# FILED

January 12, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9611-CR-00436

Appellee, * SHELBY COU NTY VS. * Hon. Joseph B. Da iley , Judge JOHN W. THOMAS, * (Motor Vehicle Habitual Offense) Appellant. *

For Appellant : For Appellee : Walker Gwinn John Knox Walkup Assistant Public Defender Attorney General and Repor ter 201 Poplar Avenue, Suite 2-01 Memphis, TN 38103 Kenneth W. Rucker (on appeal) Assistant Attorney Gener al Criminal Justice Div

ision J.T. Harris 450 James Robertson Parkwa y Assistant Public Defender Nashville, TN 37243-0493 201 Poplar Avenue, Suite 2-01 Memphis, TN 38103 Terrell L. Harris (at sentencing h earing) Assistant District A ttorney General Criminal Justice Co mplex Of Counsel: 201 Poplar Avenue, Third Floor Memphis, TN 38103 A.C. Wharton, Jr. Shelby County Public

Defender

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, John W. Thomas, pled guilty to two separate violations of the order declaring him a motor vehicle habitual offender. The trial court imposed concurrent, Range III sentences of five years for each of the two Class E felonies; the workhouse sentence is to be served in the Shelby County Corrections Center.
In this appeal of right, the defendant comp lains that the trial court should have granted place ment in a Community Correc tions program. We find no error and affirm the judgment of the tr ial court.
On May 8, 1995, the defendant was barred from operatin g his automobile under the provis ions of the Motor Vehicle Habi tual Offenders Act. See Tenn. Code Ann. § 55-10-616. W hile the order prohibiting operation of the vehicle was in effect, the defendant continued to drive. Indicted for incidents occurring on July 13 and July 25, 199 5, the defendant waived his r ight to a trial by jury and entered pleas of guilt on each c harge.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at3 the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35- 102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum requirements of the Commun ity Corrections Act of 1985, however, does not mean that he is entitled t o be sentenced under the act as a matt er of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The follow ing offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving c rimes against the person as4 provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13, parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

Here, the defendant meets the threshold qualifications for both probation and Community Corr ections. He contends that the t rial court failed to set forth specific findings of fact in deny ing an alternative se ntence. The state concedes that the rulings were less than adequate. The 1989 Act does provide that the record of the sentencing hear ing "shall include specific findings of fact upon which application of the sentencing principles w as based." Tenn. Code Ann. § 40- 35-209(c). While we acknowledg e that the trial judge shou ld comply with the provisions of § 40-35-209(c), we are nonetheless able to conclude from our de novo review that the record is adequate to support the denial of an alternative sentence under the Community Correc tions Act.
The defendant, thirty-three years of age, is single and resides in Memphis wi

th his gir lfriend, Dea rdra Barry , and her tw o children. He provi des some support. Described as a valuable employee, he is employed by Jones Brothers Tree and Landscape Company wher e, except for a five-month per iod, he has been employed since May 27, 1994. The defendant ackno wledges a history of substance5 abuse, including cocaine u sage during the 1980's and an alcohol addiction for the last several year

s. At the time of the sentencing hearing, he attended a school for alcoholics. From all appearances, neither of the vio lations of the order prohibit ing driving invo lved the u se of alc ohol. Th e defen dant ack nowledges an "exten sive prior criminal recor

d" over the last ten yea rs, much of which is alc ohol or driving related. His other offenses, however, include selling a controlled substance, pet it larceny, assault and batt ery, attempt to commit a felony , robbery, burglar y, and inhaling toxic vapors. The trial court denied the petition based upon the def endant's prior criminal histor

y. The trial judge w

as particularly di stressed that the defendant had continued to drive after hi s arrest on the first char ge.

The defendant has established him self as a valuable, dependable employee. The record demonstrates that he has un dertaken some treatment for his addiction to alcohol. While serious v iolations of a court order, the current offenses are of a non-violent nature. He is supportive of his girlfriend and her chil dren. All of these things are favorabl e indicators for a placement in a Community Corrections program. On the other hand, the defendant's prior criminal history cannot be described as anything other than extensive. His past includes both feloni es and misdemeanors and several instances of incarceration. Predicate offenses were required before the defendant qualified a s a motor vehicle habitual offender. W ithin a period of two weeks, the defendant was discovered violating a court or der prohibiting the operation of an automobile on two separate oc casions.
A sentence of confinement is often necessary to protect society by restraining the defendant who has a long history of criminal activity or is necessary to avoid depreciating the seriousness of the offenses. Tenn. Code A nn. § 40-35- 103(1)(A), (B). Cor

rective measures less

restrictive than i ncarceration have not6 been successful for the defenda nt. Tenn. Code Ann. § 40-35-103(1)(C). Because the defendant pled guilty as a Range III offende r, he is not entitled to the statutory presumption that he is a favorable candidate for alternativ e sentencing. State v. Bonestel , 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); Tenn. Code Ann. § 40-35- 102(6). Nonetheless, the defendant ha s demonstrated some potential for rehabilitation and treatment; the trial court has left op en the possibility of some form of alternative sentence by denying the petition for Community Corrections "at least at this point." While the def endant has made a compelling argument that he sho uld qualify for the program, "it is not the policy o r purpose of this court to pl ace trial judges in a judicial [

strait jacket on matters of s entencing]." Ashby , 823 S.W.2d at 171. Sentencing must requi re an individualiz ed, case-by-case approac h. State v. Moss , 727 S.W.2d 229, 23 5 (Tenn. 1986). That necessarily embodies the exercise of discretion at the trial c ourt level. See State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991). Although a reasonably close is

sue, the better alternativ e, in our view, is to defer to the determination of the trial cour t. The record supports the conclusion reached.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Joe G. Riley, Judge