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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs October 27, 2004 STATE OF TENNESSEE v. AARON T. BINKLEY
Direct Appeal from the Criminal Court for Knox County No. 78096 Mary Beth Leibowitz, Judge

No. E2004-00739-CCA-R3-CD - Filed January 27, 2005

The defendant, Aaron T. Binkley, pled guilty to forgery, a Class D felony, and was sentenced as a Range One standard offender to two years in the Department of Correction. On appeal, the defendant argues that the trial court erred in denying him alternative sentencing. Upon review, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J.C. MCLIN , J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E. GLENN , JJ., joined. J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Aaron T. Binkley. Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Patti Cristil, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS The defendant pled guilty to the criminal offense of forgery, a Class D felony, in exchange for an agreed two-year sentence in the Department of Correction as a Range One standard offender. As part of the plea agreement, the defendant was allowed to apply for judicial diversion. At the sentencing hearing, however, the defense counsel withdrew the defendant's application for judicial diversion stating that "Mr. Binkley [was] not eligible for diversion due to the [criminal] charges in McMinn County." As a substitute for judicial diversion, defense counsel requested probation or enhanced probation, arguing that the defendant was an appropriate candidate for such alternative sentencing. However, during the course of the discussion, the court inquired as to the disparity between the defendant's denial of certain prior criminal convictions and the defendant's convictions listed in the presentence report. Attempting to clear up the confusion, the trial court asked the

defendant if certain convictions which occurred in 1990, 1994, and 1995 were his. The defendant responded, "[T]hat's not me, ma'am. I hadn't even had a speeding [ticket] in 13 years." Upon further inquiry, the defendant acknowledged the felony convictions reported in Sumner and McMinn Counties, but denied four convictions reported in Rhea County. Although the court was unable to verify the defendant's veracity regarding his denial of the Rhea County convictions, it was established that the defendant had a criminal history including a prior conviction for the sale of cocaine. At the conclusion of the hearing, the court found that the defendant had not been truthful about his past criminal history, when reporting to his probation officer, while applying for judicial diversion, and when discussing his criminal history with the court. In addition, the court found that the defendant failed to report to court on two separate occasions, which resulted in the defendant being arrested and taken into custody. Consequently, the court concluded "that with [the defendant's] history and the charges he has . . . he is not eligible for probation or for enhanced probation," denied his request for alternative sentencing, and ordered the defendant to begin serving his two-year sentence in confinement. ANALYSIS The defendant argues that the trial court erroneously determined that he was not entitled to alternative sentencing and contends that the court should have found otherwise. This Court's review of a challenged sentence is a de novo review of the record with a presumption that the trial court's determinations are correct. Tenn. Code Ann.

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