# FILED

Au gust 22, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE JULY 1997 SE SSION

STATE OF TENNESSEE, ) NO. 01C01-9607- CR-00290 ) Appellee ) DAVID SON C OUNTY ) V. ) HON. THOMAS H. SHRIVER , JUDGE ) CHARLES E. M ILLER ) (Sente ncing) ) Appellant ) )
FOR THE APPELLANT FOR THE APPELLEE Thomas H. Mill er John Knox Walkup P.O. Box 681662 Attorney Gen eral and Repor ter Franklin, Tennessee 37068-1662 Clinton J. M organ Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0493 Victor S. J ohnson, III Distric t Attorney General John C. Zimmer man Assistant D istrict A

ttorney Gener

al Pamela Anderson Assistant D istrict A

ttorney Gener

al W ashington Square 222 Second Avenue N., Suite 500 Nashvil le, Tennessee 37201- 1649

OPINION FILE D:______2

AFFIRMED AS MODIFIED
W illiam M. B arker, Ju dge Opinion The appellant, Char les E. Mil ler, appeals as of right t he sentences he received following his nolo contenderepleas to one count of forgery and one count of the ft. He argues on appeal that the trial court erre d in orderin g his incarceration i n the Depa rtme nt of Corre ctio n, ra ther than orde ring a ltern ative sent enci ng. W e have reviewed the record on appeal, and findingno revers ible error , we affirm the tr ial court’s jud gment as modified her ein. The appellant was indicted for one count of forgery and one count of theft, both Class D feloni es. See Tenn. Code Ann. §§ 39- 14-105(3) and 39- 14-114(c) ( 1991). Pursuant to a pl ea bargain ag reement wit h the State, the appel lant entered pl eas of nolo contendereto both counts i n exchange for concurrent eight-year sentences, the maximum sentence for a Range II multiple offender. The pl ea bargain ag reement provided that the trial court would determine the manner of service of those sentences. Accordingly , on March 7, 1996, the trial court conducte d a sentencing hearing, foll owing w hich it order ed that the appell ant serve t hose sentences i n the Tennessee Department of Correction. In orderingthe appellant’s incarcerat ion, the tria l court stat ed: W e have two offenses that see m to be part of a patt ern, a larger pattern involv ing a number of othe r persons. It’s not cle ar to me how the cases are inte rrelated or -- or who is th e most cu lpable . In the who le thing, what i t doe s app ear is that [the appe llan t] is n ow thi rty-se ven or thirt yeight years old and can’t demonstrate he ’s ever held a job. W hile his main criminal activit

y occurred mainly fifteen or so years

ago, nevertheles s, he has a record that throw s him necessar ily in range two. I guess w here I fall w ith this is , the General i s right a bout it, that the two eig ht year sen tences, rang e two, conc urrently , is a proper sent ence . An d so given th is r ecor d, I don’ t --I re all y c an’t much jus tify doing anyt hing else. So that wi ll be the senten ce. When an appellant complains of his or her sentence, we must conduct a de
novo review with a pr

esumption of correc

tness. Tenn. Code Ann. § 40-35-401( d)1 Tennessee Code Annotat ed, sect ion 40 -35-210( g) prov ides t hat “ [a] sentence must be base d on evi dence i n the r ecord of the t ri al, the sent encing heari ng, t he present ence report, and the record of prior fe lony co nviction s filed b y the D istrict Atto rney G ene ral as requ ired b y §40- 35-2 02(a ).” 3 (1991). The burde n of showingthat the sentence is improper is upon the appeal ing party. Id. at Sentencing Commission Comm ents. This presumption , however, is conditioned upon an affirmative show ing in the r ecord that the tr ial court considered the sentencing principles and all rel evant facts and c ircumstances. State v. Ash by , 823 S.W .2d 166, 169 (Tenn . 1991). During th e sentencing hearing, the assistant di strict atto rney, w ithout any evid entiar

y sup port, argue d that t he appel lant was a par tici pant in a forg ery scheme involving several others. It is apparent that the trial court considered the Sta te’s argument and gave it great weight in its sentencing decision. Therefo re, on appeal, the presumption th at the sentence i s correct must fail, and we will conduct a de novo review of the record. See Tenn. Code Ann. § 40 -35-210(g) (Supp. 1996). 1 Our de novo

review of the record on appeal convinces us that the trial court correctly denied the appell ant alternativ e sentencing in lieu of incar ceration. The appellant, sentenced as a Range II multiple offender, is not statutor ily pre sumed to be a favorable can didate for alter native sente ncing. See Tenn. Code Ann. § 40- 35- 102(6) (Supp. 1996). We f ind that confinement i s necessary to protect soc iety from the ap pellant because he has a l ong history of criminal conduct. See Tenn. Code Ann. § 40- 35- 103(1)(A) ( 1990). The appellan t’s extens ive cri minal record includes three armed robbery convictions, one fraudulent use of a credit card conviction, one burglary convicti on, one escape from the Department of Corr ection conv iction, one co nviction for possession of dr ug paraphernal ia, two D UI convi ctions, and sev eral driv ing violatio ns. We also find that measures le ss restri ctive than confinement have been unsuccessfully

applied in the past to the appell ant. See Tenn. Code Ann. § 40- 35- 103(1)(C) . It appears t hat the appellant, on two ear lier occas ions, was placed upon4

probation and in each instance hi s probation was subsequentl y revoked. It further appears that the app ellant was serving a third sentence on probation for a DUI convicti on when the present offenses occurred. Fin all y, w

e not e that thejud gmen t for m of th e tr ial cour t in the a ppel lant ’s t heft case, being case number 95-C -2130 in the Da vidson Cou nty Cri minal Court, incorrectl y finds the appel lant guilt y of forgery

rather than theft, and further, the judgment form indi cates the appell ant’s conv iction for a C lass C felony rather than a Class D felony

for which appellant was indicted. Accordingl y, we direct that t he trial
cour t ent er a cor rec ted j udg ment

ind icatingthat

the a ppel lant

was found gui lty

of th eft in an amount greater than one thous and dollars ( $1,000) but less than ten thousand dollars ($ 10,000) and that the offense is a Class D felony. Based upon the foreg oing, the ju dgment of the tria l court is affirmed as modified.

__________________________ WILLIAM M. BARKER, JUDG E
CONCUR:

__________________________ JOHN H. PE AY, JUDG E

__________________________ JERRY L. SMITH, JUDG E