IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 22, 2010

 STATE OF TENNESSEE V. RICKY LANE MCKNIGHT

Direct Appeal from the Circuit Court for Marshall County

No. 2010-CR-7 Robert Crigler, Judge

No. M2010-01092-CCA-R3-CD - Filed December 1, 2010

A Marshall County grand jury indicted the Defendant, Ricky Lane McKnight, for violation

of the Habitual Motor Offender Act and driving on a revoked license. The trial court ordered

the Defendant to serve an effective sentence of three and one-half years. On appeal, the

Defendant argues that the trial court’s sentence is excessive. After a thorough review of the

record and the applicable law, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES

and JERRY L. SMITH, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Ricky Lane McKnight.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant

Attorney General; Charles F. Crawford, Jr., District Attorney General; and Weakley E.

Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A. Guilty Plea Hearings

A Marshall County grand jury indicted the Defendant for violation of the Habitual

Motor Offender Act, a Class E felony, and driving on a revoked license, a Class A

misdemeanor. At the Defendant’s February 2010 plea submission hearing, the State

summarized the evidence supporting the Defendant’s charges as follows:
These events occurred on December 6, 2009, here in Marshall County,

Tennessee. Prior to that, out of this court, the [D]efendant had an order

declaring him to be an habitual motor offender.

Also, his driver’s license was revoked, and he had been convicted of driving

on a revoked driver’s license . . . seven prior times before this.

. . . .

On [December 6 2009], a city officer sees the [D]efendant driving an

automobile on the city highways, with a taillight out. He pulls the taillight

over; discovers that the driver is [the Defendant].

[The Defendant] tells him he doesn’t have a driver’s license. When the officer

runs it, he determines exactly what I have told you, that his license has been

revoked.

The Defendant plead guilty to violation of the Habitual Motor Offender Act and to driving

on a revoked license, with the sentences to be determined by the trial court.

B. Sentencing Hearing

The Defendant was sentenced for the above named convictions on April 28, 2010. The

following evidence was presented at the sentencing hearing: The parties agreed that, based

upon the Defendant’s criminal history, he was a Range II offender. The State entered into

evidence the facts read into the record during the plea submission hearing and the Presentence

Investigative Report.

Loranda Borja, who works for the Tennessee Probation and Parole Department,

testified that she prepared the Presentence Investigation Report for this case. Borja testified

that the Defendant gave the following statement as to the events underlying these charges: “I

wasn’t driving a car that day. Howard Bryant was with me. He was driving the car, and he

is a diabetic. He had a diabetic spell, and the reason I was driving was to get him home and

get his medication.” Borja agreed that the police officer’s report, which the presentence

report included, indicated that the Defendant’s vehicle was “released to Howard Bryant, at the

owner’s request.”

Borja testified that the Defendant met with her one week after he entered a guilty plea

for the charges in this case while released from jail on bond. During this interview, the

Defendant said that he began using alcohol at age fourteen and last used alcohol the Friday

night prior to her interview with him. The Defendant told Borja that he typically drinks a

twenty-four pack of beer every Friday night. The Defendant said that he first used marijuana
at age fourteen and reported smoking marijuana every Friday night including the Friday night

prior to his interview with Borja.

Borja testified that she had difficulty contacting the Defendant’s prior employers. She

described his work history as “odd-job kind of things” and said that he had not worked at all

during the current year.

On cross-examination, Borja agreed that the Defendant had only one conviction for

driving under the influence and that his last criminal conviction was in 2001.

Larry Hazelwood, a Lewisburg City Police Department officer, was the officer who

arrested the Defendant on these charges. The officer stated that he had no indication that

Howard Bryant, the individual to whom the Defendant’s car was released, was experiencing

a serious medical condition, as the Defendant contended in his interview with Borja.

The Defendant testified that he was forty-nine at the time of the sentencing hearing and

lived with his “boss man,” Jimmy Bryant. The Defendant testified that, for three or four

months, he had full-time employment cleaning theaters during the night. The Defendant

explained that he rides to and from work with his “boss man.” The Defendant acknowledged

that he had “a lot of driving problems” but noted that his last conviction was in 2001. The

Defendant said that he knew he was not supposed to be driving but received the 2001

conviction because he was the “only kid at home” and helping his mother pay bills so he had

to drive to and from work.

The Defendant agreed that he drinks a twenty-four pack of beer at home on Friday

nights but said that he neither drives after drinking nor drinks during the week. As to the

charges against him in this case, the Defendant said:

I have learned a lot. I sure know I should not have been driving. Like I said,

it was a have-to case, or I wouldn’t have done it, if it wouldn’t have had to be

a have-to. I hadn’t drove in 10 years. I wouldn’t have been driving then. I

don’t drive no more, none.

On cross-examination, the Defendant agreed that smoking marijuana was illegal and

that he smoked marijuana while released on bond, two days after pleading guilty to the

charges in this case.

At the conclusion of the hearing, the trial court merged the driving on a revoked license

conviction with the violation of the habitual motor offender act conviction and sentenced the

Defendant to serve three years and six months. It is from this judgment that the Defendant

now appeals.
II. Analysis

On appeal, the Defendant claims that the trial court’s sentence of three and one-half

years to serve in jail is excessive in light of the following facts: he was polite and forthright

with the probation officer, he is employed, his last conviction was in 2001, and on the night

in question, he drove only because his companion was experiencing a diabetic episode.

When a defendant challenges the length, range or manner of service of a sentence, this

Court must conduct a de novo review on the record with a presumption that “the

determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-

35-401(d) (2009). As the Sentencing Commission Comments to this section note, the burden

is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,

Sentencing Comm’n Cmts (2009). This means that if the trial court followed the statutory

sentencing procedure, made findings of facts which are adequately supported in the record,

and gave due consideration to the factors and principles relevant to sentencing under the

Sentencing Act, the appellate court may not disturb the sentence even if a different result was

preferred. Tenn. Code Ann. § 40-35-103 (2009); State v. Ross, 49 S.W.3d 833, 847 (Tenn.

2001). The presumption does not apply to the legal conclusions reached by the trial court in

sentencing a defendant or to the determinations made by the trial court which are predicated

upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001);

State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d

922, 929 (Tenn. Crim. App. 1994).

The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe

the process for determining the appropriate length of a defendant’s sentence. Under the Act,

a trial court may impose a sentence within the applicable range as long as the imposed

sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)

(2009); see State v. Carter, 254 S.W.3d 335, 343 (Tenn.2008). The Tennessee Code allows

a sentencing court to consider the following enhancement factors, among others, when

determining whether to enhance a defendant’s sentence:

(1) The defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range; ...

(8) The defendant, before trial or sentencing, failed to comply with the

conditions of a sentence involving release into the community;

T.C.A. § 40-35-114(1) and (8) (2009). If an enhancement is not already an essential element

of the offense and is appropriate for the offense, then a court may consider the enhancement

factor in its length of sentence determination. T.C.A. § 40-35-114 (2009). In order to ensure

“fair and consistent sentencing,” the trial court must “place on the record” what, if any,
enhancement and mitigating factors it considered as well as its “reasons for the sentence.”

T.C.A. § 40-35-210(e). Before the 2005 amendments to the Sentencing Act, both the State

and a defendant could appeal the manner in which a trial court weighed enhancement and

mitigating factors it found to apply to the defendant. T.C.A. § 40-35-401(b)(2) (2009). The

2005 amendments deleted as grounds for appeal, however, a claim that the trial court did not

properly weigh the enhancement and mitigating factors. See 2005 Tenn. Pub. Acts ch. 353,

§§ 8, 9. In summary, although this Court cannot review a trial court’s weighing of

enhancement factors, we can review the trial court’s application of those enhancement factors.

T.C.A. § 40-35-401(d) (2009); Carter, 254 S.W.3d at 343.

The Defendant, a Range II offender, was sentenced for a violation of the habitual

motor offender act, a Class E felony, which has a sentencing range of two to four years. See

T.C.A. § 40-35-112(b)(5).

The trial court applied two enhancement factors: (1), that the Defendant had a previous

history of criminal convictions or criminal behavior; and enhancement factor (8), that the

Defendant, before sentencing, failed to comply with the conditions of a sentence involving

release into the community. T.C.A. § 40-35-114(1) and (8). The trial court applied mitigating

factor (1), that the Defendant neither caused nor threatened serious bodily harm, and the

“catch-all” mitigating factor (13), citing the fact that the Defendant pled guilty sparing the

taxpayers the expense of trial. T.C.A. § 40-35-113 (1) and (13). The trial court stated that it

placed “greater weight” on the Defendant’s prior record than on the mitigating factors present

in the Defendant’s case. Based upon its findings, the trial court sentenced the Defendant to

three years and six months for the Class E felony conviction.

The Defendant does not specifically challenge the trial court’s application of

enhancement factors and mitigating factors, but makes a blanket assertion that the sentence

is excessive. In reviewing the sentence, we will consider both the trial court’s application of

enhancement factors and its denial of alternative sentencing, as both go to the Defendant’s

complaint that the sentence is excessive. Our review of the record reveals that the trial court

correctly applied enhancement factor (1). The Defendant, who was sentenced as a Range II

offender, had four prior felony convictions. Additionally, the Defendant had seven

convictions for driving with a revoked license, four convictions for failure to carry a license,

one conviction each for driving under the influence, leaving the scene of an accident, driving

with a suspended license, disturbing the peace, and assault. Also, he admitted that he used

illegal drugs. This extensive criminal conduct demonstrates that the Defendant has a

“previous history of criminal convictions or criminal behavior, in addition to those necessary

to establish the appropriate range.” See T.C.A. § 40-35-114(1). As such, the trial court

properly applied enhancement factor (1) to the Defendant’s conviction.

Further, the record reflectsthat the Defendant wassentenced to community corrections

for his 2001 conviction for violation of the Habitual Motor Offender Act, and later the
Defendant’s community corrections sentence was revoked. Thus, the record supports the trial

court’s finding that, “before trial or sentencing, the Defendant failed to comply with the

conditions of a sentence involving release into the community.” See T.C.A. § 40-35-114(8).

Assuch, the trial court properly applied enhancement factor (8) to the Defendant’s conviction.

We now turn to the issue of alternative sentencing. Under the 2005 amendments to the

Sentencing Reform Act, a defendant is no longer presumed to be a favorable candidate for

alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A. §

40-35-102(6) (2006)). Instead, a defendant not within “the parameters of subdivision (5) [of

T.C.A. § 40-35-102], and who is an especially mitigated or standard offender convicted of a

Class C, D or E felony, should be considered as a favorable candidate for alternative

sentencing options in the absence of evidence to the contrary.” Id. (footnote omitted). T.C.A.

§ 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note that a trial court is “not

bound” by the advisory sentencing guidelines; rather, it “shall consider ” them. T.C.A. §

40-35-102(6) (emphasis added).

A defendant seeking probation bears the burden of “establishing [his] suitability.”

T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, “even though

probation must be automatically considered as a sentencing option for eligible defendants, the

defendant is not automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303

(2009), Sentencing Comm’n Cmts.

When sentencing the defendant to confinement, a trial court should consider whether:

(A) Confinement is necessary to protectsociety by restraining a defendant who

has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103(A)-(C) (2009). In choosing among possible sentencing alternatives, the

trial court should also consider “[t]he potential or lack of potential for the rehabilitation or

treatment.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they

relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim.

App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v. Zeolia,

928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn.

Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.
At the sentencing hearing in this case, the trial court sentenced the Defendant as a

Range II, multiple offender to a sentence of three years and six months of incarceration. The

court then set out to determine the manner of service and made the following findings:

When your license is revoked and then, later, when you’re declared an habitual

traffic offender, the law expects you not to ignore that. It is not your decision

just to choose to drive in violation of that. It is [a] criminal offense[].

Confinement is needed to avoid depreciating the seriousness of the offense. 

And more applicable is less restrictive measures than confinement have

frequently or recently been applied unsuccessfully to the [D]efendant. The

[D]efendant has been on probation many times before. Obviously, that has not

deterred him. And even jail sentences have not deterred him from continuing

to violate the law.

Also, looking at things like [his admission of] smoking marijuana after he pled

guilty in this case.

. . .

It appears he has been to Buffalo Valley before, so that didn’t do any good.

So I am going to deny alternative sentencing.

Based upon its findings under Tenn. Code Ann., section 40-35-103, the trial court denied the

Defendant an alternative sentence.

The record does not preponderate against the trial court’s findings. The Defendant was

declared a habitual motor offender on May 18, 1992. It is after this date that the Defendant

acquired the seven convictions for driving on a revoked license, the DUI conviction, and his

previous felony conviction for violation of the Habitual Motor Offender Act. Many of these

sentences involved a combination of jail time and supervised probation. The Defendant, in his

interview for the presentence report, both denied driving and justified his violation of the law

as necessary due to his companion’s illness. Further, he later requested the officer release his

vehicle to the same person he now claims was too ill to drive. Two days after pleading guilty

to these crimes and while released on bond, the Defendant engaged in additional criminal

activity by smoking marijuana. Finally, the presentence report indicates a failed attempt at a

recent probated sentence. Thus, the record adequately supports the trial court’s findings that

confinement is necessary to avoid depreciating the seriousness of the offense and least

restrictive measures have been unsuccessful. We conclude that, in ordering confinement, the

trial court considered the pertinent facts of this case and appropriate sentencing principles. As
such, its denial of alternative sentencing is presumptively correct. See T.C.A. § 40-35-401(d);

Mencer, 798 S.W.2d at 549. The Defendant is not entitled to relief on this issue.

III. Conclusion

After a thorough review of the record and the applicable law, we conclude that the trial

court adhered to proper statutory sentencing procedures and considered appropriate factors

when it imposed its sentence. As such, we affirm the trial court’s judgment.

_________________________________

ROBERT W. WEDEMEYER, JUDGE