# FILED
June 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9705-CR-00196 Appellee, ) ) SULLIVAN COUNTY VS. ) ) HON. PHYLLIS H. MILLER, SCOTTY L. HAYCRAFT, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE: GERALD L. GULLEY, JR. JOHN KNOX WALKUP P.O. Box 1708 Attorney General & Repor ter Knoxville, TN 37901 (On Appeal) TIM OTH Y F. B EHAN 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 Attor

ney General P.O. Box 526 Blountville, TN 37617

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 T.C.A. § 55-10-6 16. 2 

### O P I N I O N

In July 1996, the Sulliv

an County grand jury

indicted the defendant on one count of violating the Motor Vehicle Habitual Offend ers Act

. 1 He pled guilty and w as 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 re cord and applicab le law, we find no error and affirm the judgment of the court bel ow.

When a defendant complains of his/her sentenc e, 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 appeal ing party. T.C.A. § 40-35-401(d) S e ntencing Commission Comments. This presumption, however, "is conditioned upon the affirmative showing in the record that the tri al court considered the sentenc ing pri nciples and all relev ant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991).

The Community Corrections Act of 1985 establishes a community ba se d alternat ive to incarceration for cert ain offenders and sets out the mi nimum eligibility requirements. T.C .A. § § 40-36-101 through -306. This Act does not provide that all offenders who meet

the stan dards ar

e entitl ed to such relie

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

The purpose of the Tennessee Community C orrections Act of 1985 is to3

establish a policy to punish se lected, nonviolen t felony o ffend ers throu gh commu nitybased alternatives to incar ceration. 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, fillin g gaps in the local co rrectional system throug h the dev elopment

of arange of sanctions and services,reducing the number of nonviolent felony offenders in correctional institutions and jails, andproviding “opportunities

for offenders demonstrating spec ial need s to receive services which enhance their ability to pr ovide 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 pursuantto T.C.A . § 40-36- 106(a). Me re eligibil ity, of co urse, doe s not end the inquir y. We must also look to the Criminal Sen tencing Reform Act of 1989. Under this Act, trial judges are encouraged to use alternatives to in carceration. T.C.A. § 40-35- 102(6) states that “a defendant who does not fall within the parameters of subdivision (5) and w ho is an especiallymitigated or standard offender conv icted 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 co ntrary.” Militating aga inst alternative s entencing are the f ollowing considerations:

Confinementis necessary to protect society by restra i ning a de fendant who has a long history of criminal co nduct ; [c]onfinementis necessary to av oid depreciating the seriousness of the offense or confinem ent is particularly suited to provide an effecti ve d eterrence to others likel y to commit similar offenses; or [ m]easures less restric tive than confinement have frequently or rec ently 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).4 In sentencing the defen dant , the trial court noted that as a Range III persistent

offender, the defendant is not p resumed to be a favorable candidate for an alternat ive sentence. In denying the defendant’s request for Community Corrections, the trial judge pointed t o the defendant’s previous his tory of criminal conv

ictions and the defendant’s previous history of unwillingness to

comply with the condi

tions of a sentence involving release in the community. The record certainly su pports these findings. The defendant has a criminal record dating from 1984. He has been convicted of numerous crimes includin g burglary, arson, robbery, forgery,passing bad checks, lar ceny, assault, and theft. In addition, he has been c onvicted of numerous traffic offenses including multiple convictions for driving on a revoked license and one conviction for dri ving while under the infl uence. He has been given alter native sentences in the past and has failed to comply with the

requirements. Past sentences of probation hav e had to be revoked.

The defendant arg ue s that he should have been gr anted Community Corrections

so that he could rec eive treatment for his problems with alcoholism. However, afterlooking 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 obey ing the law.”

The record clearly supports the trial c ourt’s denial of Community Corrections. The defendant’s lengthy criminal hi story 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, Judge5

CONCUR:

_______________________________ PAUL G. SUMMERS, Ju dge

_______________________________ CORNELIA A. CLARK, Speci al Judge