FILED

October 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9701-CR-00005

)

Appellee, ) 

) SHELBY COUNTY

)

V. ) 

) HON. ARTHUR T. BENNETT,

CONNIE L. FULTON, ) JUDGE

) 

Appellant. ) (THEFT OVER $500.00) 

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT M. BRANNON, JR. JOHN KNOX WALKUP 

295 Washington, Suite 3 Attorney General & Reporter

Memphis, TN 38103 

DEBORAH A. TULLIS 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

JOHN W. PIEROTTI

District Attorney General

PERRY HAYES 

Assistant District Attorney General

201 Poplar Street, Suite 301

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Connie L. Fulton, appeals as of right the determination of

the Shelby County Criminal Court that the sentences she received for various

convictions should be served by incarceration and not by alternative sentencing.

The Defendant entered guilty pleas to three counts of theft, one count of reckless

driving, and one count of driving a motor vehicle while her license was revoked,

canceled, or suspended. Pursuant to a negotiated plea agreement, the

Defendant was sentenced to two years as a Range I Standard Offender for her

convic tion for theft over $500. This sentence was ordered to be served

concurrently with her two nine-month sentences for theft under $500, her 90-day

sentence for reckless driving, and her 90-day sentence for driving while her

license was revoked, suspended, or canceled. After an evidentiary hearing, the

trial court ordered the sentences to be served totally by incarceration. In her sole

issue on appeal, the Defendant argues that the trial court erred in denying her

alternative sentencing. We affirm the judgments of the trial court.

When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).
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In conducting a de novo review of a sentence, this Court must consider the

evidence adduced at trial and the sentencing hearing, the presentence report, the

principles of sentencing, the arguments of counsel relative to sentencing

alternatives, the nature of the offense, and the defendant’s potential for

rehabilitation. Tenn. Code Ann. § 40-35-210; State v. Parker, 932 S.W.2d 945,

955-56 (Tenn. Crim App. 1996).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon

review of the record, we find that the trial court considered all the proper

sentencing principles and stated its reasons and findings on the record.

Therefore, review by this court is de novo with a presumption of correctness.

Tennessee Code Annotated section 40-35-102 outlines when alternative

sentencing is appropriate. A defendant “who is an especially mitigated or

standard offender convicted of a Class C, D or E felony is presumed to be a

favorable candidate for alternative sentencing options in the absence of evidence

to the contrary.” Tenn. Code Ann. § 40-35-102(6). Our sentencing law also

provides that “convicted felons committing the most severe offenses, possessing

criminal histories evincing a clear disregard for the laws and morals of society,

and evincing failure of past efforts at rehabilitation shall be given first priority

regarding sentencing involving incarceration.” Tenn. Code Ann. § 40-35-102(5).
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Thus, a defendant sentenced to eight years or less who is not an offender for

whom incarceration is a priority is presumed eligible for alternative sentencing

unless sufficient evidence rebuts the presumption. However, the act does not

provide that all offenders who meet the criteria are entitled to such relief; rather,

it requires that sentencing issues be determined by the facts and circumstances

presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.

App. 1987). 

Additionally, the principles of sentencing reflect that the sentence should

be no greater than that deserved for the offense committed and should be the

least severe measure necessary to achieve the purposes for which the sentence

is imposed. Tenn. Code Ann. § 40-35-103(2) and (4). The court should also

consider the potential for rehabilitation or treatment of the defendant in

determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5). 

The Defendant argues that the trial judge erred when he stated: “You’ve

got to convince me that you don’t need to go to jail and stay there as long as we

can keep you there,” because this denied her the presumption of being a

favorable candidate for alternative sentencing pursuant to Tenn. Code Ann. § 40-

35-102(6). Although the judge may have acted prematurely in implying that the

Defendant did not have that presumption, after a careful review of the record it

appears that the judge was knowledgeable of the Defendant’s criminal history

prior to the sentencing hearing. 

When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations
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which militate against alternative sentencing include: the need to protect society

by restraining a defendant having a long history of criminal conduct, whether

confinement is particularly appropriate to effectively deter others likely to commit

a similar offense, the need to avoid depreciating the seriousness of the offense,

and the need to order confinem ent in cases in which less restrictive measures

have often or recently been unsuccessfully applied to the defendant. Tenn. Code

Ann. § 40-35-103(1)(A) - (C). 

In the case sub judice, the trial court found that the Defendant did not meet

the appropriate criteria to be eligible for alternative sentencing. The Defendant

has an extensive criminal record dating back to 1986. She has been previously

convicted more than ten times for shoplifting. The Defendant was on bond

awaiting trial when she committed four of the five current charges, and

furthermore, she was on probation for possession of cocaine when she

committed all of the present offenses. The Defendant has apparently failed at all

past efforts of rehabilitation. Because of these facts, the trial court reasoned that

the Defendant has a total disregard for the laws and morals of society. The court

further found that granting alternative sentencing would depreciate the

seriousness of the crime. This court has held that where a defendant’s history

indicates a clear disregard for the laws and morals of society and a failure of past

efforts to rehabilitate, the trial judge does not abuse his discretion in denying

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

The Defendant argues that she is an eligible candidate for Community

Corrections because she meets the minimum requirements outlined in

Tennessee Code Annotated section 40-36-106. The Community Corrections Act
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allows certain eligible offenders to participate in community based alternatives to

incarceration, however, a defendant must first be a suitable candidate for

alternative sentencing. Tenn. Code Ann. §§ 40-36-103 and 40-35-104(9).

Therefore, since the court found the Defendant to be ineligible for alternative

sentencing because of the factors discussed above, this precludes her from

participating in the Community Corrections program. 

Based upon the evidence presented at the sentencing hearing, the

presentence report, the principles of sentencing set forth in Tenn. Code Ann. 

§ 40-35-102, -103, -104, the arguments made by counsel, the nature of the

offense, and the Defendant’s potential for rehabilitation, we find that the trial court

did not err in denying the Defendant alternative sentencing. This issue is without

merit. 

 We affirm the judgments of the trial court.

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

DAVID G. HAYES, Judge

___________________________________

JERRY L. SMITH, Judge