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

Briefs J uly 9, 2002
STATE OF TENNESSEE v. JOE CARLTON HURT
Direct Appeal from the Circuit Court for Hardin County No. 8035 C. Creed McGinley, Judge

No. W2001-02742-CCA-R3-CD - Filed October 9, 2002

The defenda

nt conten ds the tria

l court sh ould have

sentenc ed him to a

Comm unity Correc tions Progra m. We conclude ample evidence exists to support the trial court’s findings that incarceration is necess ary to protect society f rom the defendant. The defendant has a long history of criminal conduct. We affirm the judgments from the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and A LAN E. G LENN , JJ., joined. Guy T. Wilkinson , Distric t Public Defender; and Richard W. DeBerry , Assistant Public Defender, for the appellant, Joe Carlton Hurt.

Paul G. Summers , Attorney Gene ral and Reporter; Christine M. Lapps, Assistant Attorney Genera l; G. Rober t Radf ord, Distr ict A ttorn ey Gene ral; and Jo hn W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION I. Background The defendant, Joe Hurt, appeals his two-y ear jail sentence contending the trial c ourt erred in not sentencing him to the Community Corrections Prog ram.
The first set of offenses occurred on August 3 1, 2000. A

Hardin County

deputy stopped the defendant after o bserving him driving

reckle ssly . The deputy

determine d that the defendant was intoxicated and was prohibited from driving due to his habitual motor vehicle offender status. The defenda nt was ar rested f or the fo llowing o ffense s:-2-

(1) driving while prohibited as a habitual motor offender, in violation of Tennessee Code Annotated section 55-10-616(a), (2) driving

under the influenc e of an in

toxicant or

drug, s ixth offense, in violation of Tennessee Code Annotated section 55-10-401(a)( 2), and (3) driving

while und

er the in fluence of an into xicant or d

rug, sixth offense , in violation of Tennessee Code Annotated section 55-10-401(a)( 1).

The second set of offenses occurred about three months late

r, on Nove

mber 17, 2 000, while the defendant was on bond for th e above offenses. After being dispatched to a domestic violence call, a Hardin County deputy observed the defendant

fleeing the scene

in his car. The defendant’s blood alcohol level registered at .13 %, there fore, the officer arreste d the defendant for the next set of offe nses: (4) driving while prohibited as a habitual motor o ffender , in violation of Tennessee Code Annotated section 55-10-616(a), (5) driving under the influence of an intoxicant or dru g, sixth offense, in violation of Tennessee Code Annotated section 55-10-401(a) (2), and (6) d riving while under the influence of an intoxicant or drug , sixth offense, i n violation of Tennessee Code Annotated section 55-10-401(a) (1). The defendant was later

indicted in a six-cou

nt indictme

nt for all the above

offense s, with Counts 2, 3, 5, and 6 specifically

alleging five prior D.U.I .s.
Pursuant to a negotiated plea agre

ement on June 14, 2001, the defendant entered a guilty

plea to two count s of driving after having bee n declared a habitual motor vehicle offende r and two c ounts of D.U.I ., both judg

ments ref lecting sixth offen se. The d

efenda nt agreed to the f

ollowing terms: Counts 1 and 4 - Defendant will serve one y ear in the Department of Correction. Counts 2 and 5 - Defendant will serve one y ear in the Department

of Correction with
a minimum service

of 150 da

ys t o be serv ed day

for day witha $3,000 fine and all drivin g privil eges r

evoked f or five y ears. Counts 3 and 6 - Nolle Prosequi Defendant will serve counts 1 and 2 concurre ntly. Defendant

will serv e counts 4 and 5 concurrent with each other, but consec utive to Counts 1 and 2.

The defendant’s effective sentenc e, therefore, is two y ear s incarceration in the Tennessee Department

of Correction with 300 days to be se rved day f or day as required under Tennessee Code Annotated section 55-10-403(a)(1). The def endant r equeste d the tria

l court to c onsider h

is eligib ility to serve hi s sentenc e in the Com munity Corrections Program. Upon the defendant’s motion, the trial court issued an Or der o f Reference to the Community Corrections Program to inquire into the def endant’s crim

inal histor y, s ocial hist

ory , and ment

al health history in order to deter mine eligibility for this alternative sentence.

Pursuant to the Order of Reference, the tria l court ordered theQuinco Mental Health Center to perform a mental examination for use in determining the defendant’s eligibility for this alternative-3-

senten c e. However, the defendant failed to complete the mental examination conducted by Dr. Gallaher, a staff me mber of the Quinco Mental Health Center. I n his letter to the trial court, Dr. Gallaher stated tha t the def endant “ failed to

reveal any sign and /or sy mptom that w ould over

rulehis right to declin e furthe

r evalua tion.” Dr . Gallahe

r stated t hat he could not complete the program’s mental health examination due to the defendant’s lack of participation.

At his sentencing hearing, the defendant expressed his dissatisfaction over inconsequential portions of his pre sentenc ing rep ort. Howe ver, the defenda nt did not tes tify and offe red no proof to supp ort his request for alternative sentencing . After discussing his dissatisfaction with the presentencing report, the defe ndant stated that he could “live with it.”

At the sentencing hearing, the tria l court consider ed the g uilty plea, the present ence re port, and the lette

r from Dr . Gallahe

r in eval uating t he defe ndant’s m anner of

service. The trial court found that in light of the defendant’s extensive criminal history, he was not eligible for alternative sente ncing. Thus, the trial court ordere d the defendant to serve his sentence in the Tenne ssee Department of Correction. II. Analysis

A. Issue Presented The sole issue in this appeal is whether the trial court erred in determining the defe ndant’s
manner of service. The defendant arg ues that he is an eligible cand idate for s entencing under the Tennessee Communit

y C orrections Act, Tenn. Code Ann. § 40-36-101, et seq. The def endant argues that he should not have been sentenced to the Tennessee Department of Correction. We disagree and affirm t he judg ments of th

e trial c ourt.
B. Standard of Review

When an accused challenges the length, range or

manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with the presumption that the determinations made by t he tr ial cour t are correct. See Tenn. Code Ann. §§ 40-35-401(d), 40-35-402(d) (1997). If our revi ew “re flects that the trial court followed the statutory sentencing procedure, imposed a lawful sentenc e after

having given d ue consid eration and prop er weig

ht to the factors and principles set out under the sentencing law, and that the trial court’s findings are adequately

supported by the record, then we may not modify the sentence even i f we wou ld have preferred a diffe rent result.” Statev. Pike , 978 S.W.2d 90 4, 926-27 (Tenn. 1 998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). On appeal, the defendant

has the burden of establishing that the sentence is improper. See Tenn. Code Ann. § 40-35-4 01(d), Se ntencing Comm’n Co mme nts. To conclude whether the defendant has met his burden, this Court must consider the follow in g: (a ) t he ev id en ce , i f a ny, received at tri al and sente ncing h earing; (b) the presentence report; (c) the principles of sentencing-4-

and argume

nts as to se

ntencing alterna tives; (d) the nature and characteristics of the c riminal conduct involved; (e ) any statutory , mitigating and/or enhancement factors; (f) any statement made by the def endant regarding sentencing ; and (g) the potential or lack of potential for re habilitat ion o r treatme nt. State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210. We conclude that the defendant has not met his burden of establishing that his sentence is improper.
C. Sentence

The defendant entered into a plea ag reemen t in which he agr

eed that he was g uilty of his sixth and seve

nth DUI offense s, as well

as to driving on two occasions after being decla red a habitual motor vehicle offender. All of these offense s are Class E fe lonies. The sentences imposed by the trial court are the minimum sentences for the crimes cha rged.

Where the trial court complies with the purposesand princ iples of th e sentencing act and its findi ngs are supported by

the record, the weight given each fa ctor is left to the discretion of the trial court. State v. Robinson , 971 S.W.2d 3 0, 48 (Te nn. Crim. A

pp. 1997) ; see Tenn. Code Ann. § 40- 35-210, Sentencing Comm’n Comments. Although the defendant claims that the State did not adequa tely introduce any

evidenc e to show th at his confinement is necessary to protect society, we disagree. The purp ose of recording the court’s rea soning is to guarantee the prepara tion of a proper record for appe llate review. State v. Er

vin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). The trial court found that the defendant’s prior criminal history is indicative of an inability to rehabilitate and demonstrates the defe

ndant’s i neligib ility

for the Co mmunity

Correct ions Prog ram. We a

gree t his sentence is support

e d by t he evide nce submitted at the

sentenc ing hea

ring and is consis tent with sentencing principles.
D. Manner of Service

The defendant argues that the trial cour t erred in not sentencing him purs uan t to the Tennessee Community Corrections Act, Tenn. Code Ann. § 40-36- 101, et seq. Defend ants falling within the “standard offender” class and convicted of a non-violent “Class C, D, or E felony”are presumedto be favorable candidates for alter native sentencing options “in the absence of evidence to the contr

ary .” Tenn. Co de Ann. § 40-35-10 2(6). Ho wever, if the tri al court finds the re exists sufficient evidenc e to rebu

t t he presu mption that the defendant is a successful candidate for rehabilitation, the court is not re quired to follow alternative sentencing require ments. Under Tennessee Code Annotated section 40-35-102(6), the statutory presumption of an a l ternative sentence may

be overcome if: (A) [c]onfinem

ent is nec essary

to protect society by

restraining a defendant who has a long h istory of crimin al conduct;-5-

(B) [c]onfinement is necessary to avoid de preciating the

seriousness of the offense
or confinement

is partic ularly

suited to provide an effective deterrenc e to others likely to commit similar offenses; or (C) [m]e asures less restrictive than confinement have fr equently or recently bee

n applied unsuccessfully

to the defendant. Tenn. Code Ann. § 40-35-103(1)(A) - (C).

The trial court found that thi s defendant was entitled to the presumption, but that presumption
was overcome by

his prior criminal record. This Court has held in the past that offenders who meet the criter ia for a

lte rnative sentencing are not automatically entitled to alternative sentencing. See Statev. Nunley , 22 S.W.3d 282, 285 (Tenn. Crim. App. 1999), perm. app. denied (Tenn. 2000). This defenda

nt has an e

xtensive his tory

of drivin g under

the influe

nce. The defenda nt’s last viola tion occurr

ed while o n bond fro m a D.U.I . arres t only three mo nths prior . We agr ee th at th e defendant’s voluminous criminal record supports t

he conc lusion tha

t confine me nt is need

ed to protect society from fur

ther violations. See State v. Cr oss , 1999 Tenn. C rim. App. LEXI S 1191, No. E1998-00364-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Dec. 6, 1999), perm. app. denied (Tenn. 2000). The defendant argues that he is “amenable to rehabilitation” and should be eligible for the Commu nity

Corre ction s Pro gram. T he defe ndant ’s con cluso ry statem ents r egardin g his amenabi lit y for rehabilitation ar

e not s uppor ted by

his history

or his fa ilure to c ooperat

e with men

tal healt h personne l. Furt herm ore, the d efendant ’s fa

ilure to co mplet

e the menta l hea lth exa m ination demonstrates his lack of commitment to rehabilitation.
III. Conclusion Accordingly , we affirm the judgment of the trial court.



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_______________ JOHN EVERETT WILLIAMS, JUDGE