FILED

June 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MARCH 1998 SESSION

STATE OF TENNESSEE, )

) C.C.A. NO. 03C01-9705-CR-00196

Appellee, )

) SULLIVAN COUNTY

VS. )

) HON. PHYLLIS H. MILLER,

SCOTTY L. HAYCRAFT, ) JUDGE

)

Appellant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

GERALD L. GULLEY, JR. JOHN KNOX WALKUP

P.O. Box 1708 Attorney General & Reporter

Knoxville, TN 37901

 (On Appeal) TIMOTHY F. BEHAN

Asst. Attorney General

LESLIE HALE 425 Fifth Ave., North

Asst. Public Defender Cordell Hull Bldg., Second Fl.

P. O. Box 839 Nashville, TN 37243-0493

Blountville, TN 37617

 (At Trial) H. GREELEY WELLS, JR.

District Attorney General

ROBERT H. MONTGOMERY

Asst. District Attorney General

P.O. Box 526

Blountville, TN 37617

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY,

Judge
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T.C.A. § 55-10-616.

2

O P I N I O N

In July 1996, the Sullivan County grand jury indicted the defendant on one

count of violating the Motor Vehicle Habitual Offenders Act.

1

 He pled guilty and was

sentenced as a Range III persistent offender and was ordered to serve five years in the

Tennessee Department of Correction. In this appeal, the defendant argues that the trial

court erred when it denied his request to be placed on Community Corrections. After a

review of the record and applicable law, we find no error and affirm the judgment of the

court below.

When a defendant complains of his/her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A. 

§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, "is

conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances." State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991).

The Community Corrections Act of 1985 establishes a community based

alternative to incarceration for certain offenders and sets out the minimum eligibility

requirements. T.C.A. §§ 40-36-101 through -306. This Act does not provide that all

offenders who meet the standards are entitled to such relief. State v. Taylor, 744 S.W.2d

919, 922 (Tenn. Crim. App. 1987).

The purpose of the Tennessee Community Corrections Act of 1985 is to
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establish a policy to punish selected, nonviolent felony offenders through communitybased alternatives to incarceration. The goals of the Community Corrections Act include

the following: maintaining safe and efficient community correctional programs, promoting

accountability of offenders to their local community, filling gaps in the local correctional

system through the development of a range of sanctions and services, reducing the

number of nonviolent felony offenders in correctional institutions and jails, and providing

“opportunities for offenders demonstrating special needs to receive services which

enhance their ability to provide for their families and become contributing members of their

community . . . .” T.C.A. § 40-36-104(1)-(5).

Before one is entitled to community corrections, he or she must be eligible

pursuant to T.C.A. § 40-36-106(a). Mere eligibility, of course, does not end the inquiry.

We must also look to the Criminal Sentencing Reform Act of 1989. Under this Act, trial

judges are encouraged to use alternatives to incarceration. T.C.A. § 40-35-102(6) states

that “a defendant who does not fall within the parameters of subdivision (5) and 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 sentencing options in the absence

of evidence to the contrary.” Militating against alternative sentencing are the following

considerations:

Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

[c]onfinement 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 [m]easures less restrictive than

confinement have frequently or recently been applied

unsuccessfully to the defendant...

T.C.A. §40-35-103(1)(A)-(C). See also State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).
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In sentencing the defendant, the trial court noted that as a Range III

persistent offender, the defendant is not presumed to be a favorable candidate for an

alternative sentence. In denying the defendant’s request for Community Corrections, the

trial judge pointed to the defendant’s previous history of criminal convictions and the

defendant’s previous history of unwillingness to comply with the conditions of a sentence

involving release in the community. The record certainly supports these findings. The

defendant has a criminal record dating from 1984. He has been convicted of numerous

crimes including burglary, arson, robbery, forgery, passing bad checks, larceny, assault,

and theft. In addition, he has been convicted of numerous traffic offenses including

multiple convictions for driving on a revoked license and one conviction for driving while

under the influence. He has been given alternative sentences in the past and has failed

to comply with the requirements. Past sentences of probation have had to be revoked.

The defendant argues that he should have been granted Community

Corrections so that he could receive treatment for his problems with alcoholism. However,

after looking at the defendant’s record, which included only one alcohol related offense,

the trial judge stated, “I find that you do not have a drug or alcohol problem, just from your

criminal history. You just have a problem of obeying the law.”

The record clearly supports the trial court’s denial of Community Corrections.

The defendant’s lengthy criminal history and his failure to rehabilitate despite being given

numerous opportunities to do so are sufficient reasons to deny the defendant’s request.

Thus, the judgment of the court below is affirmed.

__________________________________

JOHN H. PEAY, Judge
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CONCUR:

_______________________________

PAUL G. SUMMERS, Judge

_______________________________ 

CORNELIA A. CLARK, Special Judge