# FILED

July 22, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JANUARY

1997 SESSION

STATE OF TENNESSEE, ) NO. 03C01-9602- CC-00067 ) Appellee ) BLOUN T COUN TY ) V. ) HON. D. KELL Y THOMAS ) JUDGE RODN EY A. WHITE , ) ) (Senten cing) Appellant )

FOR THE APPELLANT : FOR THE APPELLEE : Raymond Mack

Garner John Knox Walkup District Public Defender Attorney Gen eral and Repor ter 318 Court Street 450 James Roberts on Parkway Maryv ille, Tennessee 37804-4912 Nashvil le, Tennessee 37243- 0493 Natalee Staats Hurley Lisa A. Nay lor Assistant Publ ic Defender Assistant Att orney Gener al 318 Court Street 450 James Roberts on Parkway Maryv ille, Tennessee 37804-4912 Nashvil le, Tennessee 37243- 0493 Michael L. F lynn Distric t Attorney General 363 Court Street Maryv ille, Tennessee 37804-5906 Charles A. C arpenter Assistant D istrict A

ttorney Gener

al 363 Court Street Maryv ille, Tennessee 37804-5906

OPINION FILE D: Affirmed W illiam M. B arker, Ju dge Opinion2 The appellant, Rodn ey A. Wh ite, appeals as of right his sentence following his plea of guilty for driving on a revoked license in violation of the Motor Vehicle Habitu al Offende rs Act, a Class E felony. The appellant argues on appeal that the trial court erred in re fusing to gr

ant him full probat ion or in the alternative by not all owing hi m to serve his sentence on communit y correc tions. Additi onally, th e appellant arg ues that the trial c ourt erred i n ordering a period of incar ceration followed by community corrections . Having reviewed the record an d finding no re versibl e error, we affirm the trial cour t’s judgment. On August 7, 1995, the app ellant was indicted for driving on a revoked license in violation of the Motor Vehicle Habi tual Offenders Act. On October 17, 19 95, the appellant pled g uilty to the charged offense and the trial c ourt scheduled a sentencing hearing on N ovember 28, 1995. At that hearing , the appellant t estified that he was a recov ering alc oholic and had recently

started attendi ng outpatient al coholic dependenc y progr ams and AA meetings. The appel lant, who at the time of the heari ng was t hirty- four years ol d, stated that hebegan drink ing w hen he was seventeen a nd that this was t he firs t time he had sought tr

eatment for his alcohol dependency. He also tes tified that on previous occasions he had completed sentence s of probation w ithout any v iolations. The appellant’s w ife and mother both tes tified that sinc e the appellant had begun treatment for his alcohol addict ion, he was a different person. The trial court considered the ap pellant’s testimony and that of his family members, but also noted that the appell ant had a sign ificant histor y of crimina l behavior including six D.U.I. convictions, five driving on a revoked license convictions, one sexual bat

tery conv iction, more t han twenty public intox ications, and one habitual motor vehic le offender adjudicati on. The court or dered the appella nt to serv e a twoyear sentenc e as a Range I I multiple offender w ith six months confinement in th e county jai l followed b y eighte en months on community correctio ns.3 The appellant first

argues that the trial c ourt erred by refusing to al low him to serve his whole sentence on probation or on com munity corrections. This issue is without mer it. When an appellant complains of his or her sentence, we must conduct a de

novo review with a pr

esumption of correc

tness. Tenn. Code Ann. § 40-35-401( d) (1990). The burde n of showing that the sentence is improper is upon the appeal ing party. Id. (Sentencing Commission Comme nts). This presumption, ho wever, is conditioned upon an affirmative show ing in the r ecord that the tr ial court c onsidered the sentencing principles and all rel evant facts and c ircumstances. State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). In thi s case, the record on appeal doe s not affirmatively

show that t he trial cour t properly

considered thestatutory guidelines

as provided i n Tennessee Code Annotat ed section 40-3 5-103, and unfortunatel y, the judgment of the tr ial court i s not accompanied b y a presumpti on of correctness

. Accordingly, our review of the appellant’s sentence is de novo

. This appellant has bee n convicted of more than f orty alcohol-related crimes in the last seventeen years, including six D.U.I. convictions, over twenty public i n t o x i c a t i o n c o n v i c t i o n s , a n d fi v e c o n v i c t i o n s fo r d r i v i n g o n a r e v o k e d l i c e n s e

. We recogniz e that the appella nt may now be a recov ering alc oholic, and he i s to be commended f or seeking treatment and coun seling for his alcohol problem, but we also note that the appe llant did not begin his treatment un til after his adjudication of guilt in this case and on ly eig hteen days pr ior to his sentencing hea ring. The record also

reflects that t he appellant has p reviousl y receiv ed fines and partially suspended jail sentences, but t hose punishments hav e had no effect on the appellant’s c ontinued crimi nal behavior . According ly, w e find that some inca rceration is necessar

y to protec

t society from the appellant be cause of his long history of crim inal cond uct a nd be caus e me asur es le ss res trict ive th an co nfi nem ent h ave frequently or recently

been applied unsuc cessfully to the appellant. See Tenn. Code4

Ann. § 40-35-103( 1)(A) and ( C). Clear ly, the record does not i ndicate that the appellant is e ntitled to pr obation. The appellant argues, ho wever, that he is at least entitled to serve his entire sentence on community correctio ns because he meets all of the elig ibility criteri a for community cor rections. We agree that t he appellant is statutoril y elig ible to be considered for a community cor rection sentenc e. See Tenn. Code Ann. § 40- 36- 106(a) (Supp. 1996). Althoug h the appellant i s eligib le for a community correctio ns sentence, he is a Range II off ender and thus not presu med to be a favorable candidate for alterna tive sentencing. Tenn. Code Ann. § 40-35-102(6) (Supp. 1996); State v. Zeolia , 928 S.W .2d 457, 461 (Tenn . Crim. App. 1996). Moreover, the fact that the appellant

may be elig ible for community correctio ns or some other type of alternative sentencing does not mean that he i s entitled to such sentencing . Given t he appellant’s ex

tensive hi story of alc ohol-related offenses, coupled w ith a prior violent felony conviction, we agree with the trial court that confineme nt for a period of six months is proper

in this cas e. The appellant also argues th at the trial court improperly imposed split confinement in this

case by fir

st ordering a period of incar ceration followed by community cor rections. As authority for that proposi tion, the appell ant relies up on the unreported opini on of a panel of this C ourt in State v. Ri chmond , No. 02C01-9410-CR00217 (Tenn. Cri m. App., Jackson, Sept. 13, 1995). The appellant misr eads Richmond . In that case, a panel of our Cour t held that w hile Tennessee Co de Annotated, section 55-10-616(c), precluded a trial court fro m suspending the senten ce for one convic

ted of violati ng the habitual motor vehic le statute, that prohibition did not preclude a tr ial court from considering placing an habitual motor v ehicle offender on community cor rections si nce a community correctio ns sentence is not probation. Nothing in that case sug gests that a sentence involving a period of incar ceration5

followed by

community cor rections was improper. The judgment of the tr ial court i s affirmed.

WILLIAM M. BARKER, JUDG E CONCUR:

JOSEPH M. TIPTON , JUDGE

CURWOOD W ITT, JUDGE