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

Briefs M ay 21, 2003
STATE OF TENN ESSEE v. JEFFREY DOUGLAS STRA TTON
Direct Appeal from the Circuit Court for Blount County No. C-13828, 13829 D. Kelly Thomas, Jr., Judge

No. E2002-02485-CCA-R3-CD July 22, 2003

Defend ant, Jeffrey Douglas Stratton, was indicted on two counts of burglary . Defendant entered guilty pleas to both counts. Defendant was sentenced to twoyears f or each conviction, to be served
concurr ently with each other and c onsecuti vely to his sentence for a prior conviction. Defendant contends that the tr

ial cour t erred by o rdering a sentence of incarce ration. After reviewing the record, we conc lude that

a sentence of confinement was supported by the record. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined.

Julie A. Rice, K

noxville , Tennes see (on a ppeal) a nd Ray mond Mack

Garner , Distric t Public Defender; and Stacy Nordquist, Assistant Public Defe nder, Maryville, Te nnes see (at trial) for the appellant, Jeffrey

Douglas Stratton.

Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Bouc ek, Assistant Attorney Genera l; Michael L. Fly

nn, District Attorney Gene ral; andEdward P. Bailey , Jr., Assistant District Attorney General, for the appellee, the State of Te nnessee.
OPINION

At the September 23, 2 002, sen tencing hearing, Def endant testified that on the date of the offense, he got off work at approximately 12:00 noon and went to the Party Pub, where he play ed cards and drank

alcohol. He left the Party Pub at 12:00 midnight. He walked around the corner and entered Bill’s Ha ir to use th

e restro om. Defendant “got on the computer, just messing around. Had all the ligh

ts on and everything .” Defendant did not remember whether he took anything fr

om Bill’s Hair. He testified that “a lot of my recollection of what happened is what I’ve been told [by police officers].” He left Bill’s Hair and went inside Jus t So D ecorat ing th rough the back door, which was open. Defendant “just walked in there and got on the computer. Just – I mean, just basically , you-2-

know, drinking

still.” Whe

n poli ce officer s arrested Defendant, he was standing against the back of the building. Def

endant di d not attemp t to run. Def endant w as advise d of his Miranda rights, and he refused to answer any

questions and requested the presence of a la wyer.
Defendant

en te re d g ui lt y p leas to bo th offenses as a Range I standard offender. At the conclusion of the sentencing hearing, the trial court imposed a

two- year sentence for each conviction and ordered the sentences to be served c oncurrent ly with ea ch other , but conse cutively to his sentence for

a prior conviction. The trial court emphasized De fe nd an t’ s e xt en si ve cr im in al hi st or y, finding th at the pr

esumption

favorin g alter

native se ntencing was “ove rcome by the fac t that thes e offenses were committed while y ou were on bond for several other fe lony offenses.”

The trial court further found that Defendant’s potential for rehabilitation was poor, stating that “[Defendant has ] notbeen ab le to ge

t a hold on [h

is alcoho l] prob lem, in spite of being involved in some treatment [prog rams ], a nd continue[s] to commit crimes.” The trial court therefore ordered De fendant’s sentence to be served in the Tennessee D epartment of Correction.

Defendant

complain s that the t

rial cou rt erre d by

refusin g to order a ltern ative sente ncing. Our review o f a defe

ndant’s s entence

is de novo with a presumption th at the trial court’s determinations are cor

rect. Te nn. Code A

nn. § 40-3 5-401(d) (1997); State v. Imfel d , 70 S.W.3d 698, 704 (Tenn. 2002). For this p resumptio n to apply

to the tria

l court’sdetermin ations, however, there must be an affirmative

showing in the record that the trial court considered sentencing principles and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999).

If the trial court h as impos ed a lawful sentence by following the statutory se ntencing procedure , has g iven due consideration to the factors and sentencing principles, and has made findi ngs of fact adequately supported by the record, this Court may not modify the sentence even if it would have preferred a diffe rent result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, if the trial court fails to comply with the s tatutory di rectives, our review of the sentence is de novo without a presumption of correctness. State v. W in field , 23 S.W.3d 279, 283 (Tenn. 2000).

When determining a defendant’s suitability for alternative sentencing, the sentencing court may consider the following factors: (1) whether confine ment is n ec es sa ry t o protect society by restra ining a defendant who has a long history of criminal conduct; (2) whether confinem ent i s necessary to avoid depreciating the seriousness of the off ense; (3) whe

ther con finemen t is particu larly

suited to p

rovide a n effective dete

rrent to others like

ly to commit similar offenses; (4) whether measures less restrictive than confinement have fre quently or rec ently been a pplied
unsucce ssfully

to the defendant; and

(5) whether

the defendant has poor potential for rehabilitation. See Tenn. Code Ann. § 40-35-10 3(1) (19 97); State v. Housewright , 982 S.W.2d 354, 356–57 (Tenn. Crim. App. 1997). Although a Range I

standard offender convicted of a Class D f elony is normally

presumed to be a favorable candidate for alternative sentencing, the trial court correctly concluded that the presumption was over

come by Defend ant’s lengthy

criminal histo ry and his poor potential for-3-

rehabilitation. This determination is supported by the record. At the time of sentencing, Defenda nt was thirty-five y

ears old. Defendant testified at the sentencing he aring that he began drinking alcohol at the age of fifteen. That is also the age at which Defendant’ s extensive record of criminal offenses began. The presentence report reveals that Defendant has for ty-three pr

ior arrests and convicti ons, including seven felony convictions for forg ery in 2 001, four prior convictions for driv in g under the influence of an intoxicant, and numerous prior misdemeanor convictions, many of which ar e alcohol related. Defendant’s pre vious attempts at rehabilitation have failed. Furthermore, Defendant committed the felo ny o ffense

in this case while he was free on appeal bond for his prior felony

convictions. The trial court properly sentenced Defendant.

Defendant

also argues that mitigating factor (11), that he committed the offense under such unusual circumst

ances th at it is unlik

ely th at a sustained intent to violate the law motivated the criminal conduct, weighs against incarc era tion. See Tenn. Code Ann. § 40-35-113(11) (1997). Defendant

argues that his “exagge

ratedstate of intoxication combined with a need to urinate” qualifies as an “unusual circumstance.” We disagr ee. Defendant is not en titled to r elie f on this issue.
CONCLUSION

After a careful review of

the record before us, we conc lude that Defendant received an appropriate sentence. The judgme nt of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE