IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

SEPTEMBER 13, 2000 Session

STATE OF TENNESSEE v. JOSHUA DAILEY

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 Habitual Motor Vehicle Offender Act. The trial court sentenced Defendant to

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

the first sentence to be served in split confinement, with 300 days incarceration in the county jail

followed by placement in Community Corrections. The Defendant appeals, challenging the

length of the total effective sentence and arguing that he should serve the entire sentence in

Community Corrections. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

DAVID G. HAYES, J., joined.

Shawn G. Graham, Maryville, Tennessee, Assistant District Public Defender, for the appellant,

Joshua Dailey.

John Bobo, Assistant District Attorney General; and R. Stephen Jobe, Assistant District Attorney

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 Defendant agreed that the

trial court would determine the length and manner of service of the sentences at a subsequent

sentencing hearing. The trial court sentenced Defendant to two years for each of the Class E

felony convictions as a Range I Standard Offender. The trial judge further ordered the sentences

to be served consecutively to each other, and consecutively to Knox County sentences for which
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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 occurred

on April 3, 1999. In the first sentence, the Blount County Circuit Court ordered Defendant to

serve 300 days in the county jail, with the balance of the sentence served in Community

Corrections. The trial court ordered the entire sentence for the other consecutive sentence 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 sentence

given to him should be reduced to three years and that all of the effective sentence should be

served in Community Corrections. Therefore, Defendant argues that his total effective sentence,

once reduced, should be served with no confinement in the county jail.

When a defendant makes a challenge to the length, range, or manner 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. See Tenn. Code Ann. § 40-35-401(d) (1997). 

We condition this presumption upon an affirmative showing in the record that the trial judge

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 sentencing principles, the enhancing and mitigating factors, arguments

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 showing that the sentence is improper is

upon the appellant." Ashby, 823 S.W.2d at 169. The presumption of correctness applies in this

case.

In setting the length of the sentences, the trial court found enhancement factors (1)

(Defendant’s prior criminal record) and (8) (Defendant has a previous 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, however, that the sentences should be mitigated because: (1) all his prior convictions,

except one, are for misdemeanors; (2) all but one are more than two years 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 occurring

in January and February 1997). The record further shows that while on probation for a DUI
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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 were 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 years. 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 served entirely in the

Community Corrections program, with no incarceration, we note that those who possess criminal

histories evincing a clear disregard for the laws of society, and those who evince failure of past

efforts at rehabilitation, are given priority regarding incarceration. Tenn. Code Ann. § 40-35-

102(5) (1997). Furthermore, as found by the trial court, a sentence involving incarceration can

be based upon the fact that measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-103 (1)(C) (1997). In

addition, confinement is justified whenever society should be protected by restraining a

defendant who has a long history of criminal conduct. Defendant was forty-four years old at the

time of sentencing, and his criminal conduct, outlined above, began when he was thirty-one years

old. Accordingly, the trial court did not err by ordering 300 days confinement in the county jail.

CONCLUSION

Having found no error, we affirm the judgment of the trial court.

___________________________________ 

THOMAS T. WOODALL, JUDGE