# FILED January 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9712-CC-00533 Appellee, ) ) Anderson County v. ) ) Honorable Lee Asbury, Judge GEORGE RUDOLF (RUDY) HOL LOWAY, ) ) (Sentencing) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Katherine J. Kroeger John Knox Walkup Assistant Public Defender Attorney General & Repor ter 101 South Main Street, Suite 450 425 Fifth Avenue, North Clinton, TN 37716 Nashville, TN 37243-0493 J. Thomas Marshall, Jr. Clinton J. Morgan District Public Defender Assistant Attorney General 101 South Main Street, Suite 450 425 Fifth Avenue, North Clinton, TN 37716 Nashville, TN 37243-0493 James N. Ramsey District Attorney General 127 Anderson County Courthouse Clinton, TN 37716 Janice G. Hicks Assistant District A

ttorney General 127 Anderson County Courthouse Clinton, TN 37716

OPINION FILED: ____________________________

__________ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE2 

### O P I N I O N
The appellan t, George Rudolf Ho lloway, referred herein as the defendant, appeals as of right from the judgment of the Anderso n County Criminal Cour t denying probation. The defendant was convicted of two counts of sale of cocaine , a Class C felon y. The defendant entered two pleas of guilty and agr eed to three-year concur rent sentences and a $2,000 fine for each count. The defendant reque sted a proba tion he aring. At the conc lusion of the sentencing hearing, the trial court denied the defe ndant an alternativ e sentence and ordered the defendant to confinement in the Department of Correcti on.

The defendant presents two issues for our review: ( 1) Whether the trial court failed to consider relevant sent encing principles and thus the standard of review for denial of probation is de novo with no presumption of correctness; and (2) the trial court abusedits discretion by failing to sentence th e defendant in accordance with the Criminal Sentencing Reform Act of 1989.

After a review of t he entire record, b riefs of the parti es, and a ppropria te law, we affirm the trial court’s judg ment.

HISTORICAL BACKGROUND

The Anderson County Grand Jury indicted the defendant in two counts for the two separate sales of cocaine less t han one-half gram on February 14, 1996. On June 18, 1997, the defe ndant entered two guilty pleas to the sale of cocaine and r equested a se ntencing h earing to determine the merits of an alternative sentence, m ore specifically intensive proba tion. The def endant sought probation at th e sentencing he aring.

Wade Adcock, state probation officer, testified he p repa red a presentence report on the de fendan t after a persona l interview. As part of the def endant’ s persona l history, Adcockfound a lengthy prior criminal record . Between M ay, 1988 and July, 1997, the defenda nt had eleven convictions for public intoxication.On September 15, 1995, the3

defendant was convicted of the poss ession of a counterfeit controll ed substance and was placed on probation. The defendant’s other prior c onvictions include: three convictions fordriving on a rev

oked license, three convi ctions for criminal tres pass, one conviction for vandalism,two convictions for driving under the i nfluence of intoxicants, one conv iction for theft less than $500, and one convi ction for reckless driv ing. At the time of

the hearing, the def endant had sent

encing for a the

ft offense

and a hea ring fo r revocation o f probatio n pending in Anderson C ounty. In Knox County, the defendant had pendi ng offenses of driving under the influence of an intoxicant and driv ing on a revoked lic

ense.

Adcocktestified the defendant’s empl oym ent was sporadic and described the defendant as a self-employed “sha de tree mechanic.” Although the defendant reported he lived with his parents, Adcock could not v erify this information w ith th e defend ant’s mother.

As part of the defendant’s history, Adcoc k determined the defendant served in the U.S. Marine Corp from 1971 to 1976, but was dishonora bly discharge d due to drug cha rges and a sexual assault case. The defendant received alcohol/drug coun seling in West Virginia in 1985, bu t rehabilitation was unsuccessful based on his curr ent record. The defendant admitted to using cocaine a week prior to the int

erview with Adcock
. Adcockdid not believe the defendant coul d successfully complete a dr ug/alcohol treatment program. When the defendant com m itted the instant offenses, he was on probation stemming from a conviction for possession of a counterfeit contr olled substance. Adcock testified Anderson County has an intensive supervi sed probation program.

David H. Beams, Oak Ridge Poli ce Chief, testi fied he has known the defendant since 1970. Chief Beams was quit e f amiliar with the defendant’s arrest history. C hief Beams testified the Scarboro community in Oak Ridge, where the defendant frequented fordrug purchases, is recognized as a regional location where crack cocaine can be readily bought. Chief Beams opposed probati on for the defendant.4 The defendant, age 43at the time of sentencing, testi fied he has a long history o f drug and alcohol problems. The defendant attempted an alcohol treatment program in 1985. The defendant testified he would li ve with his parents

if granted probation. As to the offenses, the defendant testified “I did it out of need, not for money. I woul dn’t sell it; I was strictly a street user.” Regarding h is employment, the defendant desired to open a shop formechanic work. Th e defendan t testified he was committed to getting drug treat ment and following the rules of probation. In enlargingon the offenses, the defendant testified he did not sell the crack c ocaine, but was tryi ng to get some cocaine f orhimself. The defendant admitted to making this ty pe of sale on a frequent basis to s upport h i s drug habit. The de fendant test ified he was living with this girl

friend and was confused about informing his probation officer of his address.

Based on this testimony and the presentence report, the trial court denied probation or any alternative r

elief.

SENTENCING CONSIDERATIONS

The defendant requests this Court to conduct a de novo review without the presumption of correctness because he contends the trialcourt failed to consider r elevant sentencing principles and abused its discretion in failing t o sen tence the defendant in accord with the Cri minal Sentencing Reform Act of 1989.
Appellate review of sentencing is de novo on the record witha presumption that the trial court’s determinations ar e c orrect . Tenn. Code Ann. §§ 40-35-401(d) and -402(d). As the Sentencing Commission Comments to these sections note, the burden is now on the appealing party to show that the sentencingis improper. This means if the trial court follows the statutory senten cing p rocedure, makes findings of fact which are adequately supported in the record, and gives due consideration and proper application of the factors and principles which a re relevant to sentencing under the 1989 Sentenc ing Act, we may not di stur b the sentence even if a different res ult were preferred. State v. Fletcher, 8055

S.W.2d 785, 789 ( Tenn. Crim. App. 1991). However, “the presumption of correctness which accompanies the trial court’s action is conditioned upon the affirmative showing in the record that the trial co urt considered the sentencing principles

and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 16 9 (Tenn. 1991).

In conducting a de novo review, we must consider: (1) the evi dence, if any, received at the guilty plea and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct; (5) any mitigati ng or statutory enhancement factors ; (6) any state me nt that the defendant made on his own behalf; and (7) the potential for rehabilitation. Tenn. Code Ann. §§ 40-35-102, -103, and -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

Since the defendant entered pleas of guilty to the sale of cocaine on two occasions, a Class C felony, he

is presumed to be a

favorable cand idate for alte rnative sentenc ing, in the absence of evidence to the contrary. Tenn. Code Ann.§ 40-35-102(6). When a defendant is entitled to the statutory presumption of alternative s entencing, then the state has the burden ofovercomingthe presu mption wit h evidenc e to the co ntrary. Con versely, the defendant has the burden of est ablishing suitabilit y for full probation, even if the defendant is entitled to the statutor y presumption of alternativ e sentencing. Tenn. Code Ann. § 40-35-303(b)(1994 Supp.); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Cr im. App.), per. app. denied (Tenn. 1995). Unfortunately, the record on appeal does not include the guilty plea hearing

at which the convic

ting evidence was presente d by st ipulation or testimo ny. A guilty

plea hear ing often provides an impor tant occasion for the state to presentits proof and, thus, it is the equivalen t of a trial and should be made part of the record on appeal in order to comply with Tenn. Code A nn. § 40-35-210.

In reviewing the ev

idence in the record of

the sentencing hearing and the trial court’s ruling denying alternative relief, we find the tria l court did comply with the overall sentencing principles required by the Criminal Sentencin g Reform Act of 1989. Tenn.6

Code Ann. § 40-35-210. The ref ore, we conduct our review on the basis the trial court’s ruling was presumpti

vely correct.
We agree with the defendant that to receive probati on, he must demonstrate that pro bation will serve the ends of justice and the best interests of both the public and th e defendant. Also, as part of his arg ument, the defendant complains the trial court failed to consider the principle regardi ng rehabilitation and treatment r equired by Tenn. Code Ann. § 40-35-103(5). Due to his age, the defendant is not eligible for “boot camp” and thus his alcohol/drug problems ar e appropriate for treatment in an i ntensive probation prog ram. In denying full probation and any alternative r elief, the trial court rul ed:
In the opinion of

the Court, this defendant does not qualify for any of the relief progr ams ava ilable, such as intensiv e or regular probation, or community alternatives. I w ould cite the following reasons for

making that ruling. St

arting a goodmany years ago, he’s been dish onorabl y dis charged by the U.S. Marine Corp, which does not s peak wel l f or him. He has a lengthy previous record, w

hich extends over a l ong period of tim e. H e has public drunkenness offenses that were committed during the pendency of this matter. The C ourt is certainly no

t satisfied that he h as shown here this morni ng any adequate living or employ

ment arrangement. It’s pretty obvious

that previous suspension s of sentences and probations have not been successful, as he was, in fact, on a suspended sentence status when this particular event occurred; and furt her, tha t the offi cerwho prepared a rather thorough report, strongly recommends against probation. For all those reasons, probation and/or any other type of alternative sentencing

will be denied.

Based on this record, we fully concur w ith the trial court’s denial of probation or any alternative relief. Si nce 1988, the defendant has developed a long history of convictions (twenty-three

in all) ranging from public intoxication, theft, dri ving offenses, vandalism, and drug sales to support hi s drug addiction. Other than alcohol counseling i n 1985, the defendant has done nothing to remedy his abuse of alcohol and drugs. The presentence report reveals the defendant was placed on probation for his convictions

of DUI, driving on a revoked license, and theft.At the time of the sentencing hear ing, the defendant had four pending procee di ngs in two counties. One of the pending cases was a revocation of7

probation during which probationary status the defendant sol d cocaine on February 14, 1996.
Although the vast maj o rity of the defend ant’s con victions a re misdem eanors, we believe the trial c ourt wa s correct in continuousl y confining the defendant. Sentences involving confinement s hould be based on the following considerations: (A) Confin ement is necessary to protect society by restraininga defendant who has a long his tory of criminal conduct; and * * * (C) Measuresless rest ric tive than confine ment have frequently or recently been applie d unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1).

We find the defendant’s lengthy criminal conduct and un success ful perio ds of probation fully justify

confinement.
The trial court’s judgment is affirmed.

___ _______________________ _____________

_ L. T. LAFFERTY, SENIOR JU DGE8

CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JAMES CURWOOD WITT, JR., JUDGE