# FILED
September 3, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1999 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 02C01-9812-CC- 0 038 5 ) vs. ) Hardin County ) JEFFERY RUSSELL UTLE Y, ) Hon. C. Cree d McGinley, Judg e ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE: GUY T. WILSON PAUL G. SUMM ERS District Public Defender Attorney General & Reporter RICHARD W. DEBERRY PATR ICI A C. KU SSM AN Assistant Public Defender Assistant Attorney Gener al 117 North Forrest Avenu e 425 Fifth Ave. N., 2d Floor Camden, TN 38320 Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General 111 Church Street Huntingdon, TN 38344 JOHN W. OVERTON Assistant

DistrictAttorney General P.O. Box 484 Savannah, TN 38372-0484

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE1 The value of the truck is not apparent from the record. T his value is in

direct correlation to the classification of the offense of theft. There ar e several references to the defendant being convicted of a Class C felony for theft, which correlates to a theft of over $ 10,000 but less than $60,000. See Tenn. Code Ann. § 39-14-105(4) (1997). However, the present ence report reflects the defendant was indicted for theft over $1000 bu t less than $10,000, a Class D felony. See Tenn. Code Ann. § 39-14-105(3) ( 1997). Neither the judgment nor indictment for the theft offense are in the appel late record. Howev er, this matter is not relevant to our d etermination in this case. 2 OPINION

The defendant, Jeffery Russell Utle y, a ppeals from his sentences imposed for arson and theft in the Hardin Cou ntyCircuit Court. See Tenn. Code Ann. §§ 39-14-301(a), -14-103 ( 1997). The trial court impos ed concurrent three
year sentences in the Tennessee Department of Corr ection. In this direct appeal, the defendant challenges the manner of ser vice of his sentences. After a review of the record, the briefs of the parties, and the applicable law, we affirm the trial court.

Th e facts of this case are not described in detail in the re cord. O n October 14, 1998, the defendant pleaded guilty to arson and theft. The guilty plea forarson arose out of a May 29, 1998 incident in which the defendant set fire to an
a part ment which caused some damage. The theft offense occurred on June 7, 1998, when the defendant and his codefendant stole a Nissan pick up truck valued over a thousand dollars ($1000). 1

At the time of sentencing, th e 23- year old defendant had a sparse employmenthistory. He had been m arried for a few months and had two stepchildren. He dropped out of high sch ool, but he later obtained his GED. The defendant has previous convi ctions for assault, aggr avate d ass ault, theft, possession and distributi on of intoxicating liq uor, and DUI.3 The defendant contends heshould have been granted some form of alternat ive sentencing. When there is a challenge to the length , range, or manner of service of a sentence, it i s the duty of this court to conduc t a de novo

review of the record with a presumpti on that the determinati ons mad e by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d) ( 199 7 ). This presumption is

“ condi tioned upon the affirmative showing in the record that the trial court considered the sente nci ng principles and all relevant facts and circums tances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burdenof showing that the sentence is improper is upon the appellant.” Id . In the event the record fai ls to demonstrate the required consideration by the trial court, review of the sentence is purely de novo

. Id . If appellate review reflects the trial court properly considered all relevant facto rs and its findin gs of fact are adequately supported by the record, this court must affirm the sentence, “even if we w ould have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

In making its sentencing determination, t he trial court, at the conclusion of the sentencing hearing, determ ines the range of sentence and then determines the specific sen tence and the propriety of sentencin g alternatives by considering (1) the evidence, if any, received at the trial and t he sentencing h earing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristi cs of the crimina l conduc t involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statements the defendant wi shes to make in the defendant’s behalf about sentencing, and (7) th e p otential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40- 35-103(5) (1997); State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

In the present case, the trial c ourt’s sentencing determination is4

entitled to the presumption of correctness because the record reflects that it considered the relevant sentencing principles.

A defendant “who is an especial ly mitigated or standa rd offender convicted of a Class C, D, or E felony is presumed to be a favorable candi date for alternat ive sentencing options in the absence ofevidence to contrary.” Tenn. Code Ann. § 40-35-102(

6) (1997). Thus, a defendant who me ets t he criteria of section 40-35-102(6) is presumed eligible for alternative sentencin g unl ess sufficient evidence rebuts the presumption. However, offenders wh o meet the criteria are not automatically entitled to suc h reliefbecause sentencing issues should be determined by the facts and circumstances presented in each case. State v. Taylor, 744 S.W.2d 919, 92 2 (Tenn. Crim. App. 1987).

The defendant, a Range I standard offender, enjoyed the presumption of favorable candi dacy for alternative sentencing for the offenses involved in this
case. See Tenn. Code An n. § 40-35-102(6) (1997). Further, the defendant was eligible for probation because his eff ective sentence was three yea rs. See Tenn. Code Ann. § 40-35-303(a) (1997) . In determining whether to grant probation, the judge must consider the nature and circumstances of the

offense, the defendant ’s criminal record, his background and socia l history, his present condition, inc luding his physical and mental condition, the deterr ent effect on other criminal activ ity, and the likelihood that probation i s in the best interests of bo th the public and the defendant. See Stiller

v. State , 516 S.W.2d 617, 620 (Tenn. 1974). The defendant bears the burden ofestablishing suitabil ity for probation, even when the defendant is presumed to be suitable for alternativ e sentencing. See Tenn. Code Ann. § 40- 35-303(a)-(b) (1997).5 The trial court implicitly found the defendant was not amenabl e to rehabilitation because measures less restr ictive than confinement h ad proven unsuccessful. The trial court noted the defendant’s felony record andthe fact that the defendant “failed toabide by the rules and regulations” of previous a lternati ve sentences. In view of these fac ts, the defen dant failed to carry the bur den of establishinghis suitability f or probation. The trial cour t’s determination that the defendant was not a fit candidate for pr obation is amply supported b y the record.
Turning to other forms

of alternative sentencing, an offender is eligible for the Community Correcti ons program, if he meets the follow ing criteria: (1) Persons who, without this opt ion, would be incarcerated in a correc tional institution; (2) Persons who are conv icted ofprop erty-related, or drug/alcohol-related

felony offenses or o the r felony offenses not involving crimes against the person .

. . (3) P ersons who are convicted of nonviolent felo n y offenses; (4) Persons who are c on victed of felony offenses in which the use o r possession of a weapon w as not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) P ersons who do not demonstrate a pattern o f committing violent offenses; and P ers ons who are sentenced to incar ceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a)(1)-(6) (1997). Although the trial court did not make
a finding regarding w

hether the defendant was eligible for

community corrections,
we find the defendant to be ineligible. The defendant w as convicted of assault and aggravatedassault, which indicates a past pattern of violent behavior. SeeTenn. Code Ann. § 40-36-106( a )(5) (1997). Thu s, the trial court did not err in denyin g a community corrections s entence.6 There is additional evidence in the record to rebut the pres umption of t he d efendant’s candidacy for alternative sentencing. For all the defe ndant’s previo us sentenc es, he rec eived at le ast a peri od of pro bation. Howeve r, h e continued to commit offenses and his probationa ry s entences were revoked. Therefore, the record supports the tr ial court’s finding that confinement was necessary because “measures less restricti ve than co nfinem ent have f requentl y .

. . been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35- 103(1)(C) (1997).

Accor din gly, the evidence supports sent ences of total confinement. The judgment is affirmed.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________ JOSEPH M. TIPTON, JUDGE

_______________________________ JOHN EVERETT WILLIAMS, JUDGE