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Ӏz 0l ((3$ !      0  HU: },  AZ"Arial Regular  XXXXXX   Ad FILEDXX  August25,1998CecilW.CrowsonAppellateCourtClerkdAM R 0D (#$  0  HU: ,cAZ"Arial RegularHU:,rAZ"Arial Regular+ BV dA D3s$$$$'dxdR 0D(3$ !  ] AO-C<< C9Level 1Level 2Level 3Level 4Level 5R 0D($$   1  = D/C' dxd+ BrP Pd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4Q3.5.1'3.5.1, 1996 Corel Corporation Limited,Q3.5.1Created with WordPerfect 3.5.1.uC[0Corel WordPerfectxHH(FG(HH(d'hdYIpEh2PSetBPJobNStylZwp60versWDatSTR PtPt YEYE (u ~T 7/ (|$ |+  YE YE JYE bYE YE YE YE /YE {YE YE YE YE pYE8 YE< :YEH 3YEP YET YE\$ !YE`* PYEd- YEh YEl LYEt $YE| zYE YE YC YE#YB UYD$k{WP}10{WP}12{WP}11WP 6.0 caption{WP}16{WP}01"H~.' '" {WP}10 <<KK ..,,..,, Times۶   HH~Hз~H~6з(d(ٷ   ҷ    Helvetica(d(߷A ~jl.'$' {WP}10 <<KK  Times  Helvetica $Y@Y@Y@FILED$ 0$' '0F$2August 25, 19982@F@N Cecil W. Crowson$N\' '$Appellate Court ClerkY@Y@Y@A       0' '0 $IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE0' '0ܶ*ܶ0$$$0Ы$$$ AT NASHVILLE*8ܶ$8F' '$ܶ?$$$$?Ы $ JULY 1998 SESSION0FTFF' '0ܶTbܶbpܶ$  p~' '$ܶ$+$$+ 0  ~~~' '0ܶЫSTATE OF TENNESSEE,) 0  ' '0ܶ$Ы$) C.C.A. No.    01C01   ٖ9708CC  00357Appellee,`)  ܶ$) Williamson County ܶV. )ܶ$) Honorable Henry Denmark Bell, Judge$' '$ܶ÷   UTHER    CHRISTIAN,8) 0' '0ܶ$) (Sentencing Probation Denial)Appellant.) ܶ$) ܶ ܶ&ܶ&4ܶ4Bܶ$ʀЫFOR THE APPELLANT:KFOR THE APPELLEE:BPܶP^ܶJohn H. Henderson`John Knox Walkup^lܶDistrict Public DefenderJAttorney General & Reporter lzܶ407 C Main StreetzܶP.O. Box 68Elizabeth B.    Marney   ܶFranklin, TN 370650068BAssistant Attorney Generalܶʀ425 Fifth Avenue NorthܶʀNashville, TN 372430493 ܶʀ !ܶʀJoseph D.    Baugh   !"ܶʀDistrict Attorney General"#ܶ#$ܶʀJohn    Barringer   $%ܶʀAssistant District Attorney General%&ܶʀP.O. Box 937&'"ܶʀFranklin, TN 370650937'("0ܶ()0>ܶ)*>Lܶ*+LZܶ+,Zhܶ,-hvܶJ-.v vv.. HJܶOPINION FILED: ___________________/ܶ/ܶ$0' '$ܶ    ͷAFFIRMED01' '0ܶ    ͷ02*' '0ܶ    ͷPAUL G. SUMMERS,038' '0ܶJudge4ܶ5ܶ$6' '$ζ  Times ͷ÷   Helvetica ͷ ʀʀ ͷٷ  з   ͪʀʀ    ͫ  Times      Helvetica  ͷ0 7p' '0ζ 8:ζ 9:Uζ$ :Up' '$ζ HHHH ͷ HHHH ͷ   ͪ    HHHH  HHHH ͫ ͷA 7?XXdXXd7A   Times Э  O P I N I O N 0 ;pp' '0ζ<ܶ  ͷ !ʀ$ʀ!  ͪ!ʀ$ʀ!Ы ͷ$On January 3, 1997, the appellant,   Helvetica    Uther    Christian, pled guilty topossession of cocaine over .5 grams with intent to sell or deliver, which is aClass B felony. Following a sentencing hearing on June 27, 1997, the trial courtfined the appellant $2,000 and sentenced him to serve eight years in theTennessee Department of Correction.A-ܶB-Hܶ$The appellants sole issue for our review is whether the trial court erred infailing to order an alternative sentence. We affirm.DH~ܶE~ܶ$The appellant argues that the trial court erred by denying him analternative sentence. In his brief, the appellant admits that he has eight priormisdemeanor convictions; one prior felony conviction in 1979 for simplerobbery for which he received a threeyear suspended sentence; a pending6 VI H6charge for failure to appear; and a pending charge for aggravated robbery,which he denies. The appellants argument essentially consists of his assertionthat he should not be ordered to serve his sentence in confinement because heis addicted to crack cocaine and needs drug treatment. The appellant testifiedat the sentencing hearing that although he had been in a veterans hospital inthe last five or six years, he did not receive treatment for his drug problem. Hecontends that he was in the mental health department at the hospital andreceived treatment for depression. QܶRܶ$The state contends that the trial court properly denied alternativesentencing. It asserts that the appellant, by pleading guilty to a Class B felony,is not entitled to the statutory presumption that he is a suitable candidate foralternative sentencing. In fact, the state, in its brief, contends that theappellants criminal history indicates  a clear disregard for the laws of societyand evinces a failure of past    effort[s   ] at rehabilitation. It notes that in addition tothe appellants previous convictions, he had pending charges for failure toappear and for aggravated robbery at the time of the sentencing hearing. Furthermore, the state argues that the appellant  has previously benefitted fromlenient sentencing but has continued to violate the law. Specifically, it notesthat the appellants conviction in the case sub judice occurred just ten days afterhis conviction for criminal trespass in February 1996. Finally, the state insiststhat past efforts to rehabilitate the appellant have failed because he has been ina hospital for drug rehabilitation several times during the last five or six years. J` gR` HJܶaܶ   Helvetica ͷ   Helvetica     Helvetica    Helvetica  ͷ$When an appellant challenges the length, range, or manner of service ofa sentence, this Court conducts a de novo review with a presumption that thedeterminations made by the trial court are correct. Tenn. Code Ann.  4035  401(d) (1997).    Helvetica    Helvetica However, this presumption is conditioned on an affirmativeindication in the record that the trial court considered the sentencing principlesand all relevant facts and    circumstances. State    v.    Ashby   , 823    S.W.2d    166, 169(Tenn. 1991). hjܶijܶ$The appellant bears the burden of showing that the sentence wasimproper. Id. In determining whether the appellant has met this burden, thisCourt must consider (a) the evidence adduced at trial and the sentencinghearing; (b) the presentence report; (c) the principles of sentencing; (d) thearguments of counsel; (e) the nature and characteristics of the offense; and (f)the appellants potential or lack of potential for rehabilitation or treatment. Tenn.Code Ann.  4035103(5), 210(b) (1997).p Bܶ   Helvetica ͷ   Helvetica     Helvetica    Helvetica  ͷq B ]ܶ$The first step is to determine whether the appellant is entitled to thestatutory presumption that he is a favorable candidate for alternativesentencing. For a defendant to be entitled to this presumption, three criteriamust be met under Tennessee Code Annotated  4035102(5) and 102(6)(1997): the defendant must be an especially mitigated or standard offender; heor she must be convicted of a Class C, D, or E felony; and he or she must not fall6 Rw ] H6within the parameters of Tennessee Code Annotated  4035102(5), whichstates that a defendant cannot have a criminal history that shows a  cleardisregard for the laws and morals of society or  failure of past efforts atrehabilitation. The appellant pled guilty to a Class B felony, has a prior criminalhistory, and has been on probation in the past. Thus, based upon theforegoing, he is not entitled to the statutory presumption as a suitable candidatefor alternative sentencing. ~ ] ܶ ܶ$ Tennessee Code Annotated  4035103 (1997) provides the followingguidance regarding sentencing:$ ' '$ܶ   ͪ    ͫ ͷ$(1) Sentences involving confinement should be based on the following0  + ' '0ܶ$considerations: + 9ܶ$ (A) Confinement is necessary to protect society by restraining 9 Gܶ$ a defendant who has a long history of criminal conduct; G Uܶ$ (B) Confinement is necessary to avoid depreciating the U cܶ$ seriousness of the offense or confinement is particularly suited to  c qܶ$ provide an effective deterrence to others likely to commit similar  q ܶ$ offenses; or   ܶ$ (C) Measures less restrictive than confinement have frequently  ܶ$ or recently been applied unsuccessfully to the defendant.$  ' '$ܶ   ͪ    ͫ ͷ0  ' '0ܶ   Helvetica ͷ   Helvetica     Helvetica    Helvetica  ͷFurthermore, Tennessee Code Annotated  4035103(5) provides that the potential or lack of potential for the rehabilitation or treatment of the defendantshould be considered in determining the sentence alternative or length of aterm to be imposed.   Helvetica    Helvetica  0ܶ 0 Kܶ   Helvetica ͷ   Helvetica     Helvetica    Helvetica  ͷ$ The appellant, not the state, has the burden of establishing suitability forfull probation. Tenn. Code Ann.  4035303(b) (1997). To meet this burden,6 fW K H6the appellant must illustrate how probation will  subserve the ends of justiceand the best interest of both the public and the defendant. State v. Bingham,910    S.W.2d    448, 456 (Tenn.    Crim   .    App   . 1995) (quoting State v. Dykes, 803   S.W.2d    250, 259 (Tenn.    Crim   .    App   . 1990)).   Helvetica    Helvetica  K ܶ ܶ   Helvetica     Helvetica  ͷ$In its decision, the trial court found that the three enhancement factorsrelied upon by the state outweighed the six mitigating factors relied upon by thedefense. With numerous misdemeanor convictions, one prior felony conviction,and two pending charges, one for aggravated robbery and one for failure toappear, at the time of the sentencing hearing for the instant offense, theappellant has had every opportunity to prove that he can function in societywithout being a threat to others. However, he has allowed his drug addiction tocontrol his behavior; and the appellant, who has    suffered gunshot    wounds, isnot only a threat to others but also to himself.    Furthermore,    at the sentencinghearing, the appellant admitted that he had violated his probation once or twicein the past. He has failed to carry the burden of proving that an alternativesentence would be in his best interest or in the best interest of the public. \ܶ\wܶ$We affirm the trial courts judgment.wܶJ  HJܶ$' '$ܶ  з +$ʀ$ʀ+  ͪ+$ʀ$ʀ+    ͫ ͷ$ 6' '________________________ܶ   Helvetica     Helvetica  ͷ$ 6PAUL G. SUMMERS, Judgeܶܶܶ,ܶCONCUR:,:ܶ:Hܶ HVܶ Vdܶ_____________________________ drܶDAVID G. HAYES, Judge rܶ ܶܶܶܶ_____________________________ܶJERRY L. SMITH, Judgeܶ   Helvetica     Helvetica  ͷܶ  ͷ