# FILED
May 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9705-CR-00198

Appellee, * SHELBY COU NTY VS. * Honorable Carol yn Wade B lackett, Judge RICKEY HAILEY, * (Vandalism; Attempted Burglar y; Theft) Appellant. *

For Appellant: For Appellee: William D. Massey and John Knox Walkup R. Price Harris Attorney General & Repor ter 3074 East Street Memphis, TN 38128 Janis L. Turner Assistant Attorney Gener al Criminal Justice Div

ision Cordell Hull Bldg. , Second Floor 425 Fifth Avenue, North Nashville, TN 37243-0493 James Challen Assistant Attorney Gener al Criminal Justice Comple x, Suite 301 201 Poplar Street Memphis, TN 38103

OPINION FILED: _____________________

AFFIRMED AS MODIFIED
GARY R. WADE, JUDGE2 OPINION The defendant, Rickey Hailey , pled guilty to v andalism under $500, attempted burglary of a v ehicle, and theft under $500. The tri al court imposed concurrent sentences of elev en months, twenty-nine day s for each offense, to be served in the work

house. The judgment forms do not indic ate the percentage of service required before the defendant is eligible for work release or other rehabilitative prog rams. See Tenn. Code Ann. § 40-35-302(d).

In this appeal of right, the de fendant contends that the trial cour t erred by denying probation.The judgment of the trial court is affirmed, but modified to reflect eligibility

for release after ninety day s.
On July 25, 1995, the former g irlfriend of the defendant was "beaten like a dog" by Phill ip Johnson. The defendant retaliated by attempting to enter and then by vandalizing a truck at Johnson's residence with a baseball bat. He stole rifles, shotguns, cross bows, and car stereo eq uipment from the truck, whic h the defendant later learned belonged to Phillip Johnson's father, Lar ry Johnson.
The next day, he turned himself in to authorities and coope rated in locating the property

of the victim. The defendant, who was nineteen when he committed the crimes, acknow ledged his actions w

ere "stupid." He testified that he would be willing

to make restitution to the v ictim, although he admitted he h ad not yet done so. After the incide nt, the defendant completed high school . At the time of the sentencing hearing, h e was employed and train ing to be a journeyman plu mber.

The defendant testified tha t his parents were in the process of divorce at the time of the crimes. He atte mpted to qualify for anger manag ement classes3 but learned his insurance c overage had expired.
The defendant acknowledged that while he was on bail for these crimes , he stol e "a few f ishing lures"from Wal-Ma rt and w as later convic ted of the

ft under five-hundred dollars

.

The trial court denied probati on because the defendant had taken the law into his own han ds, had not made restitution, and ha d a prior criminal his

tory. The trial judge ruled that in ninety days, the defendant could petition for release w ith the remainder of the sentence to be served on proba tion. Defense counsel's request for a ruling "one way or another" on the j ail term to be served before the grant of probation was deni ed.

When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's4 potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history, and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978). With certain statutory exceptions , none of which apply here,probation must be automatically considered by the trial court i

f the sentence imposed is eight y ears or less. Tenn. Code Ann. § 40-35-303(a), (b).

Alternative sentencing

issues must be determined by the facts and circumstances of the indiv idual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be bottomed upo n its own facts." State v. Taylor , 744 S.W.2d 919, 922 (T enn. Crim. App. 1987).

In misdemeanor sentencing, a se parate sentencing hearing is not mandatory but the court is required to provide the defendant with a reasonable opportunity to be heard as t o the length and manner of the sentence. Tenn. Code Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance with the principles, purposes, and goals of the Cr iminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104, -1 17, and -302; State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an authorized determinant sentenc e with a percentage of that s entence designated for eligibility for r

ehabilitative progr

ams. Generally, a percentage of not greater than 75% of the sentence should be fixed for a m isdemeanor offender; however, a DUI offender may be required to ser ve the full 100% of his sentence. Palmer , 9025 S.W.2d at 393-94. In det ermining the percentage of the sentence, the court mu st consider enhancement and mitigat ing factors as well as the legislative purposes and principles related to se ntencing. Id.

Upon service of that percent age, the administrativ

e agency governi ng the rehabilitative programs determines which among the lawful programs available is appropriate. The trial cour t retains the authority to place the defendant on probation either immediately or after a term of periodic or continuou s confinement. Tenn. Code Ann. § 40-35-302(e). The l egislature has encourag ed courts to consider public or private ag encies for probation superv ision prior to direct ing supervision by the Department of Correction. Tenn.Code Ann. § 40-35-302(f). The go verning statute is designed to provide the trial court with continuing jurisdiction in misdemeanor cases and a wide latitude of flexibility . The misdemeanant, unlike the felon, is not entitled to the pre sumption of a minimum sentence. State v. Creasy , 885 S.W.2d 829 (Te nn. Crim. App. 1994).

In our view, the tr

ial court properly required a period of incar ceration. That the defendant committed a theft while on bail for these offenses suggests measures less restrict ive than confinement have unsuc cessfully been applied to the defendant. See Tenn. Code Ann. § 40-35-103(1)(C). Under these circumstances, we cannot conclude the tri al court erred by orde ring a period of confinement.

The Act requires courts to "fix a percentage of the sentenc e which the defendant shall serve" before being eligible for probation. Tenn. Code Ann. § 40- 35-302(d). Only DUI sentences may be classified at one-hundred percent. Other offenders may be required to ser ve up to seventy-fiv

e percent before becoming eligible for release pr

ograms. See Palmer , 902 S.W.2d at 393-94; Tenn. Code Ann.6 § 40-35-302(d). Here, the trial court failed to indi cate on the judgment form the percentage of service. Generally, "[i]f no percent age is expressed in the judgment, the percentage shall be cons idered zero percent (0% )." Tenn. Code Ann. § 40-35- 302(d). In this case, however, the trial court clearly did not intend service of zero percent.
The defendant's social history and present condition wei gh in favor of a shorter term of incarcerat ion. After commission of these offenses, the defendant completed high school and w as taking positive s

teps toward qualifyi ng as a master plumber. There was, how ever, significant damag e to the victim's ve hicle. The defendant committed a theft while aw aiting his trial on these charges. A sentence of eleven months and twenty-nine days is appropriate. The defendan t will be eligible for release upon service of ninety days.

The judgment of the trial court i s affirmed as so modified.

__________________________________ Gary R. Wad e, Judge CONCUR:
( NOT PARTICIPATING) Joe B. Jones, Ju dge

_______________________________ Jerry L. Smith, Jud ge