IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 2000 SESSION STATE OF TENN ESSEE, ) ) NO. W1999-00809-CCA-R3-CD Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, MICHAEL STEVENSON, ) JUDGE ) Appellant. ) (Sentencing)
FOR THE APPELLANT : ARCH B. BO

YD III 217 Exchange Ave. Memphis, TN 38105-3503 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter MARVIN S. BLAIR, JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General STEPHEN P. JONES Assistant

District Attorney

General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947

OPINION FI LED:
AFFIRMED JOE G. RILEY, JUDGE 

# FILED February 15, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk2 OPINION
The defendant pled guilty to two counts of promotin g prostitution, Class E felonies. He was sentenced as a Rang e I standard offender to one year on the first charge and given a consecutiv e six-month sentence on the s econd charge. In this appeal as of right, defendant challenges: (1) the length of his sentenc e; (2) the consecutive nature of his sentences; and (3) the denial of his request for al ternative sente ncing. Upon our review of the r ecord, we AFFIRM the judgment of the trial court
.

I. FACTS
The defendant owned a massage parlor, "Lisa D reammakers." On May 29, 1997, as a resu lt of an undercover operation, th e defendant was arrested and charged with promoting prostitution.
Wh ile free on bond for the above charge,defendant once again ope ned a similar business under the name "Pink Fl amingo." On November 8, 1997, the vice squad conducted an undercover investi gation ofthe new establishment. De fendant was again arrested and charged with promoti ng prostitution.
While on bond f or thi s second charge, defendant agai n opened a similar business un der the nam e “American Way Mini Spa.” Sever al months later the women were arrested, and defendant closed the establishment. Defendant was not charged with regar

d to the third establishment.

On Ma y 18, 199 8, defendant pled guilty to both charges of promoting prostitution and was sentenced for these Cl ass E felonies as a Range I stand ard offen der to one year on the first char ge and received a consecutive six-mon t h sentence on the second charge. Defendant ap peals these sentences.3 II. SENTENCING A. Length o

f Sentence Defendant contends the trial cour t inappropriately w

eighed the enhancement and mitigating factors and i mposed excessive sentences. However, as the State points out, the statutory minimum sentence for a Range I, C lass E felony is one year. Tenn. Code Ann. § 40-35-112(a)(5 ). However, Tenn. Code Ann. § 40-35- 211(2) authorizes the trial court to impose a lesser punishment where the minimum punishmentis one year. In case number 98-00989 defendant was given a sentence of one year, and in case number 98-07416 defendant was give n a six-mon th sentence. Since the defendant has failed to assert any

credible argument as to w hy his sentences should be further mitigated, we find this i ssue to be without merit.
The state contends the six-month sentence for the Class E felonyis not authorized; therefore, the state seeks an increased sentence to on e year. As previouslystat ed, Tenn. Code Ann. § 40-35-211(2) spec ifically authorizes

such a sentence. The state’s issue i s likewise without merit. B. Consecutive Sentencing Defendant argues consecutive s entencing was inappropr iate. Defendant claims his fami ly history, wo rk history, and church and community involvement since his arrests shoul d outweigh the fa ctors for conse cutive sentencin g. Defendant was on bail for the first felony offense when he com mitted the second felony offense. Thus, consecutive sentencing was mandatory. See

Tenn. R. Crim. P. 32(c)(3) (C). This issue is w ithout merit. C. Alternative Sentencing Defendant argues that an offen derwho commits a Class E felony is presumed to be a favorable candidate for altern ative sentencing. See Tenn. Code Ann. § 40-35-102(6). Therefore, he claim s the trial court erred in denying his request for alte rnative sentenc ing.4 Under the Criminal Sentencing Reform Act of 1989, trial j udges are encouraged to use alternatives to incarceration. An especially mitigated or standard offe nder convicted of a Class C,D or E felony is presumed to be a favorabl e candidate for alternative sentencin g options in the absence of ev iden ce to the contrary. Tenn. Code Ann. § 40-35-102(6). In determining if incarcer ation is appropriate, a

trial court may consi der the need to protect society by restraining a defendant having a long history of criminal conduct, the ne ed to av oid depreciating the ser iousness of the offense, whether confinement is p articularly appropriate to effectively deter others likely to commit similar offens es, and wh ether les s restrict ive measures have often or recentl y been unsuccessfully applied to thedefendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991).
The trial court heard impressive testimony concerning the defendant’s efforts toward rehabilitation which bega n aft er his last illegal business was closed. However, the trial court noted the defendant’s previous history . The defendant has sixteen prior convictions,two of which wer e forpromoting prostitution, and has been on probation on four separate cases.While on bond for the first charge of promoting prostitution, the defendant opened his business under another name and continued to violate the law. W hen he was arrested a second time and again released on bond, defendant opened the business und er yet a third name. He only ceased to conduct illegal acti vities when the women i n his establishment were arrested. It is cl ear f rom defendant’s conduct that less r estrictive measures of punishmentand past attempts at rehabilita tion have, in the words

of the trial judge, “failed miserably.” The trial court correctly hel d that defendant’s “criminal history is so bad... [i]t would depreciate the seriousness of these offe nses if [he] just walks out free after slapping the law in the face on numerou s occasions.”
In light of the defendant’s prior cri mi nal history, we ar e unable to find error in the denial of alternativ e sentencing. This issue i s without merit.

CONCLUSION5 We find no reason to disturb the sentence of the tr ial court . Theref ore, we AFFIRM the judgm ent belo w.

____________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JOHN EVERETT WILLIA MS, JUDGE

____________________________ ALAN E. GLENN, JUDGE