1

 Uncontested fines and/or restrictions also accompanied these pleas.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 23, 2002

STATE OF TENNESSEE v. SCOTT L. HAYCRAFT

Direct Appeal from the Criminal Court for Sullivan County

No. S44,867 Phyllis H. Miller, Judge

No. E2001-02922-CCA-R3-CD

January 30, 2003

The defendant pled guilty to violating a habitual traffic offender order and to a second offense of

driving under the influence of an intoxicant. Pursuant to his plea agreement the defendant received

a sentence of three years as a multiple offender for violating the habitual traffic offender order and

eleven months and twenty-nine days for the second offense of driving under the influence.

1

 The trial

court ordered these sentences to run concurrently. At the conclusion of a subsequent sentencing

hearing, the trial court denied the defendant’s request for probation or any other form of alternative

sentencing. Through the instant appeal the defendant challenges this denial. After reviewing the facts

and relevant caselaw, we find the denial appropriate concerning the violation of the habitual traffic

offender judgment and, therefore, affirm the trial court’s determination in this regard. We also affirm

the denial of alternative sentencing with respect to the defendant’s second offense of driving under

the influence. However, because of a conflict between the transcript of the sentencing hearing and

the judgment, we remand this case for correction of the judgment.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed and Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.

WOODALL, JJ., joined.

Leslie S. Hale, Blountville, Tennessee, for appellant, Scott L. Haycraft.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;

Greeley Wells, District Attorney General; and William B. Harper, III, Assistant District Attorney

General, for appellee, State of Tennessee.
2

 Because the defendant does not contest the facts surrounding the offenses, we will only briefly address these

here. Relevant factual matters from the sentencing hearing will be provided in the analysis of the defendant’s issue before

this Court. 

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OPINION

Factual Background2

Prior to the trial court’s acceptance of the plea, the prosecution essentially stated that on

November 18, 2000, a Kingsport police officer had seen the defendant driving on a public road.

Recognizing the defendant as an individual whose license had been revoked and who had been

declared a habitual traffic offender, the officer stopped the defendant and found him to have red eyes

along with an odor of alcohol about him. After the defendant performed poorly on field sobriety

tasks, the officer placed the defendant under arrest. The result of a subsequent intoximeter test

revealed the defendant’s blood alcohol level to be .12. Furthermore, the prosecution indicated that

on April 16, 1994, the defendant had been convicted of driving under the influence and on December

20, 1995, had been declared a habitual traffic offender.

Denial of Alternative Sentencing

The defendant’s sole issue in this case revolves around the trial court’s refusal to grant him

probation or any other form of alternative sentencing. “When reviewing sentencing issues . . . , the

appellate court shall conduct a de novo review on the record of such issues. Such review shall be

conducted with a presumption that the determinations made by the court from which the appeal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d). “However, the presumption of correctness

which accompanies the trial court’s action 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 conducting our review, we must consider a

defendant’s potential for rehabilitation, the trial and sentencing hearing evidence, the pre-sentence

report, the sentencing principles, the sentencing alternative arguments, the nature and character of

the offense, the enhancing and mitigating factors, and the individual defendant’s statements. Tenn.

Code Ann. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at 169. We are also to recognize that the

defendant bears the burden of demonstrating that the sentence is improper. Ashby, 823 S.W.2d at

169. 

Moreover, Tennessee Code Annotated section 40-35-103 subsection (1) provides that

sentences involving confinement are to be

based on the following considerations:

(A) Confinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to others likely
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to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently been

applied unsuccessfully to the defendant.

Tenn. Code Ann. §40-35-103(1); see State v. Batey, 35 S.W.3d 585, 588 (Tenn. Crim. App. 2000)

(quoting same). Additionally, a trial court may consider the enhancement and mitigating factors set

out in Tennessee Code Annotated sections 40-35-113 and -114, “as they are relevant to the [section]

40-35-103(1) considerations.” Batey, 35 S.W.3d at 588; see State v. Zeolia, 928 S.W.2d 457, 461

(Tenn. Crim. App. 1996). The trial court should also consider the defendant’s potential for

rehabilitation when determining whether an alternative sentence would be appropriate. Tenn. Code

Ann. § 40-35-103(5); Zeolia, 928 S.W.2d at 461. This Court has further indicated that “a trial court

should consider the circumstances of the offense, the defendant’s criminal record, the defendant’s

social history and present condition, the need for deterrence, and the best interest of both the

defendant and the public” in determining whether to grant or deny probation. State v. Ring, 56

S.W.3d 577, 586 (Tenn. Crim. App. 2001); see State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim.

App. 1995). Finally, Tennessee Code Annotated section 40-35-102(6) states that under certain

circumstances a defendant “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.” Tenn. Code

Ann. § 40-35-102(6). 

Turning to the facts of the instant case, the trial court, by agreement, sentenced this defendant

as a multiple offender. Thus, the trial court correctly found that the defendant is ineligible for the

presumption of suitability for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6).

As is required, the trial court made numerous additional findings. Among these were a few

favorable to the defendant. For example, the court credited him with graduating from high school,

no longer drinking alcohol, and possessing an honorable discharge from the military. Nevertheless,

the trial court afforded the favorable findings little weight.

In contrast, the court made numerous findings detrimental to the defendant’s request for

alternative sentencing. For instance, the trial court determined that the defendant had an extremely

poor social history; possessed criminal convictions beyond those necessary to establish the

appropriate range of sentencing; had a previous history of unwillingness to comply with sentences

involving release into the community; and had committed the felony at issue while on parole. Of

these factors, the court indicated that it placed great weight on the defendant’s extensive history of

criminal convictions and prior unwillingness to comply with conditions of release. The court went

on to find that the defendant’s criminal history evidenced a clear disregard for the laws and morals

of society; that there had a been a failure at past efforts to rehabilitate him; that service of the

sentence was necessary to deter the defendant and others similarly situated; that confinement is

necessary for the protection of society in view of the defendant’s “long history of criminal conduct”;

etc.

After reviewing the record, we readily hold that the trial court’s denial of alternative

sentencing with respect to the habitual motor vehicle offense was appropriate. Although not cited

by either the defense or the State in their respective briefs, this Court notes that Tennessee Code
3

 A 2002 amendment to this statute added a new (1) enhancement factor, renumbering the already existing

factors (1) through (22) as (2) through (23). See Tenn. Code Ann. § 40-35-114 “Amendments.” For the purposes of this

opinion, we will use the previous designations applicable at the time of sentencing.

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Annotated Section 55-10-606(c) deprives courts of the power to suspend sentences for violating an

habitual motor vehicle offender order unless the act of driving while the order is in effect is

necessitated by an emergency. There is not proof that this is the situation in the instant case. 

With regard to the D.U.I. sentence it appears that during the years spanning 1984 to 2001,

the defendant amassed in excess of fifty convictions, including driving on a revoked license, passing

worthless checks, assault, arson, burglary, and robbery. These greatly exceed the convictions

necessary to support his Range II sentence. See Tenn. Code Ann. § 40-35-106, -107, -108 (1997);

Tenn. Code Ann. § 40-35-114(1) (Supp. 2001).3 Furthermore, the record reflects that the defendant’s

parole has been revoked on multiple occasions thereby evincing the defendant’s failures “to comply

with the conditions of a sentence involving release in the community.” See Tenn. Code Ann. § 40-

35-114(8) (Supp. 2001). In fact, the defendant committed the instant offense while on parole. See

Tenn. Code Ann. § 40-35-114(13)(B).This proof amply supports the conclusion that “[c]onfinement

is necessary to protect society by restraining a defendant who has a long history of criminal conduct”

and that “[m]easures less restrictive than confinement have frequently or recently been applied

unsuccessfully to the defendant.” See Tenn. Code Ann. § 40-35-103(1)(A), (C).

While not challenging these findings, the defendant argues that the trial court did not

“properly consider the favorable aspects of the defendant’s present condition at the time of the

sentencing hearing and” his efforts to rehabilitate himself. From our review we find that the trial

court did consider the defendant’s condition at the time of sentencing. The weight to be afforded

any particular mitigating factor is left to the discretion of the trial court. State v. Kelley, 34 S.W.3d

471, 483 (Tenn. Crim. App. 2000). We find no abuse of discretion in the weight afforded by the trial

judge to the favorable information provided by the defendant. This issue is without merit.

D.U.I. Judgment

At the end of the defendant’s argument regarding sentencing on the habitual motor vehicle

offense, he contends that the trial court erred in sentencing him to incarceration for the full sentence

on his second conviction for the offense of driving under the influence conviction. In announcing

the defendant’s sentence, the trial court stated as follows:

[Y]ou’re ordered to serve your sentence [on the violation of the habitual traffic

offender order] at three (3) years, Range II multiple offender in the Tennessee

Department of Corrections.You’re ordered to serve the concurrent sentence of eleven

(11) months, twenty-nine (29) days in the Sullivan County Jail. Now, I don’t know

which sentence will swallow up the other one. (Emphasis added.)

The judgment form indicates that the defendant is sentenced to eleven months and twenty-nine days;

however, the section following “Period of Incarceration to be Served Prior to Release on Probation”
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has been completed with “45” days, and the judgment further states that “45 DAYS MUST BE

SERVED CONSECUTIVELY DAY FOR DAY.” Both the trial judge and the prosecutor signed this

judgment. We further observe that neither the guilty plea form nor the transcript of the plea

proceeding alleviates the confusion on this matter, and we note that the State does not address the

problem within its brief.

When there is a conflict between the transcript of evidence and the judgment or court minutes

the transcript controls. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). As noted,

the trial judge’s comments in the transcript of the sentencing hearing appear to sentence the

defendant to full service of an eleven-month, twenty-nine-day sentence for second offense D.U.I.

Indeed, from his brief this appears to be the defendant’s understanding of his sentence. For the

reasons, noted earlier this Court finds that full service of an eleven-month, twenty-nine-day sentence

is amply supported by this record and the trial judge’s action in ordering such is affirmed. However,

because of the conflict between the judgment and the transcript, we remand this case to the trial court

for correction of the judgment as may be appropriate. Id.; Tenn. R. Crim. P. 36.

Conclusion

In light of the foregoing the judgment of the trial court is affirmed and the case remanded for

further proceedings in accordance with this opinion.

___________________________________ 

JERRY L. SMITH, JUDGE