IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON FILED AUGUST SESSION, 1997 October 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9701-CR-00005 ) Appellee, ) ) SHELBY COUNTY ) V. ) ) HON. ARTHUR T. BENNETT, CONNIE L. FULTON, ) JUDGE ) Appe llant. ) (THEFT O VER $ 500.00)

FOR THE APPELLANT: FOR THE APPELLEE: ROBERT M. BRANNON, JR. JOHN KNOX WALKUP Washington, Suite 3 Attorney General & Reporter Memphis, TN 38103 DEBORAH A. TULLIS Assistant Attorney General 2nd Floor, Cordell Hull Building Fifth Avenue North Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General PERRY HAYES Assistant District Attorney General Poplar Street, Suite 301 Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Defe ndan t, Con nie L. Fulton, appeals as of right the determination of the Shelby County Criminal Court that the sentences she received for various convictions shou ld be served by incarceration and not by alternative sentencing.

The Defen dant en tered gu ilty pleas to three counts of theft, one count of reckless driving, and one count of driving a moto r vehicle while her license was revoked, canceled, or sus pend ed. Pu rsuan t to a ne gotiated plea agreement, the Defendant was sentenced to two years as a Range I Standard Offender for her convic tion for theft over $500. This sentence was ordered to be served conc urren tly with her two nine-m onth se ntence s for theft under $500, her 90-day sentence for reckless driving, and her 90-day sentence for driving while her license was revoked, suspended, or canceled. After an evidentiary hearing, the trial court ordered the sentences to be served to tally by incarc eration. In her s ole issue on app eal, the Defendant argues that the trial court erred in denying her alternative s entenc ing. W e affirm the judgm ents of the trial court.

When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all rele vant facts and circu mstan ces." State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1991 ).

-2- In conducting a de novo review of a sentence, this Court must consider the evidence adduc ed at trial and the sentencing hearing, the presentence report, the principles of sentencing, the arguments of counsel relative to sentencing alternatives, the natur e of the offe nse, an d the de fendan t’s potential for rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955-56 (T enn. Crim A pp. 1996).

If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principals set out under the sentencing law, and that the trial cou rt'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. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record, we find that the trial court considered all the proper sentencing principles and stated its reasons and findings on the record.

Therefore, review by this court is de novo with a presumption of correctness.

Tennessee Code Annotated section 40-35-102 outlines when alterna tive sentencing is appropriate. A defendant “who is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favora ble candida te for alternative sentencing options in the absence of evidence to the contra ry.” Tenn . Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted felons c omm itting the most seve re offenses, possessing criminal histories e vincing a c lear disreg ard for the laws and morals of soc iety, and evincing failure of pa st efforts at re habilitation s hall be give n first priority regarding sentencing involving incarceration.” Te nn. Code Ann. § 40-3 5-102(5).

-3- Thus, a defendant sentenced to eight years or less who is not an offender for whom incarc eration is a prio rity is pre sum ed elig ible for alternative sentencing unless sufficient evidence rebuts the presumption. However, the act does not provide that all o ffende rs who mee t the crite ria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances presented in each c ase. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.

App. 19 87).

Additionally, the princip les of se ntenc ing refle ct that th e sen tence shou ld be no grea ter than tha t deserved for the offense committed and should be the least severe measure necessary to achieve the purposes for which the sentence is impos ed. Ten n. Cod e Ann. § 40-35-1 03(2) an d (4). The court should also consider the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in determ ining the s entenc e alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).

The Defen dant arg ues tha t the trial judge erred when he s tated: “You’ve got to convince me that you don’t need to go to jail and stay there as long as we can keep you there,” because this denied her the presumption of being a favora ble candidate for alternative sentencing pursuant to Tenn. Code Ann. § 40- 35-102(6). Although the judge may have acted prematurely in implying that the Defendant did not ha ve that pre sump tion, after a carefu l review of the re cord it appears that the judge was knowledgeable of the Defend ant’s criminal history prior to the s entenc ing hea ring.

When imposing a sentence of total con fineme nt, our Criminal Sentencing Reform Act mandates the trial court to base its decision on the considerations set forth in Tenn essee Code Annota ted section 40-3 5-103. These considerations -4- which militate against alternative s entenc ing includ e: the nee d to prote ct society by restrain ing a d efend ant ha ving a lo ng his tory of cr imina l conduct, whether confinement is particularly appropriate to effectively deter others likely to c omm it a similar offen se, the ne ed to avoid depreciating the seriousness of the offense, and the ne ed to o rder co nfinem ent in cases in which less restrictive measures have often or re cently bee n unsu ccessfu lly applied to th e defen dant. Tenn. Code Ann. § 4 0-35-10 3(1)(A) - (C ).

In the case sub judice, the trial court found that the Defendant did not meet the appropriate criteria to be eligible for alternative sentencing. The Defendant has an extens ive crim inal rec ord da ting ba ck to 1 986. S he ha s bee n prev iously convicted more than ten times for shoplifting. The Defendant was on bond awaiting trial when she committed four of the five current charges, and furthermore, she wa s on pro bation for p ossess ion of cocaine when she committed all of the present offenses. The D efend ant ha s app arently failed a t all past efforts of reh abilitation. Because of these facts, the trial court reasoned that the Defendant has a total disregard for the laws and morals of soc iety. The court further found that granting alternative sentencing would depreciate the seriousness of the crime. This court has held that wh ere a defend ant’s history indicates a clear disregard for the laws and morals of society and a failure of past efforts to reha bilitate, th e trial judge does not abuse his discretion in denying probation. State v. Chrisman, 885 S.W .2d 834 , 840 (T enn. C rim. App . 1994).

The Defenda nt argues that she is an eligible can didate for C omm unity Corrections because she meets the minimum require men ts outlin ed in Tennessee Code Annotated section 40-36-106. The Community Corrections Act -5- allows certain eligible offenders to participate in community based alternatives to incarceration, however, a defendant must first be a suitable candidate for alternative sentencing. Tenn. Code Ann. §§ 40-36-103 and 40-35-104(9).

Therefore, since the court found the Defen dant to be ineligible for altern ative sentencing because of the factors discussed above, this precludes her from participatin g in the C omm unity Cor rections p rogram .

Based upon the evidence presented at the sentencing hearing, the presen tence re port, the pr inciples of s entenc ing set forth in Tenn . Code Ann. § 40-35-102, -103, -104, the arguments made by counse l, the nature of the offense, and the Defend ant’s potential for rehab ilitation, we find that the trial court did not err in denying the Defendant alternative sentencing. This issue is without merit.

We affirm the ju dgme nts of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ DAVID G. HAYES, Judge

___________________________________ JERRY L. SMITH, Judge

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