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State v. Pewitt6/14/2005
of both the public and the defendant. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The Defendant bears the burden of establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b); Ashby, 823 S.W.2d at 169. The presumption in favor of alternative sentencing may be overcome by facts contained in the presentence report, evidence presented by the State, the testimony of the accused or a defense witness, or any other source, provided it is made part of the record. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). Sentences involving confinement should be based upon the following considerations:
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) 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
(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103 (2003).
In the case under submission, the record evinces that the trial court considered these factors when it sentenced the Defendant. In denying alternative sentencing, the trial court explained:
I find in this case that confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct, furthermore, measures less restrictive than confinement have frequently or recently been applied, and I'm not sure how recent that it was that [the Defendant] violated probation, but [the Defendant has] violated probation in the past, but the main reason that [the Defendant] should serve sentence in this case is because [he has] been given opportunity after opportunity. continues to commit crimes, smoking marijuana yesterday and driving was a crime, in and of itself . . . .
I just have no assurance, based upon the evidence that is before me, that [the Defendant] will be successful on probation of any type. So therefore, all of that overcomes your presumption of favorableness for alternative sentencing, and it's just time that [the Defendant] serve the sentence that's been imposed.
The evidence does not preponderate against the trial court's finding. The record reflects that the Defendant has a long history of criminal activity including almost a dozen prior misdemeanor convictions. The record also shows that the Defendant has violated his probation on at least one occasion. The trial court concluded that, therefore, there was no evidence that the Defendant would be successful at a form of alternative sentencing. Further, the trial court determined that the Defendant continued to participate in criminal conduct, and the Defendant admitted at the sentencing hearing that he had smoked marijuana the day prior to the sentencing hearing. Therefore, we conclude that the evidence does not preponderate against the trial court's determination as to the manner of service of the Defendant's sentence. This issue is without merit.
III. Conclusion
In accordance with the foregoing reasoning and authorities, we affirm the Defendant's sentence.
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