IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON FILED MARCH SESSION , 1999 June 25, 1999 Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9804-CR-00100 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON. BERNIE WEINMAN, JUDGE WILL IE L. W ALES, ) ) Appe llant. ) (BURGLARY OF A BUILDING)

FOR THE APPELLANT: FOR THE APPELLEE: CRAIG V. MO RTO N, II JOHN KNOX WALKUP Jefferson, Suite 725 Attorney General & Reporter Memphis, TN 38103 GEORGIA BLYTHE FELNER Assistant Attorney General 2nd Floor, Cordell Hull Building Fifth Avenue North Nashville, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral JOHN MARSHALL Assistant District Attorney General Criminal Justice Center, Suite 301 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Defendant, Willie L. Wales, appeals as of right following his sentencing in the Shelby County Criminal Court. Defen dant pled gu ilty to a charge of burglary of a building, a Class D felony, in violation of Tennessee Code Annotated section 39- 14-402. Pursuant to the terms of the plea agreement, Defendant was to receive a three (3) yea r sente nce w ith the tria l court to determ ine the man ner of s ervice o f his sentence. The trial court denie d altern ative se ntenc ing an d the D efend ant ap peals on this ba sis. W e affirm the judgm ent of the tria l 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 de termina tions ma de by the trial court are correct. Tenn. Code Ann. § 40-35 -401(d). This p resum ption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing princip les an d all relevant facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. Code Ann. § 40-35-1 02, -103 , and -21 0; see State v. S mith, 735 S.W.2d 859, 863 (Ten n. Crim. App . 1987).

-2- If our review reflects tha t the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and made findings of fact adequately supported by the record, the n we m ay not m odify the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher, S.W .2d 785 , 789 (T enn. C rim. App . 1991).

A defen dant w ho “is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorab le candidate for a lternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation, shall be given first priority regarding sentences involving incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to eight (8) years or less who is not an offender for who m inc arcera tion is a priority is presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption. However, the act does not provide that all offenders who meet the criteria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and circu mstan ces pre sented in each c ase. See State v. Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).

Additionally, the principles of sentencing reflect that the sentence should be no greater than that deserved for the offense committed and should be the least severe measure necessa ry to ach ieve the purpo ses fo r which the se ntenc e is imposed. Tenn . Code Ann. § 4 0-35-10 3(3) - (4). The court should also consider the -3- potential for rehab ilitation o r treatm ent of th e defe ndan t in determining the sentence alternative. T enn. C ode An n. § 40-3 5-103(5 ).

At the sentencing hearing, Defendant testified regarding the circumstances of the offens e. On May 1 9, 199 7, his car stalled and he went into someone’s garage to retrieve a pair of pliers. Defendant admitte d that he knew he should n ot have entered that person’s garage. Defendant stated he had twelve (12) prior convictions, including: burglary, occurring once on May 22, 1994 and again on August 12, 1993; theft, two (2) separate convictions on January 9, 1993; driving on a suspended/revoked license on January 2, 1997 and October 20, 1996, and various drug offenses. Admittedly, he was on probation when he committed some of these offenses. He conceded during the hearing that he had an “unsuccessful rehabilitative history,” but argues that does not tota lly negate the m itigating factors and his e ligibility for Com munity C orrection s.

The trial court denied any form of alternative sentencing based upon the Defe ndan t’s lack of candor and his prior record. In sentencing the Defendant, the trial court stated: Mr. Wa les, the only reason I was interested in the age of your bro thers and sisters was because I wanted to know if you were telling the truth.

We ’re just going back to hon esty. M r. W ales, yo u’ve be en a h orrible citizen of this country. All the wa y from Texa s to Tenne ssee. You’ve caused a great deal of aggravation and proble ms w ith our w hole system , with our wh ole coun try. . . .

I don’t know if you w ere on strict supe rvision or not, Mr. Wales, because I see you we re on proba tion for five years; and it mu st have worked really well because three years later you got another two year sentence. . . . [T]his com munity and this country and the people ha ve a right to be protected.

I find it interesting -- and I don’t know , I haven’t checked -- but I noticed you said that you we re there because your car had stopped. I find that -4- really interesting because four months before that I see you were convicted of driving on a revoke d license. Now , maybe the y were reinstated in that four months. It seems to me if that’s not the case, you shou ldn’t have been driving at all. Your car couldn ’t have stalled on you becau se you w ouldn’t ha ve been driving it.

In summation, the trial court found that the Defendant was “a classic case of someone that society need s to be protected from,” and denied his petition for alternative s entenc ing.

W hile the trial court did not specify that it was relying upon factor (1)(A) of Tennessee Code Annotated section 40-35-103, it is apparent from his findings that he relied upo n the fact that co nfinement was necessary to protect society by restraining a defen dant with a long histo ry of crimina l conduc t. The presentence report adequately reflects the lengthy criminal history of the Defendant. Included within the report were the following charges: Evading Arrest 5/19/97 DWLSCR 1/2/97 Operate MV w/Expired Tags 1/2/97 Failure to Appear 12/28/96 DWLSCR 10/20/96 Burglary 5/22/94 Burglary 8/12/93 Theft of Property under $500 1/9/93 Theft of Property over $500 (3 cts) 1/9/93 PCS 1/9/93 Theft of Property under $500 8/20/92 Theft of Property over $500 6/22/92 DWLSCR 6/22/92 Burglary of Home 1/24/89 Burglary of Home 8/15/84 Delivery of Cont. Substance 8/15/84 Marijuana Possession 3/16/82 Marijuana Possession 12/20/79 Burg larizing Vehic le 10/1/76 As acknowledged by the Defendant, his rehabilitative history following these offenses ha s been “un successfu l.”

-5- W hile the Community Corrections Act allows certain elig ible offend ers to participate in community-based alternatives to incarceration, a defendant must first be a suitable candida te for alternative sentencing. Tenn. Code Ann. § 40-36-103.

W hile Defendant does meet the eligibility requirements of Tennessee Code Annotated section 40-36-106(a), the Act does not pro vide tha t the offe nder is autom atically entitled to su ch relief. State v. Grand berry, 803 S.W.2d 706, 707 (Tenn. Crim. A pp. 199 0); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). The potential or lack of potential for rehabilitation was approp riately considered by the trial court in determining that Defendant should not be granted an alternative s entenc e. Tenn . Code Ann. § 4 0-35-10 3(5).

In addition, the trial court considered Defendant’s lack of candor with the court as proba tive of his prosp ect for re habilita tion. De fenda nt’s lack of truthfu lness at his sentencing hearing was g erma ne to h is rehabilitation potential. State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996) (citations omitted). While Defendant argues that the trial court failed to consider any relevant mitigating factors under Tennessee Code Annotated section 40-35-113, our review fails to find any w hich are applic able and capable of overshad owing his ow n prior fa ilures to confo rm his conduct to the law. Where the defendant’s history indicates a clear disregard for the law and m orals of so ciety and a failure of pa st efforts to rehabilitate, the trial court did not abuse its discretion in denying an alterna tive senten ce. State v. Chrisman, S.W .2d 834, 840 (Tenn. Crim . App. 1994 ).

We affirm the ju dgme nt of the trial co urt.

-6- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding Judge

___________________________________ JOSEPH M. TIPTON, Judge

-7-