1 The trial court also fined t

he defendant two hu

ndred fift

y dollars f

or the drug off

ense. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs S eptember 27, 2000
STATE OF TENNESSEE v. JAMES E. HARMAN, JR.

Appeal as of Right from the Criminal Court for Sullivan County

No. S42,557 R. Jerry Beck, Judge

No. E2000-00437-CCA-R3-CD March 21, 2001

In October of 1999, the defendant pled guilty to one count of theft over one -thous and do llars ($1,000.00) and one count of possession of less than .5 ounces of marijuana. His plea form indicated that he agreed to r

eceive concur

rent sentences o

f five and one-h

alf years as a Range I

I, multiple offender for the form er offense a nd eleven months and twenty-nine days for the latter. 1 Sub seq uen tly, the trial court conducted a hearing to determine the manner in which these sentences

were to be served. At the conclusion of such hearing, the trial court denied the defendant any form of alternative sen

tencin g, and it is this denial t hat the defenda

nt contests throug

h his appeal. However, after having reviewed the record and a

pplicable author

ities, we find this contention to be without merit and, therefore, affirm the trial court’s sentence.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OSEPH M. T IPTON , J., and J AMES C URWOOD W ITT , J R ., joined.

Terry L. Jordan, Blountville, Tennessee, for the a ppellant, James E. Harman, Jr.

Paul G. Summers, Attorney General & Reporter ; Pet er M . Co ughl in, Ass ist ant Dis tri ct A tto rney; Mike Flynn, District Attorney Genera l and Jim Goodwin, District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND On January 4, 1999, security guards a t the Bristol Regional Med i cal Center observed the defendant removing from the establishment various items having a total value of over one-thousand dollars ($1,000.00). The

articles belong

ed to th e hospital . Though the def endant claimed th

at a hospital emp loye e with who m he had maintaine d some contact for

over a month had g

iven him2 These include having lost an arm in a car accident; sufferingfrom Crohn’s disease, diabetes, hepatiti s C, and depression; endur

ing various r

econstructi

ve facial s

urgeries – al so from an automobile wreck; etc.

-2- permission to take these possessions, the defendant could not provide th

e person’s name n

or state where this individual worked within the hospital. No such person was ever located. However, 1.8 grams (less than .5 ounces) of marijuana were found and confiscated by the guards. The substance had fallen out of t

he defendant’s

pocket while he w

as removing his ha

nd therefrom. As above noted, the d

efendant pled g

uilty to the theft over one-thousand dollars ($1,000.00) and to possession of les s than .5 ounces of marijuana, rec

eiving the afor

ementi oned agreed upon sentences for both. No agreement existed, however, concerning the manner in which these sentences would be served. At the hea

rin g on this matter, the defendant attempted to prove himself an appropriate

candidate for alternative sentencing. To t his end, he stated tha

t he “took full responsibility

for what has happene d;” noted his variou s medical problems ; 2 indicated that following this arrest he had

completed two in-patient drug treatment programs and continued with out-patient

care around four times

a week through or

ganizations such a

s Narcotics Anony

mous; had the support of his wife and mother-in-law; etc. However, the hearing and pre-sentence report also divulg

ed less flattering information such as his criminal history; previous performance w hile on s ome type of release status like probation; and details castin g doubt on his

veracity. With these facts the trial court determi ned that “it would not be in the best interest of the public or the defendant to gran t Alternative Sentencing in this case.” Thr ough thisappeal the defendant avers that the denial of such constitutes error. STANDARD OF REVI EW “When reviewing sentencing issues ..., the appellate court shall conduct a de novo review on the record of such is sues. Such review shall be conducte

d with a presumption that the determinations made by

the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). "However, the presumption of cor

rectness which accompanies the

trial court's action is conditione d upon the affirmative showing in the record that the trial court considered the sentencing principles and al l relevant facts

and circums

tance s." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider th e defendant's potential for rehabilitation, the trial and sentencing hearing evide nc e, the pre-sentence report, the sentencing principles,sentencing alternative arguments, the nature and character of the offense, theenhancing and mitigating factors, and the defendant's st

atements. Tenn. Code Ann. §§ 40-35-103(5), -210(b); Ashby
, 823 S.W.2d at 169. We are to also recognize that the defendant bears “t he burden of demonstrating that th e sentence is improper." Id

. ALTERNATIVE SENTENCING Turning more specifically to the issue of alternative sentencing, we find that the defendant failedto prove himself su itable for this opti

on. Because

he is a Range II, multiple offender, he is not entitled to the statutory pres umption that such sentencing would be appropriate in his case. See Tenn. Code Ann. § 40-35-102(5), (6). Furthermore, among the recognized proper c onsiderations justifying confinement are that inca rcera tion is “ne cessary to prot ect society by rest raining a defendant who has a long his

tory of cri

minal conduct” or

th at “[m]easures less restrictive than confinement

have frequently or recently been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-103(1)(A), (C). The record presently before this Court reveals that the trial court based3 We also note that a 1985 misdemeanor conviction was among those not mentioned above and that there seems to have been a pe riod of time in the mid-1990 's during which the defendant garnered no additional convictions.

4 This calculation does no t include speeding offenses.

-3- its denial on the length of the defendant’s pr ior record an d on the failure of “prior efforts at rehabilitation less the incarceration.” From our review we agree that the defendant clearly has a long history of criminal conduct. As a matter of fact, the record reveals that the defendant’s criminal history be gan as a juvenile. Add iti ona lly, his string of prior conv ictions inc ludes driving under the influence, driving on a revoked license, possession of

stolen property, theft over five-hundred dollars ($500.00), assaulting

an officer, obstruction of justice, and two felony drug offenses. It is also worth

y of mention t

hat this sampling of the defendant’s record spans the years fr om 1986 to 1999 and doe s not include any convictions entered on the sa me dates. 3 Furthermore, the defendant acknowledged that h is drug usage began at the age of eleven and came to involve cocaine, her oin, marijuana, P CP, LSD, etc. His abuse of

narcotics contin

ued with some alleg

ed periods of sobr

iety through November of 1999. Also two failed drug screens formed the basis for the defendan t’s 1987 pr obation rev ocation th ough he told the presentence investigation officer that he had been drug-free from 1986 to 1988. We further observe that while the defendant has apparently taken commendable steps toward addressing his addictions since N

ovember of 1999, t

he record reve

als at least two previ

ous involvements wit

h drug program

s that unfortunate

ly did not res

ult in his conquerin

g this problem. Moving to the question of w hether me as ures less restrictive than incarceration have frequently

or recently

been applied unsu

ccessfully to the defendant, this Court determines that the evidence supports such a finding. Thepresentence report indicates that the defendant has received

no jail time for at

least eight of hi

s prior misdemeano

r convictions. 4 Some of these occurred in the late1990's. However, he continued to commit criminal offenses showing a disregard for the law. See Statev. Mark A. Hill , No. 01C01-9801-CC-00042, 1998 WL 917807 at *2 (Tenn. Crim. App. at Nashville, Dece

mber 21, 1998); Statev. Jeffrey Allen Phillips , No. 03C01-9612-CR-00475, 1998 WL 23265 at *1 (Tenn. Crim. App. at Knoxville, January 15, 1998); State v. Carl E. Campen , No. 01C01-9512-CC-00433, 1997 WL 661728 at *3 (Tenn. Crim. App. October 24, 1997). Moreover, the defendant’s parole on a felony drug conviction wa s revoked in 1993 after

he had been on supervised release for

a little more than one year, and the 1987 probation revocation was based on failed drug scr

eens. In sum, the defendant was not entitled to a pres umpt ion of suitability for alternative sentencing; the trial court determined that he was not an appropriate candidate for such. He has a lengthy criminal history reflecting a disregard for the law; and measures less restrictive t ha n
c onfinement

have frequently

or recently

been unsuccessf

ully applied

to him. Accordin

gly, th e judgment of the trial court is AFFIRMED.

___________________________________ JERRY L. SMITH, JUDGE