# FILED
January 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON NOVEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9611-CR-00429 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, RANDY C. FIVEASH, ) JUDGE ) Appellant. ) (Denial of Alte rnative Sentenc ing)

FOR THE APPELLANT : GER ALD D. SKAH AN 140 North Third Street Memphis, TN 38103-2007 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter DEBORAH A

. TULLIS Assistant Attorney Gener al Cordell Hull Buildi ng - 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General THOMAS D. H ENDERSON Assistant

District Attorney

General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED PU RSUANT TO R ULE 20

JOE G. RILEY, JUDGE2 O R D E R

The appellant, Randy C. Fi veash, entered a plea of guilty to the offense of driving in violation of

the Habitual Motor Vehicle Offenders (HMVO) Act, a Class E fel ony. He received a sentence of one (1) year as a Standard Offender with th e issue of alternative sentencing reserved for

judicial determination. The sole issue presented in this app ea l is whether the tri al court erred in denyi ng community corrections. We AFFIRM the sentence of the tri al court pursuant to Rule 20 of the Tennessee Court of Criminal Appeal s.

On July 20, 1995, a ppellant drove in vi olation of the HMVO Act. He pl ed guilty to this offense and asked for alternativ e sentencing in the form of placement in the community corrections program. Appel lant claimed that he drove that day because his wife was sick and was unable to take him to work. He admitted he w as an alcoholic, but that he had beg un attending Alcoholics An onymous and had stopped drinking. He admitted using marijuana four (4) days prior to his interview with the community

corrections officer who prepared the pre-sentence evaluation.

The pre-sentence evaluation reveals that the appellant had numerous prior convictions

during the period of 1986 throug h 1994, incl uding four (4) D.U.I. convictions, five (5) reckless dr iving convicti ons, and five (5) convi ctions for driving while license suspended, canceled, or revoked (DWLSCR). In addition, he had a prior probation violation as well as other misdemeanor convictions. After the last DWLSCR conviction, appellant was declared an HMVO on January 25, 1994.
Although appellant is entitled to a presumption of alternative sentencing, his p rior recor d supports the trial cour t’s decision that he was not an appropriate candidate. The trial court called appellant’s driving record “horrendous” and n oted that he c ould have killed himself or others. The court based its decision in part upon appellant’s previous violation of probation and his smoking marijuana while3

disposition of the instant offense was pending. The court also found that to grant community

corrections in spite of all these factors would depreciate the seriousness of the offense.

After thoroughly revi ewing the record, the briefs, and the law gov erning the iss ue presented by the defendant, we conclude that the trial court did not err b y denying alternative sentencing

. Accordingly, purs uant to Rule 20 of the Tennessee Court of Criminal Appeals, w e AFFIRM the sentence of the tr ial court.

JOE G. RILEY, JUDGE

CONCUR:

GARY R. WA

DE, JUDGE

DAVID G. HA

YES, JUDGE