# FILED

Au gust 12, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT KNOXVILLE JUNE 1997 SESSION

STA TE OF TENN ESSEE, ) ) C.C.A . NO. 03C01-9608-CC -00321 Appellee, ) ) BLOUNT COUNTY VS. ) ) HON. D. K ELLY TH OMA S, JR., STEVEN J. HA

YNES, ) JUDGE ) Appellant. ) (Sente ncing)

FOR TH E APPEL LANT: FOR THE APPELLEE:
MA CK GA RNER JOHN KNOX WALKUP Distric t Public Defender Attorney Gen eral & Repor ter 419 High St. Maryv ille, TN 37804 MARVIN E. CLEMENTS, JR. Asst. Attorney

General 450 Jame s Rob erts on Pk wy. Nashvil le, TN 37243-0493 MIKE FLYNN Distric t Attorney General PHILLIP MO RTON Asst. Dist rict Attor ney General Blount County Courthouse Maryv ille, TN 37804

OPINION FILE D:____________________

AF FIRMED
JOHN H. PEA Y, Judge O P I N I O N2 The d efendant was decl ared a Motor Vehicle Habi tual Offende r i n September 1993 . During a five month per iod from August 1 995 to January 1996, the defendant was charged wit h violati ng the Motor Vehicle Habitual Off enders Act along w ith variousother traffic re lated offenses. On February 14, 1996, he pled guilty to all charges. After a hearing , he received an effective sent ence of six years.

In this appeal as of rig ht, the defendant complai ns that the tri al court erre d when it refused to place him on probation or i n Community C orrections. After a review of t he re cord , we fi nd no error and a ff irm th e jud gmen t of the c ourt belo w.

As noted above, th e defendant pled gui lty to n umerous charges. Spec ific ally, he pled guil ty to four counts of violating the Motor Veh icle Habitual Offend ers Act, two counts

of drivingon a revoked license, one count of failure to yield, on e count of evading arrest, and tw o counts of reckl ess en dangerm ent. He recei ved a one year sentence for the Motor V ehicle Habit ual Offen der vio lation in cas e #9260; a one yea r cons ecut ive sentence for the M otor Veh icle H abitual Offender v iolation in case #9340;
a two yea r con secu tive sentence for the M otor Vehicle Habitual Offender violation in case #9335; and a two year consecuti ve sentence for th e Motor Vehic le Habitual Offender violatio n in case #9343. The sentences for the r emaining conv ictions areconcurrent t o case #9260. Thus, th e defendant has an effective sente nce of six years.

At his sentenci ng hearing , the defendant testified that h e had known th at he was not s upposed to drive, and that he had not d riven prior to August 1995. He testified that on August 16, 1995, he had had to drive to where hi s nephew was residing in order to tel l the nephew that he needed a ride to work. The de fendant’s wife usually took him to work

but she was

unable to do so on this day because she was hospitali zed.3

W hile the defendant was on his way to see his nephew, he was stopped by police officers for having only one headl ight.

The defendant te stified that aft er this occurred, he had continued to dri ve because he thought

that any puni shment he woul d receivefrom the first offense would
run concurrently with any subsequent offenses. Conse quently, the defendan t again drove his vehi cle on October 21, 1995. The defendant testified that he had been taking the vehicle to be repaired when he was stopped by police off icers.

Then on November 5, 1995, the defendant deci ded to drive to his mother’s house fordinner. He testified that he h ad had to drive because his wife wa s away taking
care of a relative. While the defendant was on his way , polic e officers recognized him and attempted to pull him over. The defendant, however, sped up in an effort to get away from the officers. He was arrested the next day at his

home.

The final violation occurred on January 13, 1996 . This time the defendant had just picked up his vehicle from the repair shop and was returning home when he was spotted by police officers. Again the def endant increased his spee d in order toget away from the officers. He was arrested later that evening at his home.

The defendant admitted that w hile try ing to elude the police he had exceeded the speed limi t. However, he denied forcing other vehi cles off the road in order to avoid arr

est. The defendant also admitted that he had d rive n his vehicle about six other times when he had not been stopped by pol ice. He tes tified thatimportant reas ons had led him to deci de to drive.

The defendant testified that at the time of the hear ing he was employed as1 W e recogni ze t hat t here has been some question as t o whether a defendantconvi cted of violating the M otor V ehic le Ha bitual O ffen ders Act c an b e se nten ced to pro bation . W e ha ve c hos en to fol low t he concurr ing op ini on in Stat e v. Michael Richmond , No . 02C 01-9 410 -CR -002 17, S helb y Cou nty (Tenn. Cri m. App. fi led Sept . 13, 1995, at Jackson). Most cases al so appear t o fol low t his cour se. Thus, our a nalysis add res ses the a ppro priate nes s of d enying both prob ation a nd C om m unity Co rrec tions. 4 a heavy equipment operator with Earthworks, Inc. He further testified thathe is marri ed and has three chi ldren under the age of eighteen. He also testified thath e does not abuse drugs or alcohol. His pre-sentence report indicates a history of criminal offenses that are mainly

motor vehic le related.

The defendant now appeal s and argues that he should have been placed
on full probation o r

in Community Corrections. 1 When a defendant complains of hi s or her sentence, w e must cond uct a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d) . The burden of showing that the sente nce is improper is upon the appealing party. T.C.A. § 40-35-401(d) Senten cing Commiss ion Com ments. This presumption, however , “is condi tioned upon the affirmative show ing in the r ecord that

the trial court considered thesentencing principles and all rel evant factsand circumsta nces.” State v. Ash by , 823 S.W .2d 166, 169 (Tenn . 1991).

T.C.A. § 40-35-103 sets out senten cing co nsiderations which ar e guidelines fordetermining whether or not a defendant should be incarcerated. These include the need “to protect society by restraini ng a defendant w ho has a long hist ory of cri minal conduct,” the need “to av oid depreciati ng the ser ious ness of the offense,” the determination that “confinemen t is particularly suited to provide an effective deterrence to others lik

ely to commi t similar offenses,” or the dete rmina tion that “measures less rest ricti ve tha n con fin eme nt ha ve frequently or recently been applied unsuc cessfully to the defenda nt.” T.C.A. § 40-35-103(1).

In determining the specific s ente nce a nd the possible combination of5

sentencing alternatives, the court shall consider the following : (1) any evidence from t he trial and sentencing hearing, ( 2) the presentence report, (3) t he principl es of sentencing and the arguments concerning sentencing alternatives, (4) the nature and characteristics of the offense, (5) infor mation o ffe red by the S tate or the defendant concerning enhancing and mitigating factors as foun d in T.C.A. §§ 40-35-113 and - 114, and (6) the defendant’s statements in his or her own behalf conc erning sent encing. T.C. A. § 40-35-210(b) . In addition, the legisl ature establi shed certain s entencing pr inciples which inclu de the f ollowing:

(5) In recogni tion that state prison capaci ties and the fundsto build an d main tain them are li mited, convi cted felons committing the most s e vere offenses, poss essing cr iminal historiesevincinga clear dis regard for th e laws and morals of soci ety, and evincin g failure of past efforts at rehabilitat ion shall be given fir st priority regardingsentencing involv ing incarcerati on; and (6) A defendant who doe s not fall w ithin the paramet ers of subdivis ion (5 ) and i s an especially mitigated or standard offenderconvicted of a Class C, D or E felony is presumed to be a favorable candidate for alter native sente ncing options in the a bsen ce of evide nce t o the cont rary. T.C.A. § 40-35-1 02.

After review ing the statutes set out above, it is obvi ous that the inten t of the legislat ur e is to en courage alternatives to incarceration in cases where def endants are sentenced as standard or mitigated off enders convicted of C, D, or E felonies. However, it is also cl ear that there i s an i ntent to incarcerat e those defendants w hose criminal historiesindicate a

clear disr

egard for the l aws and moral s of society and a failure of pa st efforts to rehabili tate.

In this case, t he trial ju dge stated that while the defend ant was presumed to be an eligi ble candidate for p robation, the presumpti on had b een overcomeby several factors. T he court cited the defendant’s “long hi story of cr iminal conduct, ” the need to6

avoid depreciatingthe seriousnes s of the offense, and the defendan t’s lack of potential for rehabilitation. The tria l judge pointed out that the de fendant had driven many times, althou gh he knew he s hould not, and wasonly charged wit h four drivi ng viol ations despite his being behind the wheel numer ous times. The tr ial judge further pointed out that after being stopped once, the d efendant c ontinue d to drive and ultimately received four differe nt sets of o ff ense s in a f ive mo nth p erio d. He also note d tha t the def end ant wa s dangerousbecause of his attempts to evade arrest and disrup t traffic. He concluded that the defendant had made a consci ous decision t o violatethe l aw. Theref ore, the trial judge ordered the defendant to serve hi s six year sentence in the Department of C orrection.
Thus, it is q uite clear t hat the trial court’s conclusion i s amply suppo rted by the evidence. Probation is not proper fo r this defendant; we aff irm the trial court ’s decision to deny

probation.

We now tur n to t he q uest ion of whether th e defendant should have been granted Community C orrections. The Community Corrections Act of 1985 establishes a community

based alternati ve to incar ceration for cer

tain offend ers an d sets out the minimum eligibi lity requirements. T.C.A. §§ 40-36- 101 through -30 6. This Act does not provide that all offenders w ho meet the standards are entitled to such reli ef. State v . Taylor , 744 S.W .2d 919, 922 (Tenn . Crim. App. 1987).

The purpose of the Tennessee Community Co rrections Act of 1985 is to establish a pol icy to p unis h sel ecte d, no nviol ent f elon y off end ers th rough comm unit ybased alternatives to incarc eration. The g oals ofthe Community Correcti ons Act incl ude the foll owi ng: main tain ing safeand efficient community correctio nal progra ms, promoting accountabilit

yof offenders to their local community , filling gaps in the l ocal correc tional system through the development of a ran ge of sanctions and servi ces, redu cing th e7

number of nonviolent felony of fenders in correc tional insti tutions and jai ls, and providi ng “opportuniti es for offen ders demonstrating sp ecial ne eds to receive services which enhance theirability

to provi de for their families and be come contributing memb ers of their community . . . .” T.C.A. § 40-36-104(1)-(5).

In this case, t he trial cour t also denied th e defendant’s req uest for Community

Correcti ons. This deter mination was based on the sam e re asoning for denying the defendant’s req uest for probation . Again, as the conclusi on was sufficiently supported by the evidence, we see no r eason to distur b the trial court’s deci sion.
Thus, we conc lude that t he defendant has failed to carry hi s burden of demonstrating that the evi dence preponderates ag ainst the trial cour

t’s findings , and ther efo re, we aff irm th e jud gmen t bel ow.

_______________________________ JOHN H. PEA Y, Judge

CONCUR:

JOSEPH M. TIPTO N, Judge

_______________________________ J. CURWOOD WITT, JR., Judge