IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1996 SESSION
FILED
July 25, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Appellee, ) No. 02C01-9512-CR-00363
)
) Shelby County
v. )
) Honorable Arthur T. Bennett, Judge
)
DAVID LEWIS, ) (Denial of Probation)
)
Appellant. )
For the Appellant: For the Appellee:
Marvin E. Ballin Charles W. Burson
Mark A. Mesler Attorney General of Tennessee
200 Jefferson Avenue and
Suite 1250 Cyril V. Fraser
Memphis, TN 38103 Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
John W. Pierotti, Jr.
District Attorney General
and
Jennifer Nichols
Assistant District Attorney General
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, David Lewis, appeals as of right from the trial court’s order
denying him probation. The defendant was convicted upon guilty pleas in the Shelby
County Criminal Court of attempted theft over one thousand dollars, a Class E felony,
two counts of theft over five hundred dollars, a Class E felony, two counts of theft under
five hundred dollars, a Class A misdemeanor, and unlawfully carrying a weapon, a
Class C misdemeanor. Pursuant to a plea agreement, he was sentenced as a Range I,
standard offender to an effective sentence of two years in the Memphis County
Correctional Facility with the court to determine the manner of service. The sole issue
for our review is whether the trial court erred by denying the defendant’s request for
probation.
The record reflects that the defendant offered his services as a repairman
to each of the victims of his crimes between January 30, and March 5, 1994. In one
instance, the defendant was blamed for causing the damage that needed repair. In
another, he was accused of taking a box that contained a thousand dollars from a
house he had entered to give an estimate on some work that needed done. In the
other theft cases, the defendant was charged with accepting money for his services
without ever completing them. The defendant was charged with unlawfully carrying a
weapon because of a pistol he had in his car at the time of his arrest.
At the hearing on his motion for a suspended sentence, the defendant
denied any wrongdoing. However, he admitted that he did not complete all the work he
had agreed to do and said that he felt like he owed money back to some of the victims.
In denying probation, the court noted the defendant’s criminal history and that all of the
victims were elderly and concluded that confinement was necessary to deter others and
to avoid depreciating the seriousness of the offenses.
2
Appellate review of sentencing is de novo on the record with a
presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-401(d)
and -402(d). As the Sentencing Commission Comments to these sections note, the
burden is now on the appealing party to show that the sentencing is improper. This
means that if the trial court follows the statutory sentencing procedure, makes findings
of fact that are adequately supported in the record, and gives due consideration and
proper application of the factors and principles that are relevant to sentencing under the
1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Although probation must be automatically considered, the defendant is
not entitled to probation as a matter of law. See T.C.A. § 40-35-303(b); Sentencing
Commission Comments to T.C.A. § 40-35-303; Fletcher, 805 S.W.2d at 787. However,
as the defendant does not meet the description of one who should be given first priority
regarding a sentence involving incarceration under T.C.A. § 40-30-102(5), and has
been convicted of Class E felonies as a standard offender, he is presumed to be a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary. T.C.A. § 40-35-102(6).
In this respect, the presumption in favor of alternative sentencing may be
rebutted if any of the following factors outweigh the defendant’s rehabilitative
capabilities: (1) “confinement is necessary to protect society by restraining the
defendant who has a long history of criminal conduct,” (2) “confinement is necessary to
avoid depreciating the seriousness of the offense or confinement is particularly suited to
provide an effective deterrence to others likely to commit similar offenses,” or (3)
“measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant.” T.C.A. § 40-35-103(1); see also State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991); Fletcher, 805 S.W.2d at 787-88.
3
In this case, the record supports the trial court’s decision to deny
probation. By committing five theft-related offenses over a two-month period, the
defendant demonstrated a sustained intent to violate the law. See State v. Byrd, 861
S.W.2d 377, 380 (Tenn. Crim. App. 1993). Throughout the sentencing hearing, the
defendant denied any wrongdoing, and the trial court questioned his truthfulness.1 The
defendant’s untruthfulness and unwillingness to accept responsibility for his actions
bode poorly for his rehabilitation. See U.S. v. Grayson, 438 U.S. 41, 52, 98 S. Ct.
2610, 2616 (1978); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); Byrd, 861
S.W.2d at 380. In our view, the defendant’s lack of candor coupled with the
circumstances of the offenses justify the denial of probation.
Accordingly, the judgment of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Joe B. Jones, Presiding Judge
Jerry L. Smith, Judge
1
W e note that the guilty plea hearing is not part of the record on appeal. Often, evidence
of the circumstances surrounding the offenses and the defendant’s view of his culpability are presented at
that hearing. Thus, potentially relevant trial court records are not before us when we are asked to review
the significance of the defendant’s claims of innocence and the trial court’s view of those claims at the
sentencing hearing.
4