# FILED

February 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

STATE OF TENNESSEE ) ) NO. 01C01-9702-CC-00053 Appellee, ) ) WILLIAMSON COUNTY v. ) ) Hon. Donald P. Harris TRAMPAS DALE SWEENEY ) ) (Sentencing) Appellant ) )

For the Appellant For the Appellee C. Diane Crosier John Knox Walkup Assistant Public Defender Attorney General & Repor ter P.O. Box 68 Franklin, TN. 37065 Sarah M. Branch Assistant Attorney Gener al 2nd Floor Cordell Hull

Building 425 Fifth Avenue North Nashville, TN. 37243-0943 Joseph D. Baugh, Jr. District Attorney General Williamson County Cthse. Ste. G-6 P.O. Box 937 Franklin, TN. 37065-0937 Jeff Burks Assistant District A

ttorney General P.O. Box 937 Franklin, TN. 37065-0937

OPINION FILED:____________________ AFFIRMED PURSUANT TO R ULE 20 WILLIAM M. BARKER, JUDGE1 The appe llant w as ind icted on th e follo wing char ges : (1) O pera ting a mo tor ve hicle in W illiam son Cou nty, T enn ess ee w hile cla ssifie d as a n HM VO ; (2) D riving a m otor v ehic le upo n a pu blic highway i n Williamson County, Tennessee when his privilege t o do so was canceled, suspended, or revoked; (3) Evading arrest ; and (4) Possessi ng a control led substance,to-wit : diaze pam, being classifi ed as a Schedule IV con troll ed substance. Pur suant to a pl ea agreement, the appe llant pled guilt y to evadi ng arrest and ope rating a motor vehicle while decl ared an HMVO, and the State entered nolle pr osequi on the rem aining co unts.

2 One of the HMVO violations, committed on March 19, 1994, occurred whi le the appel lant was free on bo nd fr om a 199 3 off ens e. Ad dition ally, the offe nse s at is sue in this c ase were com mitte d wh ile the appe llant was on probation from conviction s in 1994

. 2 OPINION The appellant, Trampas Dale Sween ey, appeals as of right the sentences he received following

guilty pleas in the

Circuit Court of Williamson County to the offenses of evading arrest and dr iving a motor vehi cle while classified as an habitual motor vehicle offender (“HMVO”). 1 The trial court se ntenced the a ppellant as a Ra nge III persistent offender and ordered hi m to serve five (5) y ears in the Tennessee Department of Correction for driving a motor vehicle while declared an HMVO, a Class E felony; and eleven (11) months and twenty-nine ( 29) days in the Williamson County Jail for evading arr

est, a Class A misdemeanor. The sentences were ordered to run concurrently for a total effective sentence of five (5) y ears. On appeal, the appellant contends th at the trial court failed to properly consider probation for the offense of driving while declared an HMVO. He further contends that he should have been placed on communi ty corrections. We affirm the judgment of the trial court pursuant to R ule 20 of the Tennessee Court of Crimi nal Appeals. The appellant in this case is no stranger to the criminal justice system in Tennessee. He was orig inally declared an habitual motor vehicle offender on June 2, 1989, based upon his four (4) pri or convictions for dri ving with a rev

oked license and one (1) prior conviction for driving while under the influence of an intoxicant. Since 1989, the appellant has received six (6) convictions for operating a motor vehicle while declared an HMVO, two ( 2) convictions for dri

ving with a rev

oked license, two (2) convictions for driv

ing while under the i nfluence of an intoxicant, one (1) conviction for marijuana possession, and one ( 1) conviction for evad ing arrest. 23 In the present case, appellant c hallenges his sentences on the ground that he is somehow suitable for probation or community corrections. This issue is without merit. When an appellant challenges his sentence, w e must conduct a de novo review of the record. See Tenn. Code Ann. § 40-35-401(d) (Supp.1996). T he sentence imposed by the trial cour t is accompanied by a pres umption of correctness and the appealing party has the b urden of showing that the sentence is improper. See Tenn. Code Ann. § 40-35-401 (Sentencing Commission Comments). That pres umption, however, is conditioned upon an affirmative showing in the record that the trial court considered the sentencing pr inciples and all relev

ant facts and circumstances. See State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Tennessee Code Annotated section 40-35- 103 sets out the sentencing considerations for courts t o follow when determinin g whether a defendant should be incarcerated. Those factors include: whether confinem ent is necessary to protect society or to avoid

depreciating the seriousness of the offense, whether “confinement is particularly suited to provide an effective deterrence to others likely to commit similar of fenses ,” and whet her “mea sures les s restrict ive than co nfinem ent have frequently been applied unsuccessfully to the defen dant.” See Tenn. Code Ann. § 40- 35-103(1) (Supp. 1996). The trial court gave full consideration to the relev ant evidence and circumstances before ordering the appellant’s sentences. As the trial court found, the appellant has a criminal r ecord of over fifteen (15) conv ictions and has demonstrated an unwillingness to comply with the conditions of probation and community r elease. Nevertheless, the appell ant argues that the trial court should have consider ed probation for the HMVO offense in li ght of this Court’s prev ious decision in State v. Ricky Fife , No. 03C01-9401-CR-0036 (Tenn. Crim. App. at Knoxville, June 15, 1995). The appellant’s reliance on Fifeis without merit. In Fife , a panel of this Court3 Prior to the Sentenci ng Reform Act of 1989, Tennessee Code Annotated secti on 55-10-616© preclud ed trial cour ts from suspe nding an y portion of a habitual m otor vehic le offend er’s sen tence. 4 acknowledged that the 1989 Se ntencing Reform Act supersedes Tennessee Code Annotate

d secti on 55-10-616(c

), so th at tria l court

s may no

w suspe nd all o r part o f a habitual motor vehicle offender’s sentence. See slip op. at 2, n.2. 3 However, trial courts maintain full discr etion to determine the appropria te sentence under the Sentencing Reform Act of 1989, and noth ing in that Act supports appellant’s contention th at he is suitable for alternative sentencing. To the contrary, from our de novo review, we conclude that appellant’s sentences, as set under Range III, are clearly justified in light of his criminal history and his persistent disregard for the laws of this Stat e. The appellant has failed to carry his burden of showing that his sentences are improper. Pursuant to Rule 20 of the Tennessee Co urt of Criminal Appeals, the j udgment of the trial court is affirmed.

___________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

__________________________ JOE B. JONES, Presiding Judge

__________________________ PAUL G. SUMMERS, JUDGE