### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE SEPTEMBER 13, 2000 Session
STATE OF TENNESSEE v. JOSHUA DA ILEY Direct Appeal from the Circuit Court for Blount County Nos. C-11650, C-11651 D. Kelly Thomas, Judge

No. E1999-01342-CCA-R3-CD November 28, 2000

The Defendant, Joshua Dailey, pled guilty to two counts of the Class E felony offense of violation of the Ha

bitual Motor Vehic

le Offender Ac

t. The trial court

sentenced Defe

ndant to two years for each conviction, to be served consecutively . Furthermore, the trial court ordered the first sentenc

e to be served in sp

lit confinement, w

ith 300 days in

carceration in

the county ja

il followed by placement in Community Corrections. The Defe ndant appeals, challenging the length of the tota

l effective sen

tence and arg

uing that he shoul

d serve the entir

e sentence in Community Corr

ections. We affir

m the judgment of t

he trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined.
S hawn G. Graham, Maryville, Tennessee, Assistant District Public Defender, for the a p pellant , Jos hua Dai ley.
John Bob o, Assistant District Attorney General; and R. Stephen Jobe, Assistant District Attorne y General, for the appellee, State of Tennessee.

OPINION The Defendant, Joshua Dailey, pled guilty to two separate counts of violation of the Habitual Motor Vehicle Offender Act (“HMVO”). The State and the Defenda nt agreed that the trial court would determine the length and manner of service of the sentences at a subseque nt sentencing hea

ring. The trial c

ourt sentenced D

efendant to two y

ears for each o

f the Class E felony convictions as a Range I Standar d Offender. The trial judge further ordered the sentences to be served consecutively to each other, and consecutively to Knox County sentences for which-2-

the Defendant was on probation at the time of the commission of the Blount County HMVO offenses.
One offense in the case sub judice occurred on February 4, 1999 and the other occ urred on April 3, 1999. I

n the first sentenc

e, the Blount Count

y Circuit Cour

t ordered Defe

ndant to serve 300 day

s in the county

jail, with the bala

nce of the senten

ce served in Commu

nity Corrections. The trial court ordered the entire sentence for the other consecutive sentenc e to be served in Community Corrections. See Tenn. Code Ann. § 40-35-501 (a)(2) and (3) (Supp. 1999). In his appeal to this Court, Defendant asserts that the total length of the effective sentenc e given to him should be reduced to three years and that all of the ef fective sentence should be served in Community Corrections. Therefore, Defendant arg ues that his total effective sentence, once reduced, s

hould be served w

ith no confinement

in the county

jail. When a defendant makes a challenge to the length, range, or manne r of service of a sentence, this Court conducts a de novo review of the record with a presumption that the determinations made by the trial court are correct. SeeTenn. Code Ann. § 40-35-401(d) (1997). We conditi on this pre sumption upon an affi rmative sh owing in th e record that the trial j udge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Failure of the trial court to comply with the statutory directives removes the presumption of correctness and our review is de novo. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). In conducting our review, we must consider all the evidence, the presentence

report, the sente

ncing principle

s, the enhancing

and mitigating f

actors, argume

nts of counsel, the defendant’s statements, the nature and character of the offense and the defendant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.1999); Ashby , 823 S.W.2d at 169. " The burden of sho wing that the sen

tence is improper

is upon the appellant." Ashby , 823 S.W.2d at 169. The presumption of correctness ap

plies in this case. In setting the length of the sentences, the trial court found enhance ment factors (1) (Defendant’s p

rior criminal re

cord) and (8) (D

efendant has a p

revious history

of unwillingness

to comply with the conditions of a sentence involving release in the community ). See Tenn. Code Ann. § 40-35-114 (1) and (8) (1997). The Defendant admits these factors are applicable , and that the trial court should increase his sentences above the minimum sentence imposed by law. He argues, howev

er, that the sente

nces should be mitig

ated because: ( 1) all his prior con victions, except one, are for misdemeanors; (2) all but one are more than two ye ars old; and (3) the trial court found only two of twenty possible statutory enhancement factors. The record on appeal reflects that Defendant had six prior convictions for DUI , three prior convictions for public intoxication, two prior convictions for driving on a revoked license, and two prior felony convictions for violation of the HMVO Act in 1998 (for offenses occ urring in January and February 1997) . The record further shows that while on probation for a DUI-3-

conviction in 1986 he committed another DUI, and while on probation for another DUI conviction in 1994, he committed another DUI and was also charged with driving on a revoked license. The trial court placed great weight upon the enhancement factors that we re found applicable. Under the facts of this case, we find that the trial court did not err by setting the sentence for each offense at two yea rs. As Defendant was on bond for the felony offense of violation of the HMVO Act when he committed the same offense again on April 3, 1999, the law requires the sentences to be served consecutively. Tenn. R. Crim. P. 32 (c)(3) (C). Regarding Defendant’s argument that the total sentence should be serve d entirely in the Community Corrections program, with no incarceration, we note that those who possess criminal histories evincing

a clear disreg

ard for the laws o

f society, a

nd those who evinc

e failure of pas

t efforts at rehabilitation, are given priority reg arding incarceration. Tenn. Code Ann. § 40-35- 102(5) (1997). Furthermore, as found by the trial court, a sente nce involving incarceration can be based upon the f

act that measure

s less restrictive

than confinement

have frequently

or recently been a ppli ed uns ucces sfull y to the defen dant. Tenn. Code A nn. § 4 0-35- 103 (1 )(C) ( 1997) . In addition, confinemen t is justi fied whenev er society shou ld be protec ted by restrain ing a defendant who has a long history of criminal conduct. Defenda nt was forty-four yea

rs old at the time of sentencing, and his criminal conduct, outlined above, began when he was thirty -one years old. According

ly, the trial

court did not err b

y ordering

300 days con

finement in the co

unty jail.
CONCLUSION Having found no e

rror, we affir

m the judgment of t

he trial court.

___________________________________ THOMAS T. WOODALL, JUDGE