# FILED
March 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9704-CC-00153 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. DONALD P. HARRIS, WILLIAM LEE TAYLOR, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
JOHN HENDERSON JOHN KNOX WALKUP Public Defender Attorney General & Repor ter C. DIANE CROSIER RUTH A. TH OMPSON Asst. Public Defender Counsel for the State 450 Jame s Roberts on Pkwy. EUGENE J. HONEA Nashville, TN 37243-0493 Asst. Public Defender 407-C Main St. JOSEPH D. BAU GH P. O. Box 68 District Attorney General Franklin, TN 37065 JEFF BURKS Asst. District Attor

ney General P. O. Box 937 Franklin, TN 37065

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 The defendant was ultimately acquitted of the theft of proper ty charge. 2 O P I N I O N
In September 1996, the defendant pled guil ty to possession of marijuan a forresale and agreed to be sente nced as a Range II multiple offen der. A se ntencing hearing was held to determine the length and m anner of his se ntence. Afte r the hearing, the trial judge sentenced the defendant to three years in the Tennessee Department of Correction. In this appeal as of right,the defendant argues that the tri al judge erred when he refused to suspend the sentence and place the defendant on probation. Afte r a review of the record and applicable la w, we find no error and affirm the judgment of the court bel ow.

At hi s s entencing hearing, the defendant testified that he had been convicted of several felonies and that he had been previously placed on probation. He further testifi ed that he had violated his pr obation when he failed to meet the requirements

of the treatment facility w here he was

receiving counseling for substance abuse. He told the court that he had been treated for substance abuse and depression at three different facilities. The defe ndant also admitted that he had been arreste d while on bond i n the inst ant case and was pre sently awai ting trial in Coffe e County. 1

The defendant, who was twenty -four years old at the ti me of sentencing , is married and has two chil dren. He testified that his mother has custody of his first child because the child’s mother died shortly after childbirth. Howev

er, he said that he helps support that child and that he is the primary source of income for h is wife and second chi ld. At the time, he had been employed a t Tennessee Propellers, Inc., f o r approximately six months. The defendant als o te stified that he has been attending Motlow State Community

College in Tullahoma. He said he planned to get an associate’s3

degree and then transfer to Mi ddle Tennessee State Univers ity.

The defendant told the co urt that he had not used drugs since his arrest and that being married had chang ed him. He testified that he real ized he could not continue the course his life had taken and that he had to take responsibility for h i s actions.

After

hearing this testimony , the trial court sentenced the defendant to three years in the Tennessee Department of Correction and or dered him to pay a two tho usand dollar ($2000) fine. Thetrial judge pointed out that as a R ange II multiple offender, the defendant was not entitledto the pre sumptio n of suit ability fo r an alter native sentence. The court found two en hancing factors: that the defendant has a prev ious history of criminal convictions in additi on to those necessary to establish the appropriate range and that the defendant had a previous hist ory of unwillingn ess to comply with the condi tions of a sentence involving release in the community . T.C.A. § 40-35-114(1) & (8). As mitigati ng factors, the judge considered the fact that the de fendant’s conduct neit he r caused nor threatened serious bodil y injury and that the defendant had taken some responsibility for his conduct. T.C.A. § 40-35-113(1) & (13).

The trial judge then stated that having considered the appr opri ate sentencing consideration s, including that measures less restrictiv

e than confinement have bee n frequently or recentl y applied unsuccessfully , he had determined that t h e defendant was not suitable for probation. The judge stated that the al tho ugh the defendant had been previously plac ed on probation and in treatment, he still “saw fit to go out and make his livi ng selling drugs in the community.”

The defendant now appeals the trial court’s determination and ur ges thi s4

court to suspend his three year sentence and place hi m on probation. When a defendant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C.A. § 4 0-35-40 1(d). The burden of showing that the sentence is improper is upon the appealing party. T.C. A. § 40-3 5-401(d) Sentencing Commis sion Comments. This presumption, however, "is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principl es and all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991).

Tennessee Code Annota ted § 40-35-10 3 sets out sente ncing consideration s which are guidelines for determining whether or not a defendant should beincarcerated. These include the need "to protect soc iet y by r estraining a defendant who has a long historyof criminal c onduct," the need "to avoid depreciating the seriousness of the offense," the determination that "confin ement is particul arly suite d to provid e an eff ective deterrence to oth e rs likely to commit s imilar offenses," or the determinati on that "measures less re

strict ive tha n confi ne ment have frequently or r ecently been applied unsuccessfully to the defendant." T.C.A. § 40-35-103(1).

In determining the specific sentence and the possib l e combination of sentencing alternatives, the court shall consider th e following: (1) any evidence from the trial and sentencing hearing, (2) the presentence report,(3) the principles of sentencing and the argumentsconcerning sentencing alternatives, (4) the nature and characteristics of the offense, (5) information offered by the State or the defendant concer ning enhancing and mitigatingfactors as found in T.C.A. §§ 40-35- 113 and -114, and (6) the defendant's
s tat ements in his or her own behal f concerning sentencing. T.C.A. § 40-35-210(b). In addition, the legislature established certain sentencing princi ples wh ich include the following: (5) In recognition that state prison capacities and the funds to

build and main tain t hem are limited, convicte d felons5 committing the most sev e re offenses, possessing crimi nal historiesevincing a clear d isregard for the laws and morals of society, and evincing failure o f past efforts at rehabilitation shall be given first priority regarding sentenci ng involving incarceration; and (6) A defendant who does not fall w ithin the parameters of subdivision (5) and is an especi ally mi tigated or standard offenderconvicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the abse nce of evi dence to the cont rary. T.C.A. § 40-35-102.

After reviewing the s

tatutes set

out above, it is obvi ous that the intent of the legislature is to encourage alternativ es to incarceration in cases where defendants are sentenced as standard or mitigated offenders convi cted of C, D, or E felonies. However, it is also clear that there is an intent to incarcera te those defendants whose criminal historiesindicate a clear disregard for the laws and morals of soci ety and a failure of past efforts to rehabilitate.

The defendant complains that the court should not have denied his request forprobation. In determining whether t he defendant should be granted probati on, the court must consider the defendant’s criminal record,social history, pr esent physical and mental condition, the circumstance s of the offenses, the deterrent effect upon the cr iminal activity of the accused as well as others, and thedefendant’s potential for rehabili tation
or treatment. State v. Bones tel , 871 S.W .2d 163, 169 (Tenn. Crim. App. 1993). In this case, the defendant had a significant cr iminal history. Dur

ing the period ofDecember 6, 1990, to Janua ry 31,199 1, the de fendan t was arrest ed six time s. He wa s ultimately convicted of two counts of bur glary, two counts of aggravated burg lary, and two counts of forgery up

to one thousand dollars ($1000). According to the presentence report, the defe ndant was placed on probation and was ordered to enter a treatment facilit y as a condition of his probation. Hi s probation was revoked however,on September 9, 1991,6

when the defendant failed to comply with the facility’s requirements. The defendant then began serving hi s o riginal sentence of three y ears. He was releas

ed on January 30, 1992, and placed on parole. His sentences expired on Mar ch 24, 1994. He was arrested forthe instant offense on April 9, 1996. This type of history clear

ly supports the trial court’s applicati on of the enhancement factors as well as the sentencing consider ation that measure s less rest rictive than confinement have been frequently or recently applied unsuccessfully to this defendant

.

T he defend ant argues that the trial judge incorrectly concluded that the defendant made his living sel ling drugs and that the judge did not take into consideration the defendant’s potential for rehabili tation. We agree thatthe record does not support the trial judge’s assertion that the defendant makes a living selling illegal drugs. The record ref lected th at this is the defendant’s first drug-related offe nse and that he is otherwise employed. However, it is clear that the tr ial judge did not sentence the defendant ba sed
o n this one statement. The trial judge ha d ample support for his decisi on to deny probation. As for

the defendant’s ability to be rehabilitated, we commend his efforts to go to school, maintain employment, a nd support his family. However, we are not convinced and nor was the trial c

ourt thatthe defendant is serious about rehabilitation. Once before he was given the opportunity for rehabilitation and he proved unsucce ssful. Eve n after having been incarcerated, he continued his substance abuse and his criminal behavior. Because of his prior criminal record and his previous inability to cooperate with probation requirements, we find that the trial court did not er r in denying the defendant’s request for probation. The judgment of the court below is affirmed.

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_ JOHN H. PEAY, Judge7

CONCUR:

_______________________________ JERRY L. SMITH, Jud ge

_______________________________ THOMAS T. W OODALL, Judge