### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs M

arch 20, 2001 STATE OF TENNESSEE v. JOHN CALV IN SMITH Direct Appeal from the Criminal Court for Hamilton County Nos. 229720 and 229866 Douglas A. Meyer, Judge

No. E2000-01109-CCA-R3-CD April 18, 2001 The defendant pled

guilty to two counts of felonious possession of a weapon with an agreed sentence of two consecutive t

wo-year t erms. In this

appeal, the defendant challenges the trial court's denial of alternative sentencing. Upon review of the record, we affirm the trial court’s denial of alternative sentencing. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which J ERRY L. S MITH and A LAN E. G LENN , JJ., joined. Johnny D. Houston, Jr., Chattanooga, Tennessee, for the appellant, John Calvin Smith. Paul G. Summers, Attorne y General and Reporter; Pet

er M. Coughlan, A

ssistant Attorney

General; William H. Cox III

, District Attorne

y General ; and Rodney C . Strong, Assistan t D i strict Attorney General, for the appellee, State of Tennessee.

OPINION The defendant pled guilty to two counts of felonious possession of a weapon for an agreed sentence of two consecutive two-year terms. The defendant cha llenges the trial cou rt's denia l of alternative sentencing. We affirm the trial court.

FACTS The defendant was arrested on December 11, 1998, for possession of

a weapon by a felon. While on bond for that of fense, th e defendant

was again arrested on December 17, 1998, for felonious possession of a we apon. He pled gu

ilty as a Range I

I multiple offe

nder to both

counts of-2-

felonious possession of a we apon, Class E felonies, for an agreed effective sentence of four y ears with the trial court to determine whether alternative sentencing should be granted. The defendant testified at his sentencing hearing that he was a 65-year-old, disabled veteran. He further stated th

at his physical problems included numerous hip replacements, cirrhosis of the liver, glaucoma, and

ulcers. Additionally, the defendant stated that he was a victim of a robbery in 1997 and almost died fr

om a gunshot wound

. He further stat

ed that two subsequ

ent robbery

attempts occurred since the 1997 incident. He explained that he possessed the firearms because he needed protection. The defendant testified that he ran a “good time house” but ceased its operation subsequent to the second charge in this case. We surmise from the pre-sentence report that this was an illici t drinking and gambling establishment run out of the defendant’s residence, and the defendant did not possess a liquor, beer or business permit. The defendant conceded he knew it was illegal to run such an establishment and deliberately broke the law. Although the defendant was cited numerous times in 1995 for liquor violations and for running a “disorderly

house,” he was un

able to remember if the city judge warned him about “running a good time house.” The defendant’s pr ior criminal record consists of nine misdemeanor convictions, two co nvic tions for food stamp fraud, and one conviction for second degree murder. The def endant admitted that he was on pro bation for food stamp fraud when he was convicted of second degree murder in 1984. He further

admitted that he kn

ew it was illegal for him to possess firearms, but he consciously chose to break the law. The trial judge foun

d that the defenda

nt deliberately

engaged in ill

egal activities

and was a danger to society. T

hus, the trial court denied the motion for alternative sentencing. The defendant w as sentenced to ser

ve his effective

four-yea r sentence in the

custody of th

e Departm

ent o f Correction.

TRIAL COURT'S DENIAL OF ALTERNATIVE SENTENCING The defendant challenges the trial court's denial of alternative sentencing. We conclude that the trial court properly sentenced the defendant. A. Standard of Review This Court’s review of

the sentence impo sed by the tr ial court is de novo witha presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge c onsidered the sen tencing princip

les and all relevant facts and circumstances. S tate v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial cour t fails to comply

with the statutory

directives, ther

e is no presumption o

f correctness a

nd ou r review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).-3-

Under the Criminal Sentencing Refo rm Act of 1989, trial judg es are encoura

ged to use alternatives to incarceration. An especially mitigated or standard offender convicted of a

Class C, D or E fel o ny is presumed to be a favorable candidate for alterna tive sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40

-35-102(6). As a

Range II multiple offender, the defendant is not presumed to be a favorable candidate for alterna tive sentencing. In determining if incarceration is appropriate, a trial court may consider the need to protect society by restraining a defen

d ant having a long

history of c

riminal conduct, th

e need to avoid depreciating the seriousness of the offense, whether con finement is partic ularly appr

opriate to effectively

deter others like

ly to commit similar off

enses, and whether less restrictive measures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also Ashby , 823 S.W.2d at 169. B. Analysis The trial court fou nd that con finement was necessary “for the safety of the community.” Although the trial court

did not use the exact terminology of the statute, we conclude the trial court found that

confinement was “necessary to protect society by restraining a defendant who has a long history of criminal conduct.” Tenn. Code Ann. § 40-35-103 (1)(A ). Additionally, the trial court properly considered the defendan t’s testim ony at the sent encing heari ng concerning his adv anced age and poor health. The court, however, placed little weight on the te stimony finding that the defendant’s health status would not prevent him from using his weapons to kill. We further

note that “measures less r estrictive than c

onfinement have f

requently o

r recently been applied unsuccessfully to the de f endant.” Tenn. Code Ann. § 40-35-103(1)(C). The defendant’s pre-sentence report reveals that the defendant has been convicted of nine

misdemeanors, some of which involved alternative sentencing. The second degree murder was committed while he was on probation for felony food stamp violations. Furthermore, the defendant’s second count of felonious possession of a weaponoccurred while he was on bond approximate ly one week

from his arrest for the fir st c oun t. A ccor din gly, we conclude that rehabilitation of

the defendant is

extremely unl ike ly. See Tenn. Code Ann. § 40-35-103(5). We can only c onclude the trial

court did not err i

n denying alternative sentencing. The judgment of the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE