# FILED
October 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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, ) JU DGE ) Appe llant. ) (THEFT O VER $ 500.00)

FOR THE APPELLANT : FOR THE APPELLEE : ROBERT M. BRA NNON, JR. JOHN KNOX WALKUP 295 Washington, Suite 3 Attorney General& Reporter Memphis, TN 38103 DEBORAH A. TUL LIS Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 JOHN W. PIEROTTI Distri ct Attor ney General PERRY HAYES Assistant Distri ct Attor ney General 201 Poplar Street, Suite 301 Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndan t, Con nie L. Fulton, appeal s as of ri ght the determination of the Shelby Count y Crimina l Court t hat the sent ences she received for var ious convicti ons shou ld be served by incarcerat ion and not by alternat ive sentenci ng. The Defen dant en tered gu ilty pleas to three counts of t heft, one count of reckl ess drivi ng, and one count of driving a moto r vehicle while her l icense was revo ked, canceled, or sus pend ed. Pu rsuan t to a ne gotia ted plea agreement, the Defendant was sentenced to two year s as a Range I Standard Offender for her convic tio n for thef

t over $500. This sentence was or dered to be serv

ed
conc urren tly with her two nine-m onth se ntence s for theft under $500, her 90-day sentence for reckl ess drivi ng, and her 90-day sentence for dri ving whil e her license was revoked, sus pended, or cancel ed. After an evidenti ary heari ng, the trialcourt order

ed the sentences t

o be served to tally by incarc eration. In her s ole issue on app eal, the Defendant argues t hat the trial court erred in deny ing her alternative s entenc ing. W e affirm the judgm ents of the trial court.

When an accused chall enges the lengt h, range, or t he manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence wi th a presumption t hat the determinations made by t he trialcourt are correct
. Tenn. Code Ann. § 40 -35- 401(d). This presumption i s "condit ioned upon the affirmative showing in t he record that the tri al court considered thesentencing principl es and all rele vant facts and circu mstan ces." State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991 ).-3- In conducting a de novo review of a sentence, t his Court must consider the evidence adduc ed at trialand the sentenci ng hearing, t he presentence report, t he p rincipl es of sentenci ng, the arguments of counsel r

elativ e to senten cin g alternatives, the natur e of the offe nse, an d the de fendan t’ s poten tial f or rehabili tation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker , 932 S.W.2d 945, 955-56 (T enn. Crim A pp. 1996).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having giv

en due considerat ion and properweight to t he factors and princi pals set out under the sent encing law, and that the trial cou rt's finding s of fact are adequately

supported by t he record, t hen
we may not modify t he sentence even i f we wou ld have p referred a differ ent result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Cr im. App. 1991). Upon review of the recor

d, we find that thetrialcourt consi dered all t he proper sentencing principl es and stated i ts reasons and f indings on the record. Therefore, review by t his court is de novo with a presumption of correct ness.

Tennessee Code Annotated secti on 40-35-102 outl ines when alterna tive sente n cing is appropri ate. A defendant “who is an especi ally mit igated or standard offe nder convicted of a Class C, D or E fel ony is presumed to be a favora ble candida te for alternat ive sentencing options i n the absence of evidence to the contra ry.” Tenn . Code Ann. § 40-35-102(6). Our sen tencing law also providesthat“convicted felons c omm itting the most seve re offenses, possessing criminal histories e vincing a c lear disreg ard fo r t he laws and morals of soc iety, and e vincing failure of pa st efforts at re habilitation s hall be give n first priority regarding sentencing involv ing incarceration.” Te nn. Code Ann. § 40-3 5-102(5).-4-

Thus, a defendant sentenced to eight years or

less who is not an of fender for whom incarc eration is a prio rity is pre sum ed elig ible for alternative sentencing
un l ess suffic ient evi dence rebuts t he presumption. However, the ac t does not provide that all o ffende rs who mee t the crite ria are entitled to such relief; rather, it requiresthat sent encing issues be determined by the fac ts and cir

cumstances presented in each c ase. See State v. Taylor , 744 S.W.2d 919, 922 (Ten n. C ri m. App. 19 87).
Additionally, the princip les of se ntenc ing refle ct that th e sen tence shou ld be no grea ter than tha t d eserved fo r the offense committed and shoul d be the least severe measure necessary to achieve t he purposes for which the sentence is impos ed. Ten n. Cod e Ann. § 40-35-1 03(2) an d (4). The court should also consider

the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in determ ining the s entenc e alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).

The Defen dant arg ues tha t th e trial j udge erred when he s tated: “You’ve got to convince me that you don’ t need to go to jail and staythere as long as we
can keep you there, ” becaus e this denied her the presumption of being a favora ble candidate for alter native sentencing pursuant to Tenn. Code Ann. § 40- 35-102(6). Although thejudge may have act ed prematurely in implyi ng that the Defendant did not ha ve that pre sump tion, after a carefu l review of the re cord it appears that the j udge was knowledgea b le of the Defend ant’s criminal history prior to the s entenc ing hea ring. When imposing a sentence of total con fineme nt, our Criminal Sentencing Reform Act mandates the tri al court t o base its deci sion on theconsiderat ions set forth in Tenn essee Code Annota ted secti on 40-3 5-103. These consi derations-5-

which militate against alternative s entenc ing includ e: the nee d to prote ct society by restrain ing a d efend ant ha ving a lo ng his tory of cr imina l c on duct, whether confinementis particularly appropriate to effectively deter others likely to c omm it
a similar offen se, the ne ed to avoid depreci ating the seriousness of the offens e, and the ne ed to o rder co nfinem ent in c ases in which l ess restri ctive measures have often or re cently bee n unsu ccessfu lly applied to th e defen dant. Tenn. Code Ann. § 4 0-35-10 3(1)(A) - (C ).

In the case sub judice , the trial court found that the Defendant di d not meet the appropriate criteria to be el igibleforalternat ive sentenci ng. The Defendant has an extens ive crim inal rec ord da ting ba ck to 1 986. S he ha s bee n prev iously convicted more than ten t imes for shop l ifti ng. The Defendant was on bond awaiting trialwhen she committed four of the five current charge s, and further more, she wa s on pro bation for p ossess ion of c ocaine w hen she committed all of

the present offenses. The D efend ant ha s app arently failed a t all past efforts of reh abilitation. Because of these facts, the trial court reasoned that the Defendant

has a total dis regard for the l aws and morals of soc iety. The court further found that granting alt ernative sentencing woul d depreciate the seriousness of t he cr ime. Th is cou rt has held that wh ere a defend ant’s history indicat es a clear di sregard for the laws and moral s of societ y and a failure of past efforts to reha bilitate, th e tria l judge does not abuse his discreti on in denying probation. State v. Chrisman , 885 S. W .2d 834 , 840 (T enn. C rim. App . 1994).

The Defenda nt arg ues that she is an eligible can didate for C omm unity Corrections

because she meets the m in imum require men ts outlin ed in T ennessee Code Annotat ed section 40-36-106. The Community Corrections Act-6-

allows certain eligi ble offender s to parti cipate i n community based alternatives to incarce ra tion, however, a defendant must fi rst be a sui table candi date for al ternative sentencing. Tenn. Code Ann. §§ 40-36-103 and 40-35-104(9)

. Therefore, since the court foun d the Defen dant to be ineligible for altern ative sentencing becau se of the factors di scussed above, t his precl udes her from participatin g in the C omm unity Cor rections p rogram .

Based upon the eviden ce presented at the sent encing heari ng, the presen tence re port, the pr inciples of s entenc ing set forth in Tenn . Code Ann. § 40-35-102, -103, -104, t he arguments made by counse l, the nature of t he offense, and the Defend ant’s potential for rehab ilitation, we find that the trial court did not err in denying the Defendant al ternati ve sentencin g. This is sue is wit hout merit.

We affirm the ju dgme nts of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ DAVID G. HAYES, Judge

___________________________________ JERRY L. SMITH, Judge