# FILED April 30, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) C.C.A. No. 03C01-9604-CC-00162 ) CARTER COUNTY Appellee, )

) Hon. Arden L. Hill, Judge VS. ) ) (SENTENCING) MILES V. TOLLEY, ) No. 11612 BELOW ) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : ROBERT Y. OAKS JOHN KNOX WALKUP Office of the Public Defender Attorney General and Repor ter Main Courthouse Elizabethton, TN 37643 WILLIAM DAVID BRIDGERS Assistant Attorney Gener al RANDALL E. REAGAN 450 James Robertson Parkwa y 602 Gay Street, Suite 905 Nashville, TN 37243-0493 Knoxville, TN 37902 DAVID E. CR OCKETT District Attorney General Rt. 19, Box 99 Johnson City, TN 37601 KENNETH C. BALDWIN Assistant District A

ttorney General Carter County Courtho use Annex Elizabethton, TN 37643

OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK, Special Judge2 OPINION
The defendant was charged in the i ndictments with attempted aggravated rape and aggravated burglary. He entered a plea of guilty t o attempted aggravated rape. Following hissentencing hearing, he w as sentenced to serve eight years in the Dep a rtment of Corrections. The tri al court denied the petitioner ’s request for suspended sentence.

The only issue present ed for review in this a ppeal as of righ t i s the trial court’s denial of the

defendant’s petition for probation or alternativ e sentencing to community

corrections. A brief review of the facts is necessaryfor a determination of the issue.

At around midnight on Septembe r 18, 1 994, the defendant entered the resi dence of the victim, wearin g a towel around his face and carrying a butche r knife. He placed the knife at the victim’s throat and att empted to rape her. The victim managed to knock the knife from the defendant’s hand, and a scuffle ensued. As a result o f the altercation the victi m’s glasses were br oken, her nose was cut, and she suffered bruises on her body, problems with her arms, and massive TMJ. Addition ally, since the incident the victim is continuously afraid. She no longer feels safeat home unless her doors are locked. Her husband must lock her in the house when he leaves so that s he feels safe.

The defendant, who was a neig hbor of plaintiff, denied that he entered the home with any intention o f raping the victim. He blamed his long-term alcoholism forthe eve nts in question. He contende d that he was so drunk on the da y i n question that he had no idea w hat he was doi ng. He expressed remorse for his actions and testified that since the occurrence he had participated in two different treatmentprograms. His wife testified that since his treatment for alcoholism he is
a very different person. She also testified that she and defendant both had cur rent3

medical problems and that she needed t he defe ndant to receive probation so that he could take care of her.

At the conclusion of the hearing on defendant’s application for probation, the trial judge denied the request for either probation or community corrections, finding that the defendant was a dangerous v iolentperson who used a deadly weapon in the commission of his offense.

When a defendant complains of his sentence, w e must conduct a

de novo review with the presumption of correctness of the actions of the trial court. T.C.A. §40-35
- 401(d). The burden of showing that the sentence is improper is upon the appeal ing party. Id. Sentencing Commission Comments ; State v. Holland , 8 6 0 S.W.2d 53, 60 (Tenn. Crim. App. 1993). This presumption, however, “is cond itioned upon the affirmative showing in the record that

the trial court considered the sentencing principles

and all relevant facts and circumstances”. State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991).

The defendant entered a plea of guilty to attempt to commit aggrav ated rape,
a Class B felony. As part of the plea ag reement he received the mini mum Range I sentence of eight years . The onl y issue before the court is whether he should receive some fo rm of alternat ive sentencing.

The defendant is not entitled to a community corrections sentence. Persons convicted of violent felony offenses or felony offenses involvingpossess ion of a weapon are not eligible for suc h alternat ive senten cing. See T.C.A. §40-36- 106(a)(3)-(4). A ttempt to commit aggravated rape is such an offense. W hile it is true that persons who commit suc h crimes but have special trea tabl e needs treatable as a result of chronic alc ohol abuse, drug a buse, or mental health problems, may be admitted to the community co rrec tions program, Tenn. Code4

Ann. §40-36-106(c), there is no proof in the record t hat defendant’s needs could best be met by t his alter native. De fendan t acknowl edg es that he has had a significant

drinking problem for well over thirty years. U ntil he was arrested for this offense, he never took steps to cor rect that problem. His voluntary intox ication at the time of the offense is not a defense. This is sue is without merit.

Under T.C.A. §40-35-303(a), a def endan t is eligible to be co nsidered for probation after being sentenced to a t erm of e ight years for a Clas s B felony off ense. However, he is no t considered to be a favorable candidate for such a sentencing option. T.C.A. §40-35-102(5) -(6). It is the defend ant who has the burden of establishingsuitability for probati on. See T.C.A. §40-35-303(b). Eli gibility maybe defeated if any of the f ol lowing factors outweigh the defendant’s rehabili tative capabilities: (1) confinement is necessary to protect so ciet y by restraininga defendant who has a long his tory of criminal conduct;(2) confinement is necessary to avoid d epreciatingthe seriousness of the offense or it is particularly suited to provide an effective deterrence to others likely to commit similar offenses;
or (3) measures less rest rictive th an confinement have frequently been applied unsuccessfully to the defendant. See T.C.A. §40-35-103(1)(A) - (C); State v. Ashby , 823 S.W.2d 166, 169 (Te nn. 1991). The trial co urt relied upon the second sentencing consideration, finding that confinem ent was necessary to deter others from committing similar crimes, and because the cri me involved viole nce and the threat of violence.

The offense in this case is a vi olentfelony perpetrated by the u se of a deadly weapon. It resulted in phy sical and emotional injury to the vic tim. The defendant has not overcome the presumption of correct ness o f the sentence imposed upon him.
The judgment of the trial court is affirmed.5 _______________

_____ _____________

_ CORNELIA A. CLARK SPECIAL JUDGE CONCUR:

__________________________________ JOHN H. PEAY JUDGE

__________________________________ PAUL G. SUMMERS JUDGEIN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE

STATE OF TENN ESSEE, ) C.C.A. No. 03C01-9604-CC-00162 ) CARTER COUNTY Appellee, )

) Hon. Arden L. Hill, Judge VS. ) ) (SENTENCING) MILES V. TOLLEY, ) No. 11612 BELOW ) Appellant. )

JUDGMENT

Came the appellant, Miles V. Tolley, by counsel and also came the attorney general on behalf of the state, and this case w as hear d on the record on appeal from the Criminal Court of Carter County; and upon consideration thereof , this court is of the opinion that there is no reversible error in the judgment of the trial cour t. Our opinion

is hereby

incorporat

ed in this j udgment as if set out ver batim. It is, therefore, ordered and adjudged b ythis court that the judgment of the trial court is AFFIRMED, and the case is remanded to the Criminal Court of Carter County for execution of the judgment of that court and for collection of costs accrued b elow. It appears that the appellant is indigent. Costs of this appeal will be paid by the State of Tennessee.
PER CURI AM John H. Peay, Jud ge Paul G. Summe rs, Judge Cornelia A. Clark, Special Judge