# FILED
June 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MAY SESSION, 1999
STATE OF TENNESSEE, ) C.C.A.NO. 02C01-9810-CC-00324 ) Appellee, ) HARDIN COUNTY ) V. ) HON. C.CREED McGINLEY, JUDGE ) LAWR ENC E EU GEN E WH ITE, ) (HA BITUAL MOTOR VEHICLE ) OFF ENDER STA TUTE; P OSSESSI ON Appe llant. ) OF DR UG PAR APHER NALIA)

FOR THE APPELLANT : FOR THE APPELLEE : GUY T. WILKI NSON PAUL G. SUMMERS Distri ct Public

Defender Attorney General& Reporter RICHARD W.DeBERRY J. ROSS DYER Assistant Public Defender Assistant Attorney General 117 Fo rrest Ave nue N orth 2nd Floor, Cordel l Hull Bui lding Camden, TN 38320 425 Fifth Avenue North Nashvill e, TN 37243 G. ROBERT RA DFORD District Attorn ey Ge neral JOHN W. OVERTON,JR. Assistant Distri ct Attorney General P.O. Box 484 Savannah, TN 38372-0484

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defen dant, La wrence Eugen e W hite , appe als as o f right fro m his sentencing in the Ha rdin County Circui t Court. Defendant pled gui lty pur suant to a plea agreem ent with the State to o ne (1) co unt of violation of t he habitua l motor vehicle offende r statute (C ount O ne) and one (1) c ount o f possession of drug para phern alia (Coun t Two). In re turn, Defe ndant re ceived a one (1) ye ar, six (6 ) month sentence for

Count One and a sentence of eleven ( 11) months, twent y-nine (29) days for Count

Two. In addit ion, Defendant agree d to pa y a fine in the amount of $750.00. The trialcourt was to determine the manner of servi ce of thesentence. Defe ndan t’s sole issue on appeal is the t rial cour t’s deni al of al ternati ve sentencin g in the form of Com munity C orrection s. W e affirm the judgm ent of the tria l court.

When an accused challenges the length, range or the manner of service of a sentence, this court h as a du ty to condu ct a de novo review of the sentence wi th a presumption that the determinati ons made by the tri al court ar e correct. Tenn. Code Ann. § 40-35-40 1(d). This presum ption is “conditioned upon the affirm ative showing in the record that the trial cou rt cons idered the se ntenc ing prin ciples and a ll relevant facts and circum stances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, t his court must consider: (a) the evidence, if any receiv ed at the trialand the sentencing hearing; (b)the presentence report; (c) theprincipl es of sentenci ng and arguments as to sentencing alternatives; (d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory mitigati ng orenhancement factor s; (f)any statement t hat the defen dant m ade o n his-3-

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. Code Ann. § § 40-35-1 02, -103 , and -21 0; see State v. S mith , 735 S.W.2d 859, 863 (T enn. Crim. A pp. 1987).

If our rev iew refle cts tha t the tria l court followed the statut ory sentenci ng procedure, impo sed a lawful s enten ce afte r havin g giv e n due considerat ion and properweight to the factors and principles set out u nder the senten cing law, and made finding s of fac t adeq uately supported by t he record, t hen we may not mo dify the senten ce even if we wou ld have p referred a different res ult. Sta te v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

A t the senten cing hea ring, Defe ndant te stified that he moved to Hardin Coun ty in 1994 as a disabled Ameri can veteran. Defendant descri bed that when he takes his medications, the “l aw thinks I’m drunk.” While Defendant denied t hat he drank thatmuch, he stated he has to drive to Mem phis every week to go to th e VA hosp ital. To subs idize h is incom e, he p erform ed m echa nical m ainten ance on veh ic les. O n the evening in questio n, Defen dant wa s driving so meon e’s truck w ith faulty brakes to his ho me to perfor m the repair s. Bec ause the brakes wer e not funct ioning properly, he was unable to come to a compl ete stop at the stop si gn and he was pulled over by the police a s a result. In summ ation, Defend ant stated, “I don’t rape, steal, rob or none of t he above. I’ m just try ing to get along and sooner

or later d ie from what I go t in Vietnam.”

The State did not

present any pr

oof at the s entencing hea ring o ther than Defendant’s presentence report. The report included the foll owing convictions: Habitual Moto r Vehicle Of fender Viol ation 1/10/96-4- (Arrest 6/

9/95) Driving While Intoxicated, Third Offense 1/10/96 (Arrest 6/

9/95) Driving While I ntoxicated 6/13/88 (Arrest 5/

29/88) Driving on Revoked License 9/23/87 (Arrest 2/

2/87) Driving on Revoked License 6/20/87 (Arrest 1/

29/87) Driving on Revoked License 12/31/86 (Arrest 9/

30/86) In the prese ntenc e repo rt, Defe ndan t explain ed in h is state men t that the vehicle he
was drivi ng at the time of the of fense was no t his own, a nd neithe r was the pipe with marijuana. He fur ther ex plaine d that b ecau se he did not have any fa mily mem bers in the area that could drive, he had to drive back and forth to th e VA Hosp ital in Memphis. Finally, th e prese nte nce report verifi ed that Defendant did not have a stable history of employment, al though he received assi stance fr om the governm ent.

The trialcourt found that Defendant had a prior

history of driving i nfractions, includi ng a prior felony convi ction fo r violat ion ofthe habit ual motor vehi cle offe nder statute. In consider

ation of t he record as a whol e, the court held that

his prior record outweighed any presumption f or alternative sentencing. Defendant’s prior record, combined with his admissio n of contin ued fe lony vio lations of the la w by dr iving his vehicle weekly to Memphis, were suff icient reason to the trial cou rt to deny any form of alternative senten cing. See Tenn. C ode Ann . § 40-35-103 (1)(A) and (C ).

A defen dant w ho “is an especially mitigated or standard of fender convi cted of
a Class C, D or E fel ony is presumed to be a favo rable candida te for alternative-5-

sentencing option s in the abse nce o f evid ence to the contrary. ” Tenn. Code Ann. § 40-35-102 (6). Our sentencing l aw also provi des that “conv icted fe lons committi ng the most severe of

fenses, possess ing crimi nal histories evi ncing a clear disregard forthe laws and moral s of societ y, and evi ncing fai lure of past effor ts at rehabilitation, shall be given first priori ty r egarding sentences invol ving incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to eight(8) years or l ess who is not an offender for who m inc arcera tion is a priority is p resum ed eligi ble for alternati ve sentencin g unless suff icient evidence rebut

s the presu mptio n. Howe ver, the ac t does no t provide tha t all offende rs who m eet t h e criteria are en titled to s uch re li ef; ra ther, i t requir es that sentencing issues be determined by the facts and circu mstan ces pre sented in each c ase. See State v. Taylor , 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).

W hile the Com munity Co rre ct ions Ac t allows ce rtain eligible o ffenders to participate in community-bas ed alternat ives to incarceration, a defendantmust first be a suitable ca ndidate for alternative senten cing. Te nn. Co de Ann . § 40-36-103. W hile Defendant does meet t he eligi bilit y requirements of Tennessee Code Annotated section 40- 36-10 6(a) , the Ac t does not pro vide tha t the offe nder is autom atically entitled to su ch relief. State v. Grand berry , 803 S.W.2d 706, 707 (Tenn. Crim. A pp. 199 0); State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Cr im. App. 1987). A defendant’s

potentialor lack of

potentialforrehab ilitation w as ap propr iately considered by the trial court in determining t hat Defendant shoul d not be grantedan alterna tive sen tence . Tenn . Cod e Ann . § 40-3 5-103 (5). As the trial c ourt no ted, it
was onl y two ( 2) years ag o th at t he De fen dant commi tted the exact same felony offense, violat ion ofthe habit ual motor vehicle offender sta tute. In addition, where the defendant’s

history indicates a clear disre gard for th e laws an d mora ls of society-6-

and a failure of pas t efforts to rehab ilitate, the trial cou rt did not abu se its discreti on in denying an al ternati ve sentence. State v. Chrisman , 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994). As admitted by t he Defendant, hehas co ntinue d to co mm it this felony offense o n a regu lar basis. This indicates a poor potent ial for rehabilitation.

It is Defe nd ant’s burden to prove his suitability or need for alternative sentencing, and Defendant has failed to meet this bur

de n. Ashby , 823 S.W.2d at 169. W e affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JOE G. RILEY, Judge