### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 9, 2003 STATE OF TENNESSEE v. BOBB Y HOLT, JR. Appeal from the Circuit Court for Hardin County No. 8143 C. Creed McGinley, Judge

No. W2002-02443-CCA-R3-CD - Filed August 15, 2003

The defendant, Bob by Holt, J r., pled guilty to one c ount of aggravated burg lary, four c ounts of bu rg la ry, three counts of theft over $100 0, and one count of theft under $500. The trial court imposed sentences of five years for aggr avated burglary , three ye ars on each count of burglary , three yearson each count of theft over $1000, and eleven months and twe nty-nine day s for theft under $500. The sentences were ordere d to be served concurrently , for an effective, Range I

sentence of five ye ars. I

n this appe al, the de

fendant asserts t

hat ( 1) the trial court erred in the application of enhancement

and mitigating factors and (2) that the tria l cou rt er re d b y d enying an alternative sentence. The judgments of the trial court ar e affirmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the op inion of the court, in which J OHN E VERE TT W ILLIAMS and R OBER T W. W EDEMEYER , JJ., joined. Richard W. DeBerry , Camden, Tennessee, for the appellant, Bobby Holt, Jr.
Paul G. Summers , Attorne y General & Repor ter; Thom a s E. Wi lliams, III , Assistant Attorney Genera l; and John W. Overton, Assistant Di strict Attorney Gene ral, for the appellee, State of Tennessee.
OPINION In June 2002, the defendant entere d open guilty plea s to one count of ag gr av at ed bu rg la ry, four counts of burglary , three counts of theft over $1000, and one count of theft unde r $5 00. The ch arges were related to the breaking and entering of Williams Lumber Company , the Hardi n Farmer’s Co-op, and the residence of Melvin Saccomanno.
In arriving at an effective se ntence of five y ears, the trial court applied enhancement factor (20), that the defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if c ommitted by an adult. See Tenn. Code Ann. § 40-35-114(20) (1997).-2-

The trial cou

rt applie d conside

rable we ight to th is factor because of th e exte nsiveness of the defendant’s juvenile criminal record. I n mitigation, the trial court concluded that the defendant was a youthful offende

r, see id. § 40-35-1 13(13), but deter mined tha

t this fac tor was e

ntitled to little weight. Probation was denied.
In this appeal, the defendant asserts that the trial court e rred by the

application of th e enhancement and mitig ating f actors a nd by deny ing an a lternati ve sente

nce. When

there is a chall enge to the len gth, ra nge, or manner o f servic e of a se ntence, it is the dut

y of this cour t to conduct a de novo review with a presumption that the d eterminations made by the trial court are correct. Tenn. Code Ann. § 40-35-4 01(d). T his presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sente ncing principles and all relevant facts and circumstan ces." State v. Ashby , 823 S.W.2d 166, 1 69 ( Tenn. 199 1); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court ap plies inap propria te facto rs or othe rwise fa ils to follow the 1989 Sentencing Act, the presumpt ion of cor rectne ss falls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is o n the defend ant to show the impropriety of the se ntence. Tenn. Code Ann. § 40-35-401, Sentencing Commiss ion Comment s. Our re vi ew re qu ir es an an al ysi s o f ( 1) th e e vi de nc e, if an y, received at the trial and sentencing hearin g; (2) the pre sentence report; (3) the principles of sentenc ing and the arguments of counsel relative to sentencing alternatives; (4) the nature a nd characteristics of

the offense; (5) any

mitigating or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defenda nt' s pot ential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calculating the s entenc e for a Class B, C, D, or E felony conviction, the presumptive sentence is the minimum in the range if there are no enhancement or

mitigating factors. Tenn. Code Ann. § 40-35-210(c). If

there are enhancement but no mitigating factors, the trial court may set the sentence above the minimum, but still within the ra nge. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors require s a n assignment of relative weight for the enhanc ement fa

ctors as a means of increasing the sentence . Tenn. Code Ann. § 40-35- 210(e). The sentence must thenbe reduced within the range by any weig htassigned to the mitigating factors present. Id.
Altho ugh the defendant as serts that the trial court misapplied the enhancement and mitigating factor s, the presentence report establishes that the defenda nt does, in fact, have an

extensive juvenile record, including prior convictions for agg ravated assault, burglary , theft under $500, resisting arr est, and possession of drug paraphernalia. At ag e 15, he violated the conditions of his intensive probation by r

emoving a monitoring devi ce from his ankle . Under t

hese cir cums tance s, the trial court did not err by a ssigning significant weight to the sing le enhancement factor.
The defendant also asserts that the trial court erre d by deny ing an alternative sentence

. An alterna

tive sente nce is an y se ntence t hat d oes not involve total confinement. See State v.-3-

Fields , 40 S.W.3d 435 (Tenn. 2001). Asa standa rd offe nder con victed of Class C and

D felonie s, the defendant is presumed to be a favorable c andidate for alternative sentencing

. See Tenn. Code Ann. § 40-35-102(6). In addition, beca use the sentence imposed is eight y ears or less, the trial court was required to consider probation as a sentenc ing option. See Tenn. Code Ann. § 40-35-303(b).
The trial court’s determ inat ion of whether the defendant is entitled to an alternative s entence and whet

her the d efenda nt is a suita

ble cand idate fo r full pro bation ar e diffe rent inqu irie s withdifferent burdens of proof. Stat e v. Boggs , 932 S.W.2d 4 67, 477 (T enn. Crim. App. 1996). When, as here, t

he de fendant is entitled to the statutory pre sumption favoring alternative sente ncing, the state must overcome the presumption by the showing of “eviden ce to the contrary .” Ashby , 823 S.W.2d a t 169; State v. Bingham , 910 S.W.2d 448, 455 (T enn. Crim. App. 1995), overruled in part on other grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000); see Tenn. Code Ann. §§ 40-35-102(6), -103. Conversely , it is the defendant who has the burden of demonstrating his suitability for total probation. Bingham , 910 S .W.2d at 455 ; see Tenn. Code Ann. § 40-35-303(b).
As indicated, this defendant is entitled to a presumption in favor

of an alternative sentence “absent evidence to the contrary .” See Tenn. Code Ann. § 40-35-102(6). What constitutes such evidence can be f

ound in Te

nnessee Code Anno tated se ctio n 40-35-10 3, which p rovides, in pertine nt part, a s follows:
Senten ces involving confinement should be based on the following considerations : (A) Confinement is necessary to protect society by restraining

a defendant who has a long hist ory of crimin al conduct; (B) Confineme

nt is necessa

ry to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide a

n effec tive dete

rrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have freque ntly or rece ntly been applied unsuccessfully to the defendant[.] Tenn. Code Ann. § 40-35-103(1).
The trial court

denied analternative sentence for two reasons: the de fendant’s extensive juvenile criminal history and the la ck of success in utilizing measures less restrictive than confine ment. The remova l of a n ankle monitoring device is a serious probation violation. Further, the defendant admitted escaping from the M cNairy County Jail while th

e charg es in this case were pending. Under these c ircumstances, it is ou r view tha t th e trial court did not err by ordering a fully

incarcerative sentence. Accordingly , the judgment of the trial court is affirmed.-4- _______ _____ ______________________ _ GARY R. WADE, PRESIDING JUDGE