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State v. Utley9/3/1999
The defendant, Jeffery Russell Utley, appeals from his sentences imposed for arson and theft in the Hardin County Circuit Court. See Tenn. Code Ann. §§ 39-14-301(a), -14-103 (1997). The trial court imposed concurrent three-year sentences in the Tennessee Department of Correction. In this direct appeal, the defendant challenges the manner of service of his sentences. After a review of the record, the briefs of the parties, and the applicable law, we affirm the trial court.
The facts of this case are not described in detail in the record. On October 14, 1998, the defendant pleaded guilty to arson and theft. The guilty plea for arson arose out of a May 29, 1998 incident in which the defendant set fire to an apartment which caused some damage. The theft offense occurred on June 7, 1998, when the defendant and his co-defendant stole a Nissan pickup truck valued over a thousand dollars ($1000).
At the time of sentencing, the 23-year old defendant had a sparse employment history. He had been married for a few months and had two step-children. He dropped out of high school, but he later obtained his GED. The defendant has previous convictions for assault, aggravated assault, theft, possession and distribution of intoxicating liquor, and DUI.
The defendant contends he should have been granted some form of alternative sentencing. When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review of the record with a presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). "The burden of showing that the sentence is improper is upon the appellant." Id. In the event the record fails 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 factors and its findings of fact are adequately supported by the record, this court must affirm the sentence, "even if we would have preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In making its sentencing determination, the trial court, at the Conclusion of the sentencing hearing, determines the range of sentence and then determines the specific sentence and the propriety of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the potential 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 court's sentencing determination is entitled to the presumption of correctness because the record reflects that it considered the relevant sentencing principles.
A defendant "who is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to contrary." Tenn. Code Ann. § 40-35-102(6) (1
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