FILED

June 25, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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 

)

LAWRENCE EUGENE WHITE, ) (HABITUAL MOTOR VEHICLE 

) OFFENDER STATUTE; POSSESSION

 Appellant. ) OF DRUG PARAPHERNALIA) 

FOR THE APPELLANT: FOR THE APPELLEE:

GUY T. WILKINSON PAUL G. SUMMERS 

District Public Defender Attorney General & Reporter

RICHARD W. DeBERRY J. ROSS DYER

Assistant Public Defender Assistant Attorney General

117 Forrest Avenue North 2nd Floor, Cordell Hull Building

Camden, TN 38320 425 Fifth Avenue North 

Nashville, TN 37243

G. ROBERT RADFORD

District Attorney General 

JOHN W. OVERTON, JR.

Assistant District Attorney General

P.O. Box 484 

Savannah, TN 38372-0484

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Lawrence Eugene White, appeals as of right from his

sentencing in the Hardin County Circuit Court. Defendant pled guilty pursuant to a

plea agreem ent with the State to one (1) count of violation of the habitual motor

vehicle offender statute (Count One) and one (1) count of possession of drug

paraphernalia (Count Two). In return, Defendant received a one (1) year, six (6)

month sentence for Count One and a sentence of eleven (11) months, twenty-nine

(29) days for Count Two. In addition, Defendant agreed to pay a fine in the amount

of $750.00. The trial court was to determine the manner of service of the sentence.

Defendant’s sole issue on appeal is the trial court’s denial of alternative sentencing

in the form of Community Corrections. We affirm the judgment of the trial court.

When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presum ption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and characteristics of the criminal conduct involved; (e) any statutory

mitigating or enhancement factors; (f) any statement that the defendant made on his
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own behalf; and (g) the potential or lack of potential for rehabilitation or treatm ent.

Tenn. Code Ann. §§ 40-35-102, -103, and -210; see State v. Smith, 735 S.W.2d

859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may not modify

the sentence even if we would have preferred a different result. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim. App. 1991).

At the sentencing hearing, Defendant testified that he moved to Hardin County

in 1994 as a disabled American veteran. Defendant described that when he takes

his medications, the “law thinks I’m drunk.” While Defendant denied that he drank

that much, he stated he has to drive to Memphis every week to go to the VA hospital.

To subsidize his incom e, he performed mechanical maintenance on vehicles. On

the evening in question, Defendant was driving someone’s truck with faulty brakes

to his home to perform the repairs. Because the brakes were not functioning

properly, he was unable to come to a complete stop at the stop sign and he was

pulled over by the police as a result. In summ ation, Defendant stated, “I don’t rape,

steal, rob or none of the above. I’m just trying to get along and sooner or later die

from what I got in Vietnam.” 

The State did not present any proof at the sentencing hearing other than

Defendant’s presentence report. The report included the following convictions:

Habitual Motor Vehicle Offender Violation 1/10/96
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(Arrest 6/9/95)

Driving While Intoxicated, Third Offense 1/10/96

(Arrest 6/9/95)

Driving While Intoxicated 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 presentence report, Defendant explained in his statement that the vehicle he

was driving at the time of the offense was not his own, and neither was the pipe with

marijuana. He further explained that because he did not have any family members

in the area that could drive, he had to drive back and forth to the VA Hospital in

Memphis. Finally, the presentence report verified that Defendant did not have a

stable history of employment, although he received assistance from the governm ent.

The trial court found that Defendant had a prior history of driving infractions,

including a prior felony conviction for violation of the habitual motor vehicle offender

statute. In consideration of the record as a whole, the court held that his prior record

outweighed any presumption for alternative sentencing. Defendant’s prior record,

combined with his admission of continued felony violations of the law by driving his

vehicle weekly to Memphis, were sufficient reason to the trial court to deny any form

of alternative sentencing. See Tenn. Code Ann. § 40-35-103(1)(A) and (C).

A defendant who “is an especially mitigated or standard offender convicted of

a Class C, D or E felony is presumed to be a favorable candidate for alternative
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sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102(6). Our sentencing law also provides that “convicted felons committing

the most severe offenses, possessing criminal histories evincing a clear disregard

for the laws and morals of society, and evincing failure of past efforts at

rehabilitation, shall be given first priority regarding sentences involving

incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant sentenced to

eight (8) years or less who is not an offender for whom incarceration is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offenders who m eet the

criteria are entitled to such relief; rather, it requires that sentencing issues be

determined by the facts and circumstances presented in each case. See State v.

Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

While the Community Corrections Act allows certain eligible offenders to

participate in community-based alternatives to incarceration, a defendant must first

be a suitable candidate for alternative sentencing. Tenn. Code Ann. § 40-36-103.

While Defendant does meet the eligibility requirements of Tennessee Code

Annotated section 40-36-106(a), the Act does not provide that the offender is

autom atically entitled to such relief. State v. Grandberry, 803 S.W.2d 706, 707

(Tenn. Crim. App. 1990); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.

1987). A defendant’s potential or lack of potential for rehabilitation was appropriately

considered by the trial court in determining that Defendant should not be granted an

alternative sentence. Tenn. Code Ann. § 40-35-103(5). As the trial court noted, it

was only two (2) years ago that the Defendant committed the exact same felony

offense, violation of the habitual motor vehicle offender statute. In addition, where

the defendant’s history indicates a clear disregard for the laws and morals of society
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and a failure of past efforts to rehabilitate, the trial court did not abuse its discretion

in denying an alternative sentence. State v. Chrisman, 885 S.W.2d 834, 840 (Tenn.

Crim. App. 1994). As admitted by the Defendant, he has continued to commit this

felony offense on a regular basis. This indicates a poor potential for rehabilitation.

It is Defendant’s burden to prove his suitability or need for alternative

sentencing, and Defendant has failed to meet this burden. Ashby, 823 S.W.2d at

169. We affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge

___________________________________

JOE G. RILEY, Judge