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State v. Sharon Marie Shell4/14/1999
y an alternative sentence on the ground of deterrence, there must be some evidence contained in the record that the sentence imposed will have a deterrent effect within the jurisdiction. State v. Bonestel, 871 S.W.2d 163, 170 (Tenn. Crim. App. 1993). This Court has repeatedly held that the finding there will be a deterrent effect within the jurisdiction cannot be merely conclusory but must be supported by proof. State v. Ashby, 823 S.W.2d at 170.
In support of deterrence in domestic violence offenses in Hamilton County, the state offered proof from the Director of the Domestic Violence Unit. It was established that thirty-five percent of all homicides committed in Hamilton County from 1994 to 1996 were a result of domestic violence. The trial court commented that much emphasis is placed on drinking and driving, but little thought is given to drinking and guns, which was the case here. Guns and drinking play a substantial part in domestic violence offenses. We believe it was proper for the trial court to consider such factors in determining whether deterrence was applicable. There is no merit to this issue.
Part B
Full Probation
The defendant contends that she is entitled to full probation. Therefore, the defendant has the burden of establishing she is suitable for full probation, even if the defendant is entitled to the statutory presumption of an alternative sentence. Tenn. Code Ann. § 40-35-303(b); State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.), per. app. denied (Tenn. 1995). In doing so, the defendant must demonstrate that probation will "subserve the ends of Justice and the best interests of both the public and the defendant." State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.), per. app. denied (Tenn. 1990) (quoting Hooper v. State, 201 Tenn. 156, 162, 297 S.W.2d 78, 81 (1956)).
When determining suitability for probation, the sentencing court considers the following factors: (1) the nature and circumstances of the criminal conduct involved; (2) the defendant's potential or lack of potential for rehabilitation, including the risk that during the period of probation, the defendant will commit another crime; (3) whether the sentence of full probation would unduly depreciate the seriousness of the offense; and (4) whether a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes. Tenn. Code Ann. §§ 40-35-210(b)(4), -103(5), 103(1)(B) (1990); Bingham, 910 S.W.2d at 456.
In considering probation, the trial court may inquire into the facts and circumstances surrounding the criminal conduct. Denial of probation may be based solely upon the circumstances of the offense when they outweigh all other factors favoring probation. State v. Fletcher, 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). The comments made by the trial court in denying an alternative sentence are applicable to the request for full probation. We concur in the trial court's findings. Upon de novo review and in accord with a presumption of correctness, we are unable to conclude that the trial court erred in determining the defendant had not met her burden of establishing suitability for full probation.
The judgment of the trial court is affirmed.
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
DAVID H. WELLES, JUDGE
JAMES CURWOOD WITT, JR., JUDGE
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