IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 14, 2004

STATE OF TENNESSEE v. TRACY LYNN FRANKS

Direct Appeal from the Circuit Court for Hardin County

No. 8290 C. Creed McGinley, Judge

No. W2004-00076-CCA-R3-CD - Filed October 26, 2004

The appellant, Tracy Lynn Franks, pled guilty to aggravated assault, felony reckless endangerment,

and felony evading arrest. Pursuant to the plea agreement, the appellant was sentenced to six years

in the Tennessee Department of Correction for the aggravated assault conviction and four years each

for the reckless endangerment and evading arrest convictions, with the sentences to be served

concurrently. Additionally, the trial court imposed a $500.00 fine for the evading arrest conviction.

On appeal, the appellant argues that the trial court erred in denying him probation. Upon review of

the record and the parties’ briefs, we affirm the judgments of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

ALAN E. GLENN, J., joined.

Richard W. DeBerry, Assistant Public Defender, Camden, Tennessee, for the appellant, Tracy Lynn

Franks.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

Robert “Gus”Radford, District AttorneyGeneral; and John W. Overton, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At the guilty plea hearing on December 10, 2003, the State recited the facts of the offenses

as follows:

This occurred on July 10th of this year. The Defendant was seen

speeding on Pinhook Road. When the officer attempted to pull him

over for that, the Defendant took off. At that time, the officer pursued
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him for some period of time. The Defendant was changing lanes all

over the road. There were other people on the road. That’s why he

was charged with reckless endangerment.

The aggravated assault occurred when the Defendant lost

control of his vehicle and came to a stop. The officer got out of the

vehicle at that time to apprehend the Defendant. The Defendant

drove his automobile toward the officer. The officer fired some shots

to try to disable the vehicle. The vehicle took off again at that point.

Mr. Franks was able to get out of the vehicle at some point and run

off and was arrested at some point after that.

After entry of the guilty pleas, the trial court held a sentencing hearing. At sentencing, the

State relied upon the presentence report and the facts recited at the plea hearing. Jackie Scott

testified on behalf of the appellant. Scott stated that she had been “working in Court” for more than

twenty years, and had seen the appellant “off and on all that time.” A few days before the appellant

committed the instant offenses, he visited Scott at the Jack Gene Shelter for Women. The appellant

told Scott that he had a problem with drugs and alcohol that he could not overcome without

treatment. Scott advised the appellant that she did not have a place to send him for treatment at that

time and suggested he check with her the following week. Shortly thereafter, the appellant

committed the instant offenses. 

Scott stated that she had spoken with the appellant weekly since he had been in jail. She

believed the appellant wanted help with his alcohol and drug problem, and in her opinion he was

“salvageable.” Scott assured the court that she could make arrangements for the appellant to receive

“long-time” treatment.

In denying probation, the trial court noted that the presentence report included more than five

pages outlining the appellant’s prior criminal history, including at least six prior felonies and

numerous misdemeanor convictions. The court ordered the appellant to serve an effective sentence

of six years in theDepartment of Correction but recommended that the appellant be assessed for drug

and alcohol treatment “within the system.”

II. Analysis

On appeal, the appellant contends that the trial court erred by denying probation. When an

appellant challenges the length, range or manner of service of a sentence, this court conducts a de

novo review with a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d) (2003). However, this presumption is “conditioned 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 (Tenn. 1991). In the event that the record

fails to demonstrate such consideration, review of the sentence is purely de novo. Id. In conducting

our review, this court must consider (1) the evidence, if any, received at trial and at the sentencing
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hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel

relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating

or enhancement factors; (6) any statements made by the appellant on his own behalf; and (7) the

appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210

(2003); see also Ashby, 823 S.W.2d at 168. The burden of showing that a sentence was improper

is on the appellant. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. 

Tennessee Code Annotated section 40-35-102(5) provides that only “convicted felons

committing the most severe offenses, possessing criminal histories evincing a clear disregard for the

laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first

priority regarding sentencing involving incarceration.” A defendant who does not fall within this

class of offenders and who is “an especially mitigated or standard offender convicted of a Class C,

D or E felony is presumed to be a favorable candidate for alternative sentencing options.” Tenn.

Code Ann. § 40-35-102(6). Furthermore, “[t]he trial court must presume that a defendant sentenced

to eight years or less and not an offender for whom incarceration is a priority is subject to alternative

sentencing and that a sentence other than incarceration would result in successful rehabilitation.”

State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-

303(a) (2003).

Because the appellant was convicted as a Range II multiple offender, the appellant is not

entitled to a presumption of favorable candidacy for alternative sentencing. In any event,

considerations for a sentence of confinement can be found in Tennessee Code Annotated section 40-

35-103(1), which provides for confinement when:

(A) [c]onfinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) [c]onfinement is necessary to avoid depreciating the seriousness

of the offense or confinement is particularly suited to provide an

effective deterrence to others likely to commit similar offenses; or 

(C) [m]easures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant.

See also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). 

Additionally, the principles of sentencing reflect that the sentence should be no greater than

that deserved for the offense committed and should be the least severe measure necessary to achieve

the purposes for which the sentence was imposed. Tenn. Code Ann. § 40-35-103(2) and (4).

Further, “[t]he potential or lack of potential for the rehabilitation or treatment of the defendant

should be considered in determining the sentence alternative or length of a term to be imposed.”

Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct and “evincing

failure of past efforts at rehabilitation” is presumed unsuitable for alternative sentencing. Tenn.

Code Ann. § 40-35-102(5). 
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We conclude that the record in this case amply supports the trial court’s denial of probation.

As the trial court noted, the appellant has an extensive history of criminal activity. The presentence

report reflects that the thirty-four-year-old appellant has at least six prior felony convictions as well

as numerous misdemeanor convictions. Additionally, the appellant has a lengthy juvenile record,

beginning at the age of twelve. Despite repeated convictions, the appellant has continued to violate

the law, proving that he is unable to conform his behavior to comply with the law. As this court has

said, “[a] felon’s rehabilitation potential and the risk of repeating criminal conduct are fundamental

in determining whether he or she is suited for alternative sentencing.” State v. Keen, 996 S.W.2d

842, 844 (Tenn. Crim. App. 1999). We find no error in the trial court’s denial of probation.

III. Conclusion

We affirm the trial court’s denial of the appellant’s request for probation.

___________________________________ 

NORMA McGEE OGLE, JUDGE