# FILED
September 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE AUGUST 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9710-CC-00476 Appellee, ) ) Marshall County v. ) ) Honorable Charl es Lee, Judge JEFFREY DAVID HAHN, ) ) (Sentencing) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Julie A. Martin John Knox Walkup P. O. Box 426 Attorney General & Repor ter Knoxville, TN 37901-0426 425 Fifth Avenue, North (On Appeal) Nashville, TN 37243-0493 Michael D. Randles Georgia Blythe Felner Assistant Public Defender Assistant Attorney Gener al 218 North Main 425 Fifth Avenue, North Shelbyville, TN 37160 Nashville, TN 37243-0493 (At Trial) Willi am M. McCown OF COUNSEL: District Attorney General John Harwell Dick

ey 215 East College District Public Defender Fayetteville, TN 37 334-0878 105 South Main Fayetteville, TN 37

334 Weakley E. Barnard (At Trial) Assistant District A ttorney General Marshall County Courthouse Lewisburg, TN 37091

OPINION FILED: _________________________

____ AFFIRMED L. T. LAFFERTY, SPECIAL JUD GE2 

### OPINION
The defendant, Jeffery David Hahn, appeals as ofright from the manner of service of sentence imposed by the Mar shall County Circui

t Court for the of fenses of forge ry, passing worthless checks, and failure to appear. As a result of a guilty pl ea, the defendant received a sentence of eight (8) years, Range II, for the offense of forgery; a sentence of two (2) years, Range II, for th e offen se of pas sing worthl ess check s; and a se ntence o f two (2) years, Range II, for th e offense of failure to appear, all torun consecutively in the Departmentof Correction. As part of the pl ea agreement, the de fendant requested placeme nt in the community correcti ons program under Tenn. Code Ann. § 40-36-106. After a sentencing hearing, the trial court denied plac ement in the community corrections program. The defendant complains the trial cour t erred by not properly considering the defendant’s eligibility

for alternative sentencin g in the community corr ections program.

After a review of the e

vidence i n this record, the briefs of the parties, and the applicable law, we

affirm the trial court’s ju dgment.

FACTS

On March 20, 1996, the Marshall County Grand Jury indicted the defendant in cause
no. 12805 in twenty-four (24) counts of forgery and uttering various checks of the Columbia Hearth & Home, Inc., between December 6 , 1995 and December 21, 1995, totali ng approximately $11,000.00. On August 21, 1996, the defendant was indicted for two

counts of passing worthless checks in cause no. 12944, on June 29, 1996 for $503.90 and on July 3, 1996 for $60.90. On December 11, 1996, th e defendant was in dicted for t he offense of failure to appear on September 18, 1996 be fore the Marshall County Circuit Court for an official proceeding. GUI LTY P LEAS

On Fe bruary 1 9, 1997, the defendant entered a plea of guil ty to the offense of forgery, agreeing to a sentence of ei ght (8) years, Range II, in count on e of cause no.3

12805. As part of the plea agreement, counts tw o (2) through twenty

-four (24) would be nol prosed. Also, the defendant agreed to res titution to be det ermined at the sentencing hearing based on all counts. The defendant stipulated on Dece mber 19, 1995 he stole a checkfrom his employer, Mr. F rank Broom, owner of Columbi a Hearth and Home, Inc., and cashed the check in the amount of $7,000. The defendant w as identified as the party w ho cashed the check.

In cause no. 12944, the defendant agreed he p assed a worthless c heck in the amount of $504.90, on June 29, 1996 to the Marshall F armers Co -op. Coun t two (2) was nol prosed.
In cause no. 13016, the defendant entered a g uilty plea to failure to appear in the Marshall County Ci rcuit Court on September 18, 1996.

SENTENCING HEARING

At the sent encing heari ng, the defendant testified he was 41 years old and spent some time

in the U. S. Navy. The defendant was presently married and raising one child and a 17-year-old stepdaug hter. The def endant ha d been married four times with three additional children, but had difficulty in making his child s upport payments. The defendant attributed this difficulty to being in jail most of the time and “games his ex -wife was playi ng.” The defendant’s present wife is unab le to work du e to a nerve problem. While the defendant was in jail, his wife was receiv

ing some sort of govern ment assistance.

If released from jail on the community corrections program, the defendant would contact Margaret

Hereford, associated with a vocational rehabilitation program in Marshall County, for job training. The defendant ag reed to make restitution payments beginning with $250 a month, plus $1,000 in a savi ngs account. The defendant was sent t o Middle Tennessee Mental Health Institute. The defendant testified the Institute, upon his release, would set up a case manager to work with the defendant to pay his bills, budget his money4

and make sure he stays on his medicine. The defendant testified he was taking Paxi l “for something in the head.” Als o, the defendant took Klonopin for seiz ures.

As to the offenses the defendant stated, “I admit i t since I got picked up on it.” The def endant agreed the offenses were his fault. The def endant agreed that for t he pas t twenty (20) years he has been i n trouble with the law , such as convictions ranging from stealing a truckin Texas, receiving three years, 14 counts of passing worthless checks in Humph rey s County, bail jumping,a DUI conviction in Williamson County, and passing worthless checks in Marshall County in 1989. As for the pr esent offenses, the defendant testified he was on a drink ing binge.
In summary, the defendant testified, i n his plea for an alternativ e sentence: Well, I have got a wif e and kids to worry about now. I didn’t before. I think after going to the--I was at Parthanon Pavillion. Theydid a lot of counseling with me. Then turned around and I went to Middle Tennessee; got a lo t of coun seling down there. I feel a lot better about mysel f than I did before all of this ever got started. The presentence report in this record establishes the defendant has a substantial historyof crimin al convict ions and behavior: (1) the de fendan t was convi cted o f larceny in Texas, in March, 1977, r eceived a three-year

sentence, and pla ced on parole; (2) on November

20, 1985, the defendant was convicted in H umphreys County of 17 counts of p ass ing worthless checks, s entenced to five years on three counts in the Department of Correction and eleven months and twenty -nine days on 14 counts, and placed on probation forfive years; (3) on N ovember 16, 1987, the defend ant was con victed of petit larc eny, sentenced to six months, and placed on probation for one y ear; (4) on June 27, 1988, the defendant was convicted of DUI, sentenced to eleven months and twenty-nine days , and placed on probation after serving 48 hours; (5) on December 28, 1989, the defendant was convicte d of bail jumping and sentenced to three years; (6) on Dec ember 15, 1989, the defendant was convicted of passi ng worthless checks in Marshall County and sentenced to six years, Range II; (7) on December 15, 1989, the defendant was convic ted of passing two worthless checks and received sentences of elev en months and twenty-nine da ys; (8)1 For some strange reason the defendant’s pa role was never revoked with numerous arrestsand convictions during the parole period. It should be noted the defe ndant’s parole expired April 3, 1995, and in less than eight months the defend ant committ ed these offenses. 5 between June 26, 1991 and October 20, 1992, the defendant was arrestedfour times and convicted of driving on a rev oked license; and (9) on October 11, 1994, the defendant was convicted of passing a worthless check and received a sent enc e o f eleven months and twenty-nine days.

As part of the defendant’s criminal hi story, thedefend ant had two periods of probation revoked. 1

Based upon this evidence, the tr ial court denied placement in the community correctio ns program.

DENIAL OF COMMUNITY CORRECTIONS

The defendant contends the trial court fail ed to consider the sentencing principl es in the Sentencing Reform Act of 1989. Tenn. C ode Ann. § 40-35-103. The defendant argues th e tria l court appears to have decided this case on the basis of one proble m it perceives

in the criminal justice system. Further, the defendant contend s the trial court failed to appropriately consider the defendant’s potential for rehabilitation and treatment, since he had already begun mental health counseling and drug treatment for his alcohol and mental health problems.

The defendant must establish the burden of showing that

the manner of the service of a sentence imposed by a tri al court is improper. S tate v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). This Court must conduct a de novo review of the sentence w ith
a presumption that the determinatio ns made by thetrial court are corr ect. Tenn. Code Ann. § 40-35-401(d). The “presumpti on of correctness which a ccompanies the trial court’s action is conditioned upon t he affir mative showing in the record that the trial court6

considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Thus, if there is no presumption of correctness, this Court conducts a de novo review without the presumption of correctness. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992), per . app . denied (Tenn. 1993).

The defendant contends he is eligible for placementin the community corrections program under Tenn. Code Ann. § 40-36-106 (a):

(1) Persons who, without this option, would be incarcerated in a correctional institution; (2) Persons wh o a re convicted of property -related or drug/al coho l-related felony offenses or other felony offenses not involving cr

imes against the person as provided in title 39, chapter 13, parts 1-5; (3) Persons who are convicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possession of a weapon w as not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicating v iolence; (6)(c) Felony

offenders not otherwise eligible under subsecti on (a), and who would b e usually considered unfit for probation due to histories of chronic a lcoho l, drug abuse, or mental health problems, but whose s pe cial needs are treatable and could be served be st in the community rather than in a correctional ins titut ion, may be considered eli gible for punishmentin the c ommun ity under the provisions of this chapter.
In response to thedefendant’s plea for an alternative sentence, the trial court found that normally the defendant woul d be a suitable candidate for an alternat ive se ntence. However, the defendant was not entitled to such a presumption since the defendant was
a Range II offender and facing cumulative sentence s of 12 years. In denying an alternat ive sentence, the trial court s tated: Would that there could be some pill we could administer to keep people f orm violat ing the law, b ut there is not such medication. The Court finds the defendant hasfailed to carry his burden of proof and with this c omment, one of the reasons in this court’s opinion that our criminal justice system continu es to take a backward slide is that there is not certainty any more in the law. There once was a virtual certainty

that a person with a record that Mr. Hahn has would go to the penit entiary if he violated the law. The mere fact this court has to conduct a se nten cing hearing with such a record indicates as w ell as7 a pparently Mr. Hahn felt that he might have a ch ance a t alternat ive sentencing, ergo there is no certainty in the la w. We will contin ue to slip backwards with such a velocity. Although the trial court did not articulate in its ruling the sentencing requirements of Tenn. Code Ann. § 40-35-103, it was following these requirements

in spirit. This statute in pertinent part states:

(1) Sentences involving confinement should be based on the following considerations: (A) Confinement is necess ary to protect society by restraining the

defendant who hasa long history of criminal con duct;

* * * * * (C) Measuresless restrictiv e than confinement have frequently or rece n tly been applied unsuccessfully to the defendant.
T he defendant called the court’s sta tements a diatribe concerning the criminal jus

tic e system, but it appears more that t he trial co urt was expressi ng its frustration with the defendant’s total lack of personal r esponsibility for his actions.

I n conclus ion, we find from our de novo review that the rec ord is adequate to support the deni al of an a lternati ve sentence under theCommunity Corrections Act. The judgment is affirmed.

___ _____ _________________________ _ L. T. LAFFERTY, SPECIAL JUD GE8

CONCUR:

___________________________________ JOHN H. PEAY, JUDG E

___________________________________ THOMAS T. WOODALL, JUDGE