1 The defendant married Bobby Mel

ton in Decembe

r 1999. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs A

ugust 21, 2001 STATE OF TENNESSEE v. EVELYN ELISSA DUCKETT Direct Appeal from the Circuit Court for Blount County No. C-12171 D. Kelly Thomas, Jr., Judge

No. E2000-02273-CCA-R3-CD October 9, 2001
The defendant was indi cted for robbery and convicted of misdemeanor theft, for which she wa s sentenced to eleven months an

d twenty-nin

e days, and

payment of r

estitution, with

the defendant to serve thirty percent of the sentence. She timely ap pealed, argui

ng that the entir

e sentence shoul

d have been proba

ted. Based upon o

ur review, we a

ffirm the judgme

nt of the trial cour

t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., d elivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OHN E VERETT W ILLI

AMS , J., joined. Raymond Mack Garner, District Public Defender, and Stacey D. Nordquist, Assistant District Public Defender, for

the appellant, Ev

elyn Ducke

tt.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory

, Assistant Attorne

y General ; Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defe ndant , Evelyn Elissa Duckett Melton, 1 was convicted of misdemeanor theft and sentenced to eleven months and twenty-nine days, with thirty percent of this sentence to be served in confinement and the remainder probated. The defendant appealed, raising a s the sole issue, whether the entire sentence should have been probated.
The victim, Charles H. Ritchey, who was seventy-five y ears old at

the time of the inci

dent, testified that the defendant came to his house at about 9:15 p.m. on July 15, 1999. He was the owner of a used car lot whi

ch was located ne

xt to his house. He said that the defendant had come to his car lotto look at cars on th

ree other occa

sions. He carrie

d a pistol as he wen

t to th e door, but put it-2-

down when he recognized the defendant. She a

sked to use the res

troom at his home as w

ell as his telephone. He declined to allow her to come into the house to use his restroom but bro ught his telephone to the garage; she spoke on it for about three minutes. The defendant then asked the victim if she could have a soft drink, and he turned to go get one for her. As he was going up the stairs, the defe

ndant hit him in

the back and grabbed his right ankle, causing him

to fall face-fi

rst on the floor. Th

e defendant go

t on top of him and took

his wallet from his back pocket. As she ran to her car and left, the victim telephoned 911 for assistance.
Th e victim testified that his wallet contained “a twenty dollar bill and two five s and som e ones” and f

our credit cards. Even though he reported the credit cards as stolen, he still receive d statementsfor unauthorized charges at Wal-Mart for a television, Sears for a vacuum cleaner and attachments, and

Lowe’s Hard

ware for some a

ir tools and attach

ments.
The defendant testified that she had been to the victim’s home on other occasions and that, on one of these visits, he had offered to pay

her for sex, and to pay her $50 if she would return for the same purpose. She said that she had returned to collect this money on Jul y 15, 1 999, but the victim told her that he did

not have it. Accor

ding to the defe

ndant, the victim

fell as he was going up the stairs, and she

never touched hi

m. The defendant

a dmitted taking the victim’s wallet but deniedusing any of his credit cards. She said that she took

$35 to $40 out of the victim’s wallet and the n th rew t he w all et d own as s he w as l eavi ng th e vi cti m’s dri vew ay. Officer Doug Moore, of the

Blount C ounty Sheriff’s Department, testified that he had interviewed

the defendant two days after the incident. The videotape of the inter view was played for the jury. Alt

hough the sound qu

ality was poor, it appeared the

defendant gave Officer Moore the same version of e

vents that she testi

fied to at trial. Following the presentation of this proof, the defendant was convicted of the lesser-included offense of misdemeanor theft and sentenced to eleven months and twenty-nine day s, with the defendant to serve thirty percent of the sentence and the remainder on probation. Additionally, the defendant was ordered to pay $330. 5 7 in restitution to the victim and submit to drug and alcohol screens, as ordered by her probation officer

. At the sentencing hearing, the victim reiterated his trial testimony, denying the de fendant’s claims at trial that he had

sought her

for sexual favors and that he owed her money for that purpose.
The defendant stated that her testimony at trial had been truthful. She again admitted taking the victim’s wallet but denied using his credit cards. She said that she had had an alcohol problem in the past and that she was disabled because she suffe red from major depre

ssion, osteoarthr

itis, asthma, and scoliosis.
On Nov emb er 22 , 19 99, the defe nda nt h ad en ter ed p lea s of guil ty in t he Knox County General Sessions

Court to several of

fenses. She pled g

uilty to having passed worthless checks on-3-

February 8, 1999, for $28.48; February 11, 1999, for $37.62 ; and February 21, 1999, for $51.74, receiving concurrent

sentences in each case of eleven monthsand twenty-nine days at seventy -five percent, with each senten ce suspended, an

d the defendant o

rdered to pay restitution. Add iti ona lly, she pled guilty

the same day

to criminal trespa

ss after, accor

ding to the affid

avit of complaint, propositioning a truck driver for sex, and was sentenced to thir ty day s, with the sentence probated. This offense occurred approximately two weeks after she ha d been released on

bond following her arrest for the ins tan t of fens e. Fi nal ly, she pled guilty on March 6, 2000, to criminal impersonation, committed on November 28, 19 99, and was sente

nced to six months confinement, which was suspended.
Add iti ona lly, the defendan t told the trial court that, as of the date of t he sentenci ng hearing, she had a burglary case pending in Knox County , which was set for trial in February 2001. Also, she admitted to a number of misdemeanor arrests over a period of, at le

ast, several years. However, the record on appeal, which

does not contain

a presentence re

port, is insufficie

nt for us to make a p

recise determination as t

o her record of

convictions.
At the sentencing

hearing, the de

fendant’s mother

-in-law, Ine

z Melton, testified th

at th er e was “a big

difference in [the defendant’s] life.” She stated that the defendant staye d at home more andwas “not out

running the road and getting into trouble.” She further said that the defendant had never been violent with her or her husband. At the sentencing

hearing, the tr

ial court sentenc

ed the defendan

t as follows:
Based upon the verdict of the Jury, it’s the judgment o f the C o urt that you are guilty of theft. The sentence imposed is 11 months, 29 days. The place of con finement is

the Blount County

Jail. Your release eligibility is 30 percent, which means you will serve 30 percent of the sentence and then be released to se rve the balance of that sentence on probation.
A condition of your probation will be paying re stitution of $330.57 and the co

urt costs.
You can report to serve your jail sentence on Friday

. Tha t will give you

an opportunity

to decide whethe

r you want to

appeal the verdict or the sentence or not. And if you wish to appeal, then we can address the question of bond.
In setting the sentence as I did, I consider ed your very long crimin al h istory. You have very many , many misdemeanor convictions and you

have what led to three misdemeanor convictions after commit tin g this offense. I

think I’m givi

ng you a lot

of credit for what your mother-in-law testified to, by not order ing you to serve-4- the whole 11 m onths and 29 days. I’m giving y ou the benefit of serving 3 0 percent of that sentence in jail a

nd the rest of it

o n probation.
The Jur y did not fin d you guil ty of rob bery. But the Jury did find you guilty of th

eft beyond

a reasonable

doubt. And there’s – the circumstances that led to your being there to take the wallet from Mr. Ritchie [sic] were very

suspect. And eve

n if you took everything that you say to be true, you sti

ll went down there

to get money

from him. And based on your testimony and about what y ou say that he

sa id when you went

there, he wasn’t willing to give you money until you did some more thing

s, even by y

our story. A

nd you didn’t

, you just took the money from him. And by Mr. Ritchie’s [sic] story , went down there to tak e his money even though the Jury wasn’t convinced that you used violence to do it, you still went down there and took the man ’s m one y.
Your chances of rehabilitation, I think appear to be much improved from what it was before. I’m going to require that during the tim e th at yo u’r e on pro bat ion tha t yo u follo w the probation officer’s instructions about any dru g or alcohol treatment that’s needed. You are at a point where you c an serve the bulk

of this se ntence on probation and c ontinue to improve y

our life. But just because you’re doin

g better doesn’ t mean you do n’t have to

p ay up for what yo

u’ve already

done. And that’s ba

sically wha

t this is.
ANALYSIS
Standard of Review
When an accused challenges the length and manner of

service of a sentence, it is the duty of this court to conduct a de novo review on the re cord wit h a presumpti on that “the determinations made by the court from which the ap peal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumpti on is “conditioned upon the affirmative showing in the record that the trial court considered

the sentencing

principles and al

l relevant facts

and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to t he l egal conclusions reached by the trial court in s

entencing the a

ccused or to

the determinations made by the trial court which are predicated

upon uncontroverted facts. State v. Butler , 900 S.W.2d 305, 311 (Ten n. C rim. App. 1994); State v. Smith , 891 S.W.2d 922, 929 (T enn. Crim. App. 1994

); State v. Bonestel , 871 S.W.2d 163, 166 (Tenn. Crim. Ap p. 1993). Howeve

r, this court is

required to give

great weight

to the trial court’s determination of controverted facts as the trial court ’s det ermination of thes e facts is predicated upon the wi tnesses’ d emeanor and a ppearance wh en testifying.-5-

In conducting a de novo review of a sentence, this court must consider (a) a ny evidenc e received at the trial and/or sent encing hearin g, (b) the presentence report, (c) the principles of sentencing, (d) the argume nts of counsel rel

ative to sentenci

ng alternative

s, (e) the natu

r e and characteristics of

the offense , (f) any mitigat ing or enhanc ement facto rs, (g) any statements made by the accused in

his own behalf, and

(h) the accused's potential or lack of potential for rehabilitation or treatment. Tenn.

Code Ann. §§ 40-35- 103 and -210; Statev. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987).
The party challenging the sentence imposed by the trial court has the burden of establishing that the sentenc e is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.; Ashby , 823 S.W.2d at 169 . In thiscase, the defendant has the burden of illustrating the sentence imposed by the

trial court is err

oneous. Probation
The sole issue on appeal is whether the trial court erred in not granting full probation. The defendant contends that her entire sentence should have been probated. Tennessee Code Annotated Section 40-35-303(a) states that a defendant shall be eligible for probation, subject to certain exceptions, if the sentence imposed upon the defendant is of eight yearsor less. Even if eligible, however, the defendant is not automatically entitled to probation as a matter of law. See Tenn. Code Ann. § 40-35-303(b). The burden is upon the defendant to show that he is a suitable candidate for probation. St ate v. Goode , 95 6 S.W.2d 521, 527 (Ten n. Crim. App. 1997); State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b). In order to meet this burden, the defendant “must d

emonstrate that pr

obation will ‘s ubserve the ends of justice and the best interest of both the public and the defendant.’” State v. Bingham , 910 S.W.2d 448, 456 (Tenn. C rim. App. 1 995) (quot ing State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). The statutory presumption favoring an alternative sentence is limited to Class C, D, and E felonies. See Tenn. Code. Ann. § 40-35-102(6). There is no bright linerule for determining when a defendant should be granted probation. Bi ngha m , 910 S.W.2d at 456. Eve ry sentenc

ing decision nec

essarily re

quires a case-b

y-case analysis. Id. Factors to be co nsi dered incl ude the circumstances surrounding the offense, the defendant’s criminal record, the defendant’s social histor y and prese

nt condition, the need for deter renc e, and the best interest of the defendant and the public. Goode , 956 S.W.2d at 527. Another appropriate fa

ctor for a trial c

ourt to consider in

determining whe

ther to grant pr

obation is a defendant’s cr

edibil ity or lack thereof, as this reflects on the defendant’s potential for rehabilitation. Id. Also relevant is whether a sentence of probation wou ld unduly depreciate the seriousness of the offense. See State v. Davis , 940 S.W.2d 558, 559 (Tenn. 1997).
Misdemeanor

sentencing guide li nes are codified at Tennessee Code Annotated Section 40-35-302(d) wh

ich provides, in pe

rtinent part:-6- In imposing a misdemeanor sentence, the court shall fix a

percentage of the sentence which

the defendant shall serve. . . . In determining the percentage of the sentence to be served in actual confine

ment, the court shal l consider the purposes of this chapter, the principles of senten cing, and the enhancement and mitigating factors set for t h here in, and sha ll n ot i mpo se s uch perc ent ages arbi tra ril y. Trial courts have more

flexibility in mi

sdemeanor se

ntencing than infelony sentencing. State v. Johnson , 15 S.W.3d 515, 518 (Tenn . Crim. App. 1999), perm. to appeal denied (Tenn. 2000). Further, in sentencing a misdemeanant, the court need not make explicit findings of enhancement andmitigating factors as in a felony case. State v. Russell , 10 S.W.3d 270, 278 (Tenn. Crim. App.), perm. to appeal denied

(Tenn. 1999).
Our review of misdemeanor sentencing, unlike that for a felony, is to determine whether the trial court considered the purpose s of the Criminal Sen tencing Reform

Act, the sentenc

ing principles, andthe enhancement and mitigating factors, and did not impose an arbitrary sentence. Here, the trial judge had the benefit

of presiding over the trial and observing the defendant testify at both the trial and the sentencing hearing, as well as hearing from the other witnesse s. Since the record on appeal does not include a presentence report, we cannot determine the number of previous arrests for the defendant, or over what period of time they e xtended. She was askedif she had been a

rrested ninetee

n times in Blo

u nt County since 1994, but her answer was unclear, although she did appear to admit to a DUI arrest and others for publ ic intoxic ation. Apparently, the DUI arrest re sulted in her being convicted and placed on probation. Add iti ona lly, she hadat least five misdemeanor convictions since being released on bond for the instant offense, three of which were committed after the incident which resulted in that charge.
In determining that the defendant should serve thirty percent of her sentence, the trial court observed that the defendant’s “chances of rehabilitation . . . appear to be much improved from what it was before.” Based upon this statement, and the testimony of I nez Melton, the defendant’s mother-in-law, the defendant argues that she “has good potential for rehabilitation.” The defendant hada lengthy

arrest history, her

most recent arrest being on November 28, 1999. We conclude, as didthe trial court, that the defendant, not having been arrested duri ng the ten mont hs prior to the sentencing hearing, appeared to have “much improved” rehabilitative chances. However, the trial court’s rating of “improve d” cann ot be equated to “good.” Additionally, the lack of arrests for crimes of violence cannot erase the defendant’s substantial record over a long per iod. Considering all of these factors, we cannot conclude that the trial court, after observing the defendant and hearing testimonyfrom all of the witn esses, abused its d

iscretion in conc

luding that th

e def endant’s rehabilitative prospects would be enhanced by serving thirty perc

ent of her senten

ce in confinemen

t. Accordingly, we affirm the judgment of the trial c ourt.
CONCLUSION-7-

It is clear from thetrial court’s comments t hat consideratio

n was given to the

appropriate principles,and that the sentencewas not arbitrary. Accordingly , we affirm the judgment of the trial court.

___________________________________ ALAN E. GLENN, JUDGE