 10.8 mon

ths and to c orrect

ly state the sentence imposed as set forth in this opinion.

____________________________________ THOMAS T. WOODALL , JUDGE