### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A ugust 14, 2002
STATE OF TENN ESSEE v. DARR ELL W. SMITH
Direct Appeal from the Circuit Court for F ranklin County

No. 13594 J. Curtis Smith, Judge

No. M2002-00735-CCA-R3-CD - F iled March 19, 2003

The appellant, Darrell W. Smith, pled guilty in the Franklin County

Circuit Cou

rt to evading

arrest and operating a motor vehicle in violation of the Motor Vehicle Habitual Offend ers Act, both Class E felonie s. The pa

rties ag reed tha t the appe llant woul d be sentenced on each conviction to one yea

r and one day

with the se

ntencesto be served consecutively . The manner of service of the sentences
was to be determined by the trial court. Following a sentencing hearing, the trial court ordered the appellant to se rv e 1 20 da ys in the county jail, with the balance of the sentences to be served in the
commun ity

cor rection s progr

am. On ap

peal, the appella nt challe nges the period of confine ment. After r eviewing the rec ord and th

e partie s’ brief

s, we af firm the j udgmen

ts of the tr

ial cour t. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Ci rcuit Co urt are A ffirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined. Jerre M. Hood, Winchester, Tennessee, for the appellant, Da rrell W. Smith.

Paul G. Summers , Attorney Gene ral and Reporter; Christine M. La pps, Assist

ant Attor ney Genera l; J. Michael Taylor, District Attorney General ; and Steve n Blount, Assistant

District A

ttorney Genera l, for the appellee, State of Tennessee.
OPINION I. Fact ual Backgro

und According to the pre sentenc e repor t, the app ellant wa s declar ed to be a motor

vehicle habitual offender on July 11, 2000. On August 26, 2000, Patrolman Dway ne Marion of the Cowan City Police De

partmen t respond ed to a ca

ll conce rning a reckle ss d river on

Wate r Tank Road. Patrolman Marion attempted to stop the vehic le, but the driver, later ide

ntified a s the appe

llant, refused to stop. Eventually, the appellant aba ndo ned his vehicle and fled on foot. After a short chase, Patrolman Marion ap prehended the appellant. I n his affidavit of complaint, Patrolman Marion noted tha t the appe llant-2- had a strong odor of alcoholic beverag e on or about his person. [The appella nt] stated that he had been drink ing and t hat he did not have
a valid driver’s license. He stated that he did not stop be cause his lice nse was re voked. . . . [The appellant] refused to submit to an intoximeter

test.
The Franklin County Gra nd J ury in dicted the appell ant, cha rging him with fourth offense dr iv in g u nd er th e i nf

lu en ce , v io la ti ng th e i mp li ed co ns en t l aw , fel on y e vading arrest, evading arrest, reckle ss driving , violating the Motor

Vehicle Habitu al Offen ders Ac t, and re sisting a rrest. On May 11, 2001, the

appellant pled gu ilty to felony evading arrest a nd opera ting a mo tor vehic le in violation of the Motor Vehicle Habitual Offenders Act. Te nn. Code Ann. §§ 39-16-603(b) (1997), 55-10-616 (1998). The parties agree d that the appellant would be sentenced on each co nviction to
one year a nd one day, with the sente nces to be served consecutively for an effective sentence of two yearsand two days. Pursuant t o the plea agreement, the trial cour t determined the manner in which the sentences would be served. Following a sentencing hearing, the trial c ourt ordered the appellant to serve 120 days in the

county jail, with t

he balance of the

sentenc es to be se

rved in the community corrections pr og ra m. On ap pe al , t he ap pe ll an t c ha ll en ge s t he re qu ir em en t t ha t h e s er ve 12 0 d ays confine ment in the

county jail. II. Analysis When an appellant

challenges the length, rang e, or manner of service of a sente nce, this court conducts a de novo review with a presumption that the determinations made by the trial court are cor rect. Tenn. Cod

e Ann. § 40 -35-401( d) (1997) . Howeve r, this pre sumption is “conditioned upon the affirmat i ve showing in the record that the trial court consider ed the sentencing principles andall relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our r eview, this court must consider (1) the evidence, if any , received at trial and at the sent encing hearing; (2) the pr esentence report; (3) the principles of sente ncing and the argume nts of counsel relative to the sentencing alternatives; (4) the nature and characteristics of the offense s; (5) any mitig ating or enhancement factors; (6) any statements made by t

he appellant on his
own behalf; and (7) theappellant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40- 35-102 and -103 (1997), -210 (Supp. 2002). See also Ashby , 823 S.W.2d at 168. The burden o f showing that a sentence was improper is on the appellant. Tenn. Code Ann. § 40-35-401, Sentencing Commission Co mments.

Tennessee Code Anno tated section 40-35-102(5) provides tha t only “convicted felon s committing the most severe offenses, possessing criminal histories evincing a c lear disregard for the laws and morals of society , and evincing failure of past efforts at rehabilitation shall be given f irst priority regarding sentencing

involving incarceration.” A defenda nt who d oes n ot fall wit

hin this class of offenders and who is “an espe cially mitigate d or stand ard off ender c onvicted

of a Class C, D or E felony is pre sumed to be a favorable candidate for a lternative senten cing options.” Tenn. Code Ann. § 40-35-102(6). Furthermore, “[t]he trial court must presume that

a defendant sentenced to eight y ears or less and n ot an off

ender f or whom inc arcer

ation is a priorit

y is subject to

alternative sentencing an d that a s entence other than incarcera tion would result in successful rehabilitation.”-3-

Statev. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993) (citationomitted); see also Tenn. Code Ann. § 40-35-303(a) (Supp. 2002). However, the presumption of alternative sentencing may be rebutted by “e

vidence to the contrary .” Tenn. Code An n. § 40-35 -102(6) ; see also State v. Hooper , 29 S.W.3d 1, 5 (Tenn. 2000). Gu id an ce as to wh at co ns ti tu te s “ ev id en ce to th e c on tr ar y” is found in Tennessee Code Annotated section 40-35-103(1), which pr ovides for confinement when: (A) [c]o nfine ment i s neces sary to pr otect socie ty by restrai ning a defenda nt who has a long h

istory of crimin al conduct; (B) [c]onfinement is necessary to avoid de

precia ting the seriousness of the offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or (C) [m]easures less restrictive that confinement have frequent ly o r recent ly b een app lied unsuc cessful ly to the defe ndant.

In determining the manner in which the appellant would serve his sentence, the trial court considered the presentence repor t, the testimony

of defe nse witnesses, and the arguments of counsel. The presentence report revealed a lengthy

criminal history. I

n addition to being declared
a motor vehicle habitual offender, the appellant had three prior convictions for driving under the influence, two prio r convic tions for p ossession of mariju ana, two

prior co nvictions for publi c intoxication, one prior co nviction f or domest ic violen ce, one

prior co nviction f

or contr ibuting t o the delinquency

of a mi nor, o ne pri or con victi on for passi ng w orthles s checks , and sev eral tra ffic violations. Many of these off enses were committed while the appellant was on probation.

The trial court also considered the testimony of t he app ellant’s wife, aunt, and minister. The cumulative testimonyof these witnesse s, as well

as the ap pellant’ s own state

ment in the presentence report, revea led that after discoveringhis first w ife in a compro mising po sition with her own father, the a

ppellant started a busing d rugs and alcohol . Alleg edly , this substa nce abu se led to numerous alcohol-related convictions. However, the witnesses testified that since his arrest for the instant offenses, the appellant had stopped drinking and abusing drugs and had “turned his life over to the Lord.” All three witnesses agreed

that the a ppellant “had ch anged” and de served t o be sentenc ed to a co mmunity corrections sente

nce witho ut any confine ment.

Laura Prosse r, the p robation and parole officer who prepa red the appellant’s presentencereport, also testified on the appellant’s behalf. Prosser confirmed that the appe llant had notbeen ar

rested s ince com

mitting the instant offense s, but stated that the appellant had a poor history of pay ing chil d support a

nd previo us fines a nd court c osts. In sentencing the

appellant to a period of confinement, the trial court stated, I’m required to look at h

is entire history not just the last eight months
or so. . . . I don’t accept hi s explanation for a minute that all the terrible things th at he’s done in th is 21 a rrests and 13 convictions simply has to do with one, I’m

sure traumatic event. Every one, every adult, sometimes children have traumati c events th rough th eir lives , that’s not an excus e in the least. . . . If I look at his record it’s-4- aby smal.

. . . I

don’t think it would be appropriate that this young man simply walk away

on Community Corrections given this kind of record, and I’ve taken

consi deration of what these ladies have said, but he h ad to be responsible for what’s happened in the past and I can’t totally dismiss that because he appears to have turne d over a
new leaf. . . . He’ll serve 120 day s, [then] he’ll be released on Community

Correct ions.

On appeal, the app ell an t c ha ll en ge s t he re qu ir em en t t ha t h e s er ve 12 0 d ays confinement

in the county jail. Specifically , the appel lant cont ends that the tr

ial cour t failed t o consider the appellant’s voluntary rehabilitation. The appellant asserts that [t]he purpose for the new Sentencing Reform Ac t of 1989 wa s to reha bilitate

where p ossible a

nd for the courts to use alte rnative s t o incarceration

unless it was necessary

to pre ve nt a [depreciation] of the seriousness of

an offense or act as a deter rent to oth

ers tog ether wi

th the fact tha

t the def endant showed no potentia l for rehabilitation. [The appellant] contends that the [S]tate has not established any of these to the extent that it would require complete incarcera tio n without community correction and to the contrary the [appellant] had presented ample proof of rehabilitation.

We note that

the trial court did not sentence the appellant to “complete incarce ration without community

correction.” The

trial cou rt senten ced the a ppellant to sp lit confine ment, requiri ng the appe

llant to se rve 120 d ay s in the county jail and th

e remainder of the se ntences o n community

corrections. We no w conside r the pro priety of the pe riod of c onfineme

nt.

We agree with the appellant that one of the goals of the 1989 Sentencing Reform Act
was to “[e]ncourag [e] effec ti ve rehabilitation of . . . defendants, where re asonably fe asible, by promoting the use of alternative sentencing and c orrectional programs that elicit voluntary
c ooperation of defendants.” Tenn. Code Ann. § 40-35-102(3)( C). We also agree that, whe n ne ce ss ar y, trial courts may impose sentenc es invol ving confi nement to avoid depreciating the seriousness of the offense or to provide an effe ctive deterrent to others likely to commit a similar offense. Tenn. Code Ann. § 40-35-103(1)(B). However , in stating his argument, the appellant failed to include two additional situations in which confinement may be necessary , i.e., to protec t society by restraining a d

efenda nt who has a long h

istory of crimin al c onduct and when me asures l ess restrictive than confinement have been ap plied unsu ccessf

ully to the def

endant. Tenn. Code Ann. § 40-35-103(1)(A) and (C).

In the instant case, the trial court found confinement to be necessary to protec t society by restraining

a defendant who has a long history of criminal conduct. Tenn. CodeAnn. § 40-35- 103(1)(A). The trial court described the appellant’s criminal record as “aby smal,” co un ti ng tw en tyone arrests and thirteen convictions. The trial court stated, “I don’t think

it would be appropriate that this young ma

n simply walk away

on Co mm un it y Corrections given this kind of record.”-5-

Con sidering both the appellant’s prior criminal history and his attempt at rehabilitation, the tria l court determined that the approp riate se ntence w ould

be 120 days confine

ment, with the remainder of the se ntence t o be serv ed on comm

unity correc tions.

We also find confinement to be necessary because “[m]easures less restrictive than confinement

have frequently

or recently

been applied unsuccessfully to the [appellan t ].” Tenn. Code Ann. § 40-35-103(1)(C). As previously noted, the appellant committed numerousoffense s while
on proba tion for ot her cri mes. A ltho ugh we comme nd the app ellant fo

r his efforts to become a “new person,” we conclude that because of his lengthy criminal rec ord and because m ea sures le ss restrictive than confinement failed in the past, the trial court properly ordered the appellant to serve
a portion of his sentences in confinement. See State v. James M. Smith , No. M1999-00252-CCAR3-CD, 2000 Tenn. Crim. App. LEXI S 328 (Nashville, Apr. 20, 2000).

The appellant also argues that the trial court er red in senten cing the appellant for drivin g under the influence when the appellant did not plead guilty to that offense. However, the appellant misconstrues the trial court’s language. In response to the appellant’s r equest to serve the 120 days on “split confinement,”the trial court stated,

No, sir, . . . this man is [pleading guilty] to a felony that I could send him to the Department of Correction, at least he ought to ser ve t h e minimum 120 days, which he would get for multiple offense DUI , I think at a minimum. So I’ve

taken int o conside ration wh at these

fine people say [beca

use] my inclination was to probably g ive him more than that, but I think 120 days is appropria te if he’d had a 3rd

or 4th offense DUI the State law require s thathe serve at least 1 20 day s, so he’ll serve 120 day s here. The trial court did not impos e a sent ence fo r driv ing un der th e infl uence. Rathe r, thi s langu age indicates that the tr

ial cour t conside red the n umb e r of previous convictions for driving under the influenc e in dete

rmining the appr opriate period of confine ment. This argume

nt is withou

t merit.
III. Conclusion Based u pon the fo

regoin g, we a

ffirm the judgmen ts of the tr

ial cour t.

___________________________________ NORMA McGEE OGLE, JUDGE