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State v. Dunn12/27/1999
y date. Thus, as did the court in Bradshaw, we set the length of split confinement at six months.
The defendant has also assigned, as error, the fact that the trial court did not utilize alternative sentencing in this matter. However, since the defendant was convicted of statutory rape, a crime against the person, he was not eligible for placement in a community corrections program. Tenn. Code Ann. §§ 40-36-106(a)(2), 39-13-506.
The defendant has argued, as well, that he should have been granted probation for his entire sentence, rather than having split confinement imposed. The burden was on the defendant to establish that he was a suitable candidate for probation. Tenn. Code. Ann. § 40-35-303(b). To meet this burden, he must show that probation will "subserve the ends of justice and the best interest of both the public and the defendant." State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). According to Bingham, the sentencing court should utilize the following considerations in assessing a defendant's suitability for probation:
(1) "the nature and [circumstances] of the criminal conduct involved," Tenn. Code Ann. § 40-35-210(b)(4) (1990 Repl.);
(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, Tenn. Code Ann. § 40-35-103(5) (1990 Repl.);
(3) whether a sentence of full probation would unduly depreciate the seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B) (1990 Repl.); and
(4) whether a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes, Tenn. Code Ann. § 40-35-103(1)(B) (1990 Repl.). 910 S.W.2d at 456.
The trial court may deny probation when the circumstances of the offense are "of such a nature to outweigh all other factors which might favor probation." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the case of this defendant, in addition to the approximate thirty-four-year age difference between the defendant and the victim, he persisted in having contact with the victim, sending cards and letters to her. These contacts with the victim continued even after the defendant was charged with three counts of statutory rape. In view of this, we conclude that the defendant has failed to carry his burden of showing that he is entitled to total probation, and affirm, as modified, the trial court's ordering that a portion of his sentence be served in confinement.
CONCLUSION
We affirm the trial court's sentencing the defendant to two years in each count, but modify the judgment of the trial court to reflect that the sentences be served concurrently and that the period of actual confinement be six months. This matter is remanded to the trial court for entry of a judgment in accord with this opinion.
ALAN E. GLENN, JUDGE
CONCUR:
JOSEPH M. TIPTON, JUDGE
JOHN EVERETT WILLIAMS, JUDGE
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