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

Briefs O ctober 29, 2002

STATE OF TENNESSEE v. JAM EY LUTHER CHEE K
Direct Appeal from the Criminal Court for K nox County No. 70083 Mary Beth Leibowitz, Judge

No. E2001-02977-CCA-R3-CD March 11, 2003

The Defendant pled

guilty to ag gravated assault, leaving the ma nner of service of his sentence to the discretion of the trial court. Following a sentencing hearing, the trial court denied alterna tive sente ncing. The Def

endant now appe als t he trial court’s decision, arguing ( 1) that the trial court erred by excluding two documents as exhibits at the sentencing hearing, or, in the a lternative, that he should have been granted a continuanc e on the day of the hearing; and (2) that

the trial court erred by denying his application for

probation. Finding no error, we affirm t he judg ment of the

trial cou rt.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OE G. R ILEY , J., joined.

R. Sc ott Carpenter, Assistant Public Defender, Knoxville, Tennessee, for t he appella nt, Jamey Luthe

r Cheek.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Randall E. Nichols, District Attorney Ge n eral; an d Patricia Cristil, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.
OPINION

I. PRO CEDURAL

HIST ORY

On February

23, 2000, the Defe

ndant, Jame s Luther Chee k, was ch arged

by informati on with aggravated

assault. The information alleged that the Defenda nt intentionally caused

bodily injury to Christophe

r Hill by use of a deadly

weapon. On that same date, the Defendant pled g uilty in the Criminal Court for

Knox County to aggr

avated assault, a Class C felony. See Tenn. Code Ann. § 39-13-102(d). Pursuant to a plea agreement, the Def endant received a three-y

ear sentence, with the

manner of service of the sentence left to the trial cour t’s discretion. The trial court ordered a presentenceinvesti gati on and report and scheduled a sentencing hearing for April 19, 2000.-2-

However , the D efendant failed to report to his probation officer a s required for the preparation of the presentence report, an d he al so fai led to appear in cou rt on t he dat e sched uled f or sen tenci ng. As a resu lt, the tri al court

issued a c apias fo

r his arr est.

The capias was served, and the Defe ndant was in custody whe n he appeared

before the court

on June 29, 2000. At that time, the trial court set bond and continued the case until August 3, 2000. The Defendant subseque ntly mad e bond and was released under the super vision of a probation offi cer p ending a sentencing hear ing scheduled for November 30, 2000. I n November 2000, the Defendant

pled guilty

to unrelated offenses in Campbell County and received a nine-y

ear sentence to be ser ved in Camp

bell County ’s commun

ity c orrect

ions prog ram.

On Novemb er 30, 20 00, the De fendant again f ailed to a ppear f or his sen tencing hearing in Knox County. According ly, the trial court re voked the Defendant’s bond and issued a second capias for his arre st. The Defendant was arrested pursuant to the capias on August 16, 2001. On September 6, 2001, the trial court granted the Defenda nt a continuance for an evaluation of his suitability for the Community

Alterna tives to Pri son Prog

ram (CAPP) , Knox County ’s commu ni ty corre ctions progra m, and the trial court scheduled a senten cing hearing for October 4, 2001. On October 3, 2001, the Defendant filed a motion requesting that he be considered for community corrections pursuant to Tennessee Code Annotat ed § 40-36-10 6(c) due to his histor

y of alcoholi sm. Bec ause the community corrections program was unable to prepare a report by October 4, 2001, the trial court granted the

Defendant another continuance and r eset the sentencing hearing for October 12, 2001. For reasons not stated in the record, the matter w as later continued until November 29, 2001.

On November 29, 2001, the Defendant’s sentencing hea ring took place. At the conclusion of the hearing, the trial

court declined to grant the Defenda nt any form

of alternative sentence. The Defendant

now appeal s the judgment of the trial court, arguing (1) that the trial court erred by excluding as exhibits at the sentencing hearing two documents, or, in the alter native, that

he should have been granted a cont inuance on the date of the hearing ; and (2) that the trial court erred by denying his application for probation. Having reviewed the record, we find no error by the trial court and thus affirm the Defendant’s sentence

.
II . FACTS UNDERLYI

NG CONVICTION
According to the Knox County Sheriff’s Office Community

Alternatives to Prison Program report, the Defendant made the following comments about the offense in this case: I was intoxicated, under the influence of Xanax, re ally

drunk. I just remember having dinner at Chili’s with friends. We went to Wal-Mart to get

things f or new a partmen t. My friends went in while I was f umbling with a CD. A man got out of his car and said somet hi ng. I aske d him w hat h e sai d. He

said I was d runk , to c hill o ut. We startedcussing each other out. Then we start ed exchanging blows. We fought for about a minute, as best I remember

. I got up in my friends [sic] Blazer a

nd got so me brass knucklesand hit the guy withthem. We continued to fight. Guys br oke us up. I jumped in friend’s Blazer a nd drove off. The police arrested me.1 The D efend ant’s Knox C ounty Community Alternati ves to Prison Program assessment indicates that the

De fenda nt pled guilty in Ca mpb ell Co unty to o ne co unt of the ft in an am ount o ver $ 1,00 0 and to one coun t of theft in

an amo unt und er $1 ,000 . It also ind icates tha t the D efend ant p l ed gu ilt in Cam pbe ll Cou nty to “[f]elo ny [f]ailure to [a]ppear” an d to “[u] nderage [d]rinki ng.”
-3- The report notes: “This version of the account is different and p robably more a

ccurate than the statement in the [pres entence r

epor t]. In that report, [the Defenda nt] indicated the fight started over

a comment made toward

one of the

girl’s [s ic] in his party and that the victim fell and hit his head.”

II I. EVI DENCE PRESENTED AT THE SENTENCING HEARI NG

The following evidence was present e d at the Defendant’s sentencing he aring: Vivian McCarthy

testified that she was a probation and parole manag er for the Boa rd of Prob atio n and Parole. She state d that as p art of he r duties, she inter

views pote

ntial prob ationer s to determine their abilities to successfully complete enhanced probation. She stated that L aur a Thomp son, another employee of the Board of Probation and Parol e, in terview ed the De fendant and compl eted his presentencereport. McCarthy testifie d that, according to the presentence report, the Defendant had

a juvenile record , which in cluded charge s involving underag e alc ohol consumption, “alcohol-related problems , [and] a vehicle[-]related problem.” She also statedthat his juvenile record included a theft charge and a vandalism charge. McCarthy further testified that in Campbell County, the De fendant pled guilty

to theft in

an amount over $1,000; to two counts of contributing to the delinquency of a mi no r; to ag gr av at ed bu rg la ry; and to theft. 1 In addition, she stated that Thompson found that the Defendant

was not dil

igent w ith reg ard to appearing in court and that he failed to return one of her calls.
McCarthy

summarize d Thompson ’s asses sment of th e Defe ndant’s a bility to succe ssfully complete probatio n as follo ws: [H]e’s an extremely high r isk. He does have prior misdemeanors and a ju venile record. He also has an active capias attachment a nd a violation of probation pending in Campbell County

of those charges that we

just discussed. He was court ordered to Peninsula

[Hospital] a s a juveni le for an evaluatio n but left t he faci lity prior to the evaluation. He failed to report to this office for the prese ntence investigation and report, as ordered by

the Court on February

the 2 3rd , 20 00, and f

ailed to r eport to court for his sentence hearing on 4-19-00. He denies a ny c urrent u se of ille gal dru gs. He also denies any pr

obl ems wit

h alcohol; however, his prior criminal record – history involves several charges and/or c onvictions for alco hol-rela ted offenses. And he stated he was drunk when he committed the curre nt offense.

On cro ss-examination, McCarthy stated that althoug h she had spoken with the Defendant while he was in custody, most of the information that she had presented on direct examination was basedon an investigation which included Thompson’s interview of the Defend ant, polic e recor

ds, and court records. She recalled that when she spoke with the Defendan t, he told her t hat he was-4-

“trying to work on h i s alcohol

problem. ” When ask

ed about h

er impre ssion of the Defe ndant, McCarthy stated, I try to give e very body a chanc e. I

know this is a very, ve

ry long se ntence. I do know that it would be

almost impo ssible if

he were to try

to be on our probation program

as well as Campbe

ll County ’s Community

Alterna tives to Pri son Prog

ram. There’s no way he c ould successfully complete that.
McCarthy

also acknow ledged portions of the presentence r eport which concerned the Defendant’s family history . She stated that the Defe ndant’ s parents divorced when he was three yearsold and that he did not have contact with his father until he was eighteen yea rs old. She also reported that the Defendant’s father is an owner of Tennessee Tube Bending and that his mother was employed as a respiratory

therapist for twenty -one yea rs until she became addicted to painkillers and lost her job, family, and home. McC arthy stated tha

t the Def endant ha d not had c ontact wi

th his mother since 1998 and that his maternal grandmother washis primary car etaker when

he was a child. However, she reported that the Defendant’s g randmother died when

the Defe ndant wa s a

freshman in high school.

On redirect examination, McCarthy testified that the D efenda nt was invo lved in Cam

pbell County’s community corrections program at the time of the hearing . She explained thatCampbell County’s program was equivalent to Knox County ’s CAPP. She stated, however, that the Defendant was in “violation status” at the time of the hearing.
Tony Peterson, an employee of the Community Alternatives to Prison Program, testified that he evalua ted the Defe ndant to determine whether he was an appropr iate candidate for CAPP. He acknowledged

that the D efenda

nt was i nvolve d in Campbell County’s community corrections program at the time of the hearing, having re ceived a nine-year sent ence in that county for two charges of theft, aggravate d burglary , failure to appear, contributing to the delinquency of a

minor, and underage dr

inking. He stated tha

t the Def endant w as on viola

tion statuswith the c ommunity corrections program.

Peterson testified that he had concluded that the Defendant wa s not an appropr iate ca ndidate for CAPP. He explained that he reache d this conc lusion bec ause the Defendant “didn’t respond very well to the Community Corrections in Campbell County ” and because he was considered a risk due to the violent nature of the crime in t his case . Peterso n explaine d that viole nt offen ders ar

e inelig ible for CAPP. He stated that the eligibility criter ia of TennesseeCode Annotated § 40-36-101 require that a candidate be a non-violent offender convicted of property -related, alco hol-rela ted, o r drugrelated offenses.

On cross-examination, Peterson testifiedthat he was aware of the “special needs” provision of the statute governing CAPP. He explained that this provisionallowed f or place ment on CAPP of offenders with substance abuse problems or mental hea lth issues. He testified that he was aware that the Defendant reported a chronic history of alcohol abuse

or mental health prob lems, but he stated that his of

fice did not investigate whether these problems related to the cr iminal conduct in-5-

this case. Peterson testified that he did not interview the Defendant himself. Peterson reported that

a “level o f servic e invento

ry ,” which

provides“a quan

tifiable individua l assessme

nt o f the l ikelihood of an offender reoffending

withouttreatment,” was administered to the Defendant. Ac cording to the in ve nt or y, the Defendant was assessed as a “[m]oderate risk” with a 31.1 percent chance of reoffending without treatment. Peterson stated that the level of risk coul d decrease if treatment were made available to the Defendant. Peterson acknowledg ed that sub stance abuse treatments and counseling sessions were available through CAPP, and he state d that he h ad noted s ome succ ess among participants in CAPP who took advantage of such prog rams.

Ma ri lyn McCollum te stified on behalf of the Defendant. She stated that she was acquainted withthe Defendant

because he had de

veloped a romantic relation ship with

her daughter during the spring prior to the hearing. McCollum reported that she had submitted a letter to the cour t concerning the Defenda

nt.

McCollum testified that

at the time

she met the Defendant, she was not aware that a capias for his arrest had been issued. However, she re ported that she was aware that the Defe n da nt had made effortst o enroll in a substance abuse treatment progr am at the Salvation Army Rescue Mission. She stated that

she knew that the Defendant “stay ed there awhile,” but she

did not know whether he actually took part in a treatment program while there. She a lso testified, “As far

as I knowhe did not complete [the programs at the mission] . . . .”
McCollum testified that she arranged for the Defe ndant to a ttend cou nseling sessions w ith

a psychologist that her

daughter was alread

y se eing. She recalled that the Defe ndant attended “maybe three sessions” with her daughter bef ore his arrest. McCollum fu rthertestified that the Defendant

attended Alcoholics Anony mous (AA) meetings during the time that she knew him and that he also a ttended c hurch with her fa

mily . In a

ddition, she stated

that she “ was t old” that the Defendant signed up for ang er management classes.
When asked what sentence the court should impose, McCollum replied, That’s a very dif

ficult question. I want the Court to do what

is in [the De

fendant ’s] b es tinterest . . . . I

feel like if he go t the help

that he needs with a

lcohol pr oblems which –of course, being in prison has kept him from being a ble to drink. But I feel like if he were on the outside and in a progra m and was in a supervised situation that he would be a

ble to mak

e the cha nges tha t he need s to in his life, because I saw him doing that two or thr

ee wee ks prior to

his arrest. I felt like I

saw that with my own ey es, that he wa s definite ly ma king a c hange . He made

a huge chang e in my daughter’s life, and I

would like to see him have another chance.

On cross-examination, McCollum testified that the D efenda nt checked into the rescue mission because of his alcoholism, but left at the urging of her daug hter. She explained that the Defendant

and her daughter had bee

n living together before he moved to the rescue mission, and her daughter missed him and wanted him to find help on an out-pa t ie nt ba si s a t a no th er fa ci li ty. McCollum testified that the Defendant therefor e voluntar ily left the rescue mission. McCollum-6-

explained that the Defendant attended AA meet ings as a req

uiremen t of the re scue missi on prog ram. She also testi fied tha

t sh e had served as a job referenc e for the Defendant. She reported that the Defendant

had obtained employment at Goodwill I ndustries, but was arrested on the day after he got the job. Finally, McCollum testified that the Defe ndant owed her

and her h usband a pproximate

ly $2,500 because he had twice wrec ked her daughter’s car

and because he owed them some money for prescription medications.

IV. A NALY SIS

A. ADMI SSION

OF EVI DENCE

The Defendant first argues that the trial court er red by refusin g to allo w into evid ence at his sentencing hearing

two docum

ents: a discharge summary

from Peninsula Hospital and a letter from Reverend Robert C. B urch, the minister at Calvary Baptist Church in Knoxville. In his brief, the Defendant

states that he attempted to introduce the Peninsula Hospital discharge summary to rebut testimonyby Vivian McCarthy concerning the reason he was discharged from the hospital. He states that he attempted to introduce the letter from Reverend Burc h to show that prior to his arrest the Defendant

was attending church and having a positive effect on his girlfriend, who was a lifelong member of the church. In the a

lternative, he argues that even if it wa s not error for the tr ial cour t to exclude the documents, the trial court erred by denying his motion for a continu ance made on the day o f the sentenci ng hearing. He contends tha t a continuance would have granted him the “opportunity to present important re buttal and character proof at his sentencing hearing.”

Ge ne ra ll y, the admissibility of evidence is entrust ed to the sound d

iscretio n of the tr

ial cour t, and a trial court’s ruling with regar d to the admissibility o f evidence will not be reversed on appeal absent an abus e of disc retio n. State v. James , 81 S.W.3d 751, 760 (Tenn. 2002). “An abuse of discretion exis ts whe n the r eview ing c ourt is firmly convinced that the lowe r court has made a mistake in that it

affirmatively a

ppears that the lower court’s decision has no basis in law or in fact and is theref

ore arb itrary , illogic al, or unconscionable.” State v. Brown & Williamson Tobacco Corp. , 18 S.W.3d 186, 191 (Tenn. 2000).

A trial cou

rt has the

statutory authority

to admit trustwort hy and probative e vidence, including hearsa

y, f or sente ncing p urposes. State v. Mo ss , 13 S.W.3d 374, 385 (Tenn. Crim. App. 1999); see Tenn. Code Ann. § 40-35-209(b). Reliable hearsay is admissible in a sentencing hearing

as long as the opposing party has a fair opportunity to re but the evidence. Id. The hearsay evidence must also carry

an indici a of reliability

to satisfy due proce ss. State v. Taylor , 744 S.W.2d 919, 921 (Tenn. Crim. App. 1987).

The record indicates that when the Defenda ntattempted to introduce the two documents at issue into evidence, the State commented that it had received the documents on the prior afternoon “at the very c lose of business.” The State told the trial court that because of this, it h ad been

unable to fully review a

nd verify the c ontents of the documents, despite attempts to contact Reverend Burch

on the evening prior to

the hear ing. The court re sponded th at it would grant t he State t he oppor tunity-7-

to review the documents and the parties the opportunity to ca ll witnesses with regard

to docume

nts, butcautioned that in orde r to do so, it would have to reset the sentencing hearing . After further discussion, counsel for the defense requested a con tinuance t o “establish the necessary authentification for Mr. B[u]rch’s letter and for the Peninsula Hospital discharge.” The trial court then denied the motion for a continuance.

The State now argues that the trial court actually did consider the two document s at issue in sentencing the Defendant. Although the record is unclear, it appears that the trial court considered only the sentencing memorandum to which the two documents were attached, but not the docum

ents themselve s. It

appears that

the trial court considered only the sentencing memorandum, which was signed and filedby d

efense counsel, as part of the technical recor d. If, as the State arg

ues, the trial court did consider the two documents, the Defendant cannot now be he ard to com plain. Nonetheless, assuming

that the tr ial cour t did not co nsider the docume nts, as the Defend ant arg

ues,
we conclude that the court’s decision not to admit

the two do cuments in

to evidence was not error. Because, due to the late filing of the documents, the State was not

granted a fair opportunity to rebut the document s, the tria

l court did

not abuse

its discre tion in ref using to a dmit the doc

uments int o evidence. SeeTenn. Code Ann. § 40-35-209(b).

In the alternative, the Defendant argues that the tria l court erred

by r efusing to gran t him a continuance to procure witnesses to present rebut tal an d chara cter pr oof at his s enten cing he aring. “The granting or denial of a continuanc e is a matte r left to t he sole di scretion

of the tri al court , whose decision will not be disturbed absent ‘a clear showing of g ross abu se o f this discretion to the prejudice of the def

en dant.’” State v. G oodwin , 909 S.W.2d 35, 44 (Tenn. Crim. App. 1995) (quoting Baxter v. State , 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973)). This Court h as previ ously stated that “[t]he only test is whether the defenda nt has been deprived

of his rights and an injustice done.” State v. Goodman , 643 S.W.2d 375, 378 (Tenn. Crim. App. 1982). To reverse the judgment of the trial judge, we must be convinced that “the complaining party

did not hav e a fair

trial and [that] a different result would or might reasonably have been re ached had there been a different disposition of” the application for a continuance. Id. (emphas is in orig inal); see also State v. Butler , 795 S.W.2d 680, 684 (Tenn. Crim. App. 1990).

The trial court did

not state its r eason s for d enying a con tinu ance on the da y of the hea ring. However, in light of the extended time period be tween th e Defendant’s plea and his sentencing hearin g, caused primarily , if not exclusively, by the Defendant’s failure to coopera te with court orders and his failure to appear in court on more than one oc casion, we conclude that the trial court didnot abuse its discre tion by refu sing t o grant a cont inuan ce at t he sen tenci ng heari ng. Furthe rmore, we are unconvinced that the trial court would have ultimately imposed a diffe ren t sentence had it granted the Defendant’s application for a continuance

. We therefore conclude that this issue i s without me

rit.

B. ALTERNATI

VE SENTENCING-8-

The Defend ant next ch alleng es on app eal the tr ial cour t’s orde r that he serve hi s sentenc e in the Tennessee Department of Correction. He contends that the State failed to rebut the presumption that h e was a favorable candidate f or alternative sentencing and ar gues that he should hav e bee n granted probation.

When a criminal defendant challenge s the length, range, or manner of service of a sentence , the reviewing court must conduct a de novo review of the sentence with a presumption that the determinations made by the trial c ourt are correct. Tenn. Cod e Ann. § 40 -35-401( d). This presumption, however, “is conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances.” Statev. Ashby , 823 S.W.2d 166, 169 ( Tenn. 199 1). I n the eve nt that the record fails to show such consideration, the review of th e s en te nc e i s p ur el y de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making i t s sentencing determination, the trial court, at the conclusion of the se ntencing hearin g, determines the range of sentenc e and then determines thespecific sentence and the propr iety of sentencing alternatives by considering (1) the evidence, if a ny, rece ived a t the tria

l and the sentencing hearing, (2) the presentenc e report, (3) the principles of sentencing and arguments as to sentencing alternatives , (4) the n ature and characteristics of the c riminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statemen ts the defendant wishes to make in t he defenda nt's behalf about sentencing, and ( 7) the potential for re habilitation or treatment. Tenn. Cod e Ann. §§ 4 0-35-210 (a), (b ), -103( 5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumpt

ive sente nce to be imposed by

the trial court fo r a Class B , C, D or E f

elony is the minimum with

in the app licable r

ange u nless there are enh anceme nt or mitig ating f

actors p resent. Tenn. Code Ann. § 40-35-210(c). I f there are enhancement or mitigating factors, the court must start at the presumptive sentence, enhance the sente nce as appropriate for the enhanc ement factors, and then r educe t he sen tence i n the r ange as appropriate for the mitigating fa ctors. Id. § 40-35-210(e). The weight to be given

each factor is left

to the discretion of the trial judge. Shelton , 854 S.W.2d at 123. However, the sentence must be adequate ly supported by

the record and comply

with t h e purposesand princ iples of th e 1989 Sen

tencing Reform A ct. State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a sentence, the trial court must make specific findings of

fact on the record supporting the sentence. Tenn . Code Ann. § 40-35-209(c). The record should also include a ny enhancement

or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if thetrial court wis hes to enh ance a s entence , the cour t must state its reasons on the record. The purpose of recording the court’s r easoning is to gua rantee the prep aration

of a prop er rec ord for a ppellate review. State v. Er

vin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a law ful sen tence after having given due consideration and proper weig ht to the-9-

factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequately

supported by the record, then we may not modify the sentence

“even if we would have preferred a different result.” Statev. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.
Sp ec if

ic al ly, the Defe

ndant ar gues tha t he should

have be en gra

nted some form of alternative sentenc ing. Te

nnessee Code Anno tated § 40 -35-102( 5) provid es as follows: In recognition that state prison capacities and the funds to build and maintain themare limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disreg ardfor the laws and morals of society , and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarcera tion . . . . A defendant who does not fall within this cl ass of offenders “and who is an especially mitigated offender or standard offender

convicted of a Class C, D, or E felony is presumed to be a f

avorabl e candida te for a lternati ve sente

ncing in the absence of evidence to the contra ry.” Tenn. Code Ann. § 40-35-102(6). Further

more, unl ess sufficient evidence rebuts the presumption, “[t]he trial court must presume that a defe ndant sen tenced to eight years or less and not an offender for whom incarcer ation is a prior

ity i s subject

to altern ative se

ntencing and that a

sentenc e other t

h a n incarceration

would result in successful rehabilitation.” State v. Byrd, 861 S. W.2d 377, 379-80 (Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). T he Defe ndant, as a standard offender convicted of a Class C felony , see Tenn. Code Ann. § 39-13 -1 02(d), is presumed to be a favorable candidate for alterna tive sentencing.

However, all offe

nders wh o meet the

criteri a are no t entitled

to relief ; inste a d, sentencing issues must be deter mined by the facts and circumstances of eac h case. See State v. Taylor , 744 S.W.2d 919, 922 ( Tenn. Crim. App. 1 987) ( citi ng Moss , 727 S.W.2d at 235). Even if a defendant is presumed to be a favorable candidate for a lternative sentencing under Tennessee Code A nnotated § 40-35-1 02(6), th

e statutor y pr esumption

of an alt ernativ e sentence may

be overc ome if (A) [c]onf

inement isnecessa

ry to protec t society

by restraining a defendant who has a long hist ory of crimin al conduct; (B ) [c]o nfinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide a n ef

fective deterr ence to others likely to commit similar offenses; or (C) [m]easures less restrictive than confinement have fr equently or rece ntly been applied unsuccessfully to the defendant . . . . Tenn. Code Ann. § 40-35-103(1)(A)-(C). I n choosing among possible sentencing alternatives, the trial court should also consider Tennessee Code Annotated § 40-35-103( 5), which states, in pertinent part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be considered

in determining the sentence alternative or le ngth of a term

to be imposed.” Id. § 40-35- 103(5); see also State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).-10-

The Defend ant mo re s pec ifi cal ly ar gue s t hat he s hou ld hav e be en g ran ted pro bat io n. In determining whether

to gran t or deny probatio n, the tr

ial court may conside

r the circumstances of the offense; the defendant’s criminal rec ord, background and social history; the defe ndant’s physical and mental health; the deterrent effect on other criminal activity ; and the likelihood that probation is in the best interests of both the public and the defendant. State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The defendant bears the burden of establishing suitability f or probation. Tenn. Cod

e Ann. § 40 -35-303(

b); Ashby , 823 S.W.2d at 169.
In sentencing the

Defendant, the trial court ac knowledg ed the De

fendant ’s diffic

ult family history and history

of addictions, stating It is obvious to the Cour

t that [the D efenda

nt] from his youth has had a lot of prob lems, a nd those pr

oblems ha

ve resul ted in an a

lcohol and substanc e abuse problem. [The Def

endant] ha s had prob lems with vi olence. [The Defendant] has basically tr

eated himself for

those pro blems.

. . . . [The Defend ant has] ha

d a lot of p

roblems th at . . . did n ot start ou t [his] fault, but[he] is an ad

ult now. [He

has] depr

ess io n problem s. [He has] s ubstance abuse problems

. [He i s] a d anger to [him self] when [ he is] out t here ju st do ing whate ver [he] want[s] to do

because [he is] trea

ting [himse

lf] with dru gs and w ith alcoh ol. [T he De fe nd an t] is no t t ak in g r es po ns ib il it y.

. . . . It is . . . hard to deal with an addiction pr ob le m, bu t yo u h av e t o m ea n w ha t yo u s ay. Truthfulness has to have a lot to do with it.

The tria l court a lso noted t

he Defe ndant’s p oor histor

y of complian ce with c ourt orde rs: [The Defendant] was arrested in this case, I guess, fairly

shortly before

an Information

was take n and ca me into the

court to enter a guilty plea by I nformation, and that date was February 23 rd , 2000. I

t was set f

or proba tion. He d

id not ge t a [presentence] report done. He neve r showed back up to

court, and a capias . . . was taken on him on April the 19 th when he should have been in court for probation. He had charges which preda ted this but which were sentenc ed afte r this so he

wa s a lr ea dy i n t ro ub le at th at po in t w it h t hi s c ou nt y an d C am pb el l C ou nt y. [The Defendant] was taken int o custody in June of 2000. A bond was set which he somehow was – actually , we reduced it and required him to be c ontinually supervised by enha

nced probation, pending further disposition. He made a small bond in September of 2000, and the very next court date [the Defend ant] did not show back up. The bonding company had to ask for warrants and

an extension o f time to c ollect [the Defend ant]. He w as finall y ta ken into custody

in Aug ust, and he h as been in custody since, pe nding the opportuni

ty to get all this informat ion befor e the Cour

t. The trial court also pointed out that the Defendant did not comply with the requests of his probation officer in Knox County or with the terms of his proba tion in Campbell County.-11-

In addition, the trial court commented about the Defe ndant’s l ack of effort to h elp himself while cr iminal cha

rges w ere pending ag ainst him: [The Defend ant] really d

id nothing to help hims e lf ex cept tha t when he finally got into the relationship with Ms. McCollum’s daughter, Dr. and Mrs. McCollum tried to help him. They assisted him with some treatment. They assisted h

im with some help. But he was not real honest with them . . . .

. . . . [The Defendant] went to the Mission and the Mission says – and I quote . . . – I am not sure what pag e this is of the CAPP report, but it is in the CAPP report. “While [the Defendant] is a very likea ble young fellow, he has burnedhis bridges at the Mission an d they

will not ac cept him b ack at th is time. L

ikewis e at S alvation Army Boot Straps, they re

port similar behavior. [The Defendant] would come in, say he was going to do it, and would leave before he ever did an yt hing an d left unp aid bills.” [T he De fe nd an t] di d t he sa me th in g i n C am pb el l C ou nt y. [He] got into trouble and then . . . just wanted to do what [he] wanted to do, an d it is a good life until [he] get[s] caught. . . .

. . . . [The Defendant] actually caused damage to [the McCollums’] property for which [h e] ow e[ s] th em mo ne y. [He has] done a lot of things where . . . if [he] meant to change [his] way s, [he] did not re ally

get ser ious about

it until [he] realized within two weeks of being arrested that [he w as] about to get bac k into a str

iped suit.

The cour t further noted tha t althoug h many had trie d to helpthe Defendant, theDefendant did not take advantage of the help he was offered. The cour tattributed the Defendant’s two-week attendance of AA mee

tings to M

rs. McCo l lum’s efforts. The court also found that the Defendant was untru thful: [The Defendant] . . . has not been truthful with the Court. [He] ha s failed t o do any numbe r thin gs over and over. He was not truthful with the people that tried to help him, not atthe Mission, not at the Salvation Army, not at the probation office, not with the McCollums, not anybody

.
The court the

n pointed o

ut the nature o f the offense in this case and acknowledg ed the of fe ns es he co mm it te d i n C am pb el l C ou nt y: I also have to recognize that [theDefend ant] is here because he committed an aggravated

assault. . . . Ths first version he finally told [Laura Thompson] had to do withsomebody hitting themselve s i n the head on a sidewalk because he knoc ked themdown. The second v ersion th at he told CAPP had to d

o with some

brass knuckles that he went and got out of his truck . . . and hit somebody with. [The Defendant] is here because he ca used a violent

offens e aga

inst

so me bo dy. He was convicted of a major fe lony theft off ense and other of fenses i n Campbell County.-12-

The court concluded, I amencouraged that [the Defendant] has cha nged some of his way s, and I am very sorr y that . . . he soug

ht to do that so late.

. . . . [The Defend ant] need s to under stand tha t

. . . I recognize that he has been betweenrocks and hard pla ces all h is life, a nd he just c ame up ag ainst a rock . . . he cannot wiggle around. Unfortun ately , [the Def endant] needs to fol low throug h with this. And once he has completed it, then he will have completed something in his life for which he is responsible and can go on with his life. Following these comments, the court found the Defendant ineligible for CAPP based on his “actions toward[the] [c]ourt” and based on his prior record. Thecourt thus denied the Defendant probation

an d o rd er ed th at th e D ef

en da nt se rv e h is se nt en ce in th e p en it en ti ar y.

Alth ough the tr ial co urt di d not state speci fic fi ndin gs regard ing t he fa ctors en umerate d in Tennessee Code Annotated § 40-35-103(1), we conclude, based upon the findings of fact made by the trial cou

rt, that a t least one of the factors applies in this case. Tennessee Code Annotate d § 40- 35-103(1 )(C) s tates that the st atutory presumpt

ion of an a

lternati ve sente

nce may be overc ome if “[ m]easures less restrictive than confinement have freque ntly or rec ently been applied unsucce ssfull y to the defendant.” Obviously, the Defe ndant has a history of nonc ompliance with court orders and withth e te rms of p rob ati on. In fact, testimony at the sente ncing hearing reve aled that the Defendant

was on “violation status” with a Campbell County community corrections sentence at the time of the sentencing hearing in this case. Furthermore , it is clear from the trial court’s comments that the court considered

the Defendant’s potential for rehabilitation to be poor without the service of some time in the penit

entiary . Finally , the cour

t indicate d in its comments at the conclusion of the sentencing hearing that it did

not believe that pr

obation w ould be in t

he best in terest of the De fendant . For the se
reasons , we conclude that thetrial court did not err by denying probation and ordering the Defendant to se rv e h is en ti re se nt en ce in th e p en it en ti ar y. Accordingly , we AFFI

RM the judgment of the trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE