# FILED
March 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON JANUARY 1998 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01-9612-CR-0 0445 ) ) Shelby County v. ) ) John P. Colton, Jr., Judge ) ) (Sentencing) VANCE S. RUFFIN, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: William D. Massey John Knox Walkup Attorney at Law Attorney General & Repor ter 3074 East Street 425 Fifth Avenue, North Memphis, TN 38128 Nashville, TN 37243-0497 Deborah A. Tullis Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Dawn Doran Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:_______________________________

_ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Vance S. Ruffin (defendant), w as convicted of facilitating the felony of vehicular homicide, a Class D felony, and facilitating the felony of vehicular as sault, a Class E felony, following his plea of guilty to each offense. The trial court sentenced th e defendant pursuant to a plea agreement. The defenda nt was sent enced as a Range I standard offender. The sentences imposed were:(a) a fine of $500 and confinement for two (2) years in the Shelby County C orrectional Center for facil itating vehicular homicide, and (b) confi nement fo r one (1) year in the Shelby County Corr ectional Center for facilitating vehicular assault. The sentences are to be served concurrently. One issue is present ed for review. The defendant conte nds the trial court abused i ts discretion by refusing t o impo se an alternative sentence.After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this court that the judgment ofthe trial court should be affirmed. The defendant has failed to establish the trial court’s refusal to impose an alternative sentence
was erroneous. On December 3, 1994, the defendant and Sanford C.Jackson (Jackson), a co
defendant, wentto the ho me of Su san and L eo Delato ry. When they arrived, both Jackson and the defendant were highly intoxicated as a result of consuming alcoholic beverages. The Delatorys left with Jackson and the defe ndant in the defendant’s vehicle . The defendant was driving. They s topped at a convenience store to purchase beer. Leo Delatoryasked the defendant if he could drive since he a nd Jackson were both intox icated. Jackson was driving the defendant’s vehicle when they le ft the convenience store. Both the def endant a nd Jackso n were “pla ying” with th e steerin g wh eel in an attempt to
scare Susan Delatory. Dur ing the course of their “playing” wi th the wheel, both Jackson and the de f endant grabbed the steering wheel simultaneously. As a result, the vehicle
veere d left, hit a ditch, flew int o the air, and landed in another ditch. The impact killed Susan Delatory. Leo Delator y suffered serious

injuries to his hands and face. These injuriescaused Leo D ela tory to lose his position of employment. Jackson had a b lood alcohol content of .15% and the defendant had a b lood alcohol content of .18%.3 The defendant did not present any evidence at

the sentencing hearing w hen the trial court was asked to impose an alternative sent ence to incarceration. The defendant r elied upon the presentence report, the community corrections report, and the presumption he was a favorable candidate for alternative sentencing. Tenn. Code Ann . § 40-35-102(6). The defendant was thirty y ears ofage when he was sentenced. The defendant w as divorced. He has one child. The defendant lives with hi s parents and his son. He has a high school education. When the defendant challenges the manner of se rving a sentence, it is the duty of this court to conduct a de novo revie w of t he record with a presumption that “the determinationsmade by the court from which the appeal is taken are correct.” Tenn. C ode Ann. § 40-35-401(d). I n this case, the presumption of cor rectness does not apply. As previouslystated, the defendant did not present testimony at the sentencing hea ring. The trial court decide d th e question of alternative sentencing based upon the present ence report and the community correcti ons report. Thus, the trial court did not predicate his ruling upon the credibility o f any witnesses. This c ourt, like the trial cour

t, can view the uncontroverted reports a nd determine the issue. The defenda nt has the duty of convinci ng this court the failure of the trial court to impose alternative sentencing was clearly er

roneous. Sentencing Commiss ion Comments to Tenn. Code Ann. § 40-35-401(d); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); State v. Fletcher , 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991). In thi s case, the defendant has failed to establish the trial court abuse d its discr etion or the court’s rul ing was clearly erroneous. If an accused is convic ted of a Class C, D, or E felony and is sentenced as

either
an especially mitigated offender or a standard off ender, there is a presumption, rebuttable in nature, that the accused is a favorable candidate for alte rna tive sentencing unless disqualified by some provision of the Tennessee Criminal Sentencing Reform Act of1989. Tenn. Code Ann. § 40-35-102(6). The sentencing process must ne cessarily commence w ith a determination of whether the accused is entitled to the benefit of

the presumption. Ashby , 823 S.W.2d at 169; State v. Bonestel , 871 S.W .2 d 163, 167 (Ten n. Crim. App . 1993). As the supreme4

court said in Ashby : “If [th e] determ ination is favorable to the defendant, the trial court must presume that he is subject to alternative sentencing . If the court is presented w ith evidence sufficient

to overcome the presumption, then it may sentence the defendant to confinement according to the statutor y provision[s].”

823 S.W.2d at 169. The presumption
can be successfully reb utted by facts contained in the presentence report, evidence presented by the state, the testimony of the accused or a defense witnes s, or any other source provided it is

made a part of the record. Bonestel , 871 S.W.2d at 167. This court is of the opinion the record in thi s case rebuts the presumption o f alternat ive sentencing. The defendant was convicted of se lling marijuana, a felony, on May 22, 1992, and was sentenced to pay a fine of $1,000 and serve one year in confinement. He has also been convicted of public drunkenness. He admitted smoking marijuana twice
a week for an extended peri od of time, and he continued smoking ma rijuana after the commission of the offenses in question. This constitutes criminal behavior on his part. He admitted he has continued to consume alcoholic beverages on a weekly basis afterthe commission of the offenses in questio n. He stated he had a problem with alcohol from 1990 to 1995, yet he continues to consume alcohol. He admits he has a “probl em” with marijuana althoug h he has never sought help for this addiction. The trial court foundthat confinement was requir ed to avoid depreciating the serious nature of these offenses. Tenn. Code Ann. § 40-35-103( 1) (B). The c ourt further found confinement was necessary to det er other citizens

who might h ave the proclivity to commit these offenses. Tenn. Code Ann. § 40-35-103(1)(B ). Given the defendant’s pri or history of criminal convicti ons and criminal behavior, his flaunting of the laws of this State between the commission of these crimes and the sentencing proceedings, and his failure to seek assistance for his addiction to alcohol and drugs, there is a serious question of whether the defendant can be rehabilitated. Ten n. Code Ann. § 40-35-103(5).

_______________

_____________________ _______ _ JOE B. JONES, PRESIDING JUDGE5

CONCUR:

______________________________________ PAUL G. SUMMERS, JUD GE

______________________________________ DAVID G. HAYES, JUDG E