1 Unco ntested fines and/or restrictions also a ccom panied these pleas.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on

Briefs A pril 23, 20 02
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 or der and to a second

offense o f driving under the influence of an intoxicant. Pursuant to his plea agreement the defenda

ntreceived
a sentence of three y

ears as a multiple offender for violating the habitual traff ic offender

order and eleven months and twenty-nine day s for the second offense of driving under the influence

. 1 The trial court ordered the se sentences to ru n c on cu rr en tl y. At the conclusion of a subsequent sentencing hearin g, the trial court denied the defendant’s request for probation or any other form

of alternative
se ntenc ing. Through the instant appeal the defendant c hallenges this denial. After reviewing the f act s and releva

nt casel aw, we f

ind the de nial appr opriate concer ning the violation o f the hab itual tra ffic offender judgment and, therefore, affirm the trial court’sdetermination in this regard. We also affirm the denial of

alterna tive sente ncing w ith respect to the defendant’s second offense of driving under the influence. However, because of a conf lict between the transcript of the sentencing hearing and the judg ment, we r

emand thi s case f

or corr ection of the judg ment. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d and Rem anded.

J ERRY L. S MITH , J., delivered the opinio n of the c ourt, in which D AVID G. H AYES and T HOM AS T. W OODA LL , JJ., joined.

Leslie S. Hale , Blountville, Ten nessee, for appe

llant, Sco tt L. H ay craft.

Paul G. Summers, Attorney Gene ral & Reporter; Elizabeth B. Marney , AssistantAttorney Genera l; Greeley Wel ls, Dist

rict Attorney Ge

neral; and William B. Harper, I II , Assistant District Attorney General, for appellee, State of Tenne ssee.2 Because the defendant does not cont est t

he fact s surr ounding t

he off enses, we will only briefly address these here. Relevant factual matters f rom the sentencing heari ng will be provided in the analysis of the defendant’s issue before this Co urt.
-2- OPINION

Factua l Background 2

Prior to the tria

l court’saccept

ance of the plea , the pros ecution e ssentiall y st ated tha t o n Nove mber18 , 2000, a Kingsport police officer had see n the defendant driving on a public road. Recognizing the defend ant as an individual whose license had been revoked a nd who had been declared a habitual traffic offender, the offic er stopped the defendant and found him to have red ey es along with an odor of alc ohol abou t him. After the defe ndant per formed p oorly on field s obriety tasks, the officer placed the de f endant under arr

est. The resu

lt of a sub sequent 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 influenc e and on December 20, 1995, had been declared a habitual traf fic offender.

Denial of Alt

ernative Sentencin g
The defenda

nt’s sole i ssue in thiscase revolves around the trialcourt’s refusa l to gra nt him probation or any other

form of alternative sentencing. “When re viewing sentencing issues . . . , the appella te court shall conduct a de novo review on th e record of such issues. Such review shall be conducted with a pr

esumption

that the d etermina tions made

by t he court from whic

h the appe al is taken ar e correct.” Ten

n. Code An

n. § 40-35 -401(d) . “However, the presumpt

ion of cor

rectne ss 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 a ll 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 e vidence, the pre-sentence report, the sentencing principles, the sentencing a lternative arguments, the nature and c haracter of the offense, the enhancing and mitiga ting factors, and the individualdefendant’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 demons trating

that the se

ntence i s imp roper. As hb y, 823 S.W.2d at 169. Moreover, Tenness ee C ode Annotated section 40-35-103 subsection (1) provides that sentences involving confinement are to be based on the follow

ing con siderati ons: (A) Confineme

nt is nece ssary

to protect society

by restraining a defendant who has a long h istory of crimin al conduc

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

is particularly suited to provide a n effective deterrence

to others likely-3-

to commit similar offenses; or (C) Measures less restrictive than confinement have f r equently or recently bee n applied u nsucces sfully

to the def

endant.

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 conside

r the enhancement and mitigating factors set outin Tennessee Code Annotated sections 40-35-113 and -114, “a s they are relevant to the [section] 40-35-103(1) considerations.” Batey , 35 S.W.3d at 588; see State v. Z eolia , 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. § 40-35-1 03(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 hi sto ry and pre sent condition, the need for deterrence, a nd the best interest of both the defendant a nd the public” in determining whether to gra nt or deny proba

tion. State v. Ring , 5 6 S.W.3d 577, 586 (Tenn. Crim. App. 2001); see State v. Black , 924 S.W.2d 9 12, 917 (T enn. Crim. App. 1995). F

inally , Tenn essee Co de Annota ted sect ion 40-35- 102(6) st

ates tha t under c ertain circumstances a defendant “who is an especially mitig ated or standard offender convicte d of a Class C, D or E felony is pre sumed to be a favorable candidate for a lternative sentencing.” Tenn. Code Ann. § 40-35-102(6). Turning to the fa

cts of the instant ca se, the tr

ial cour t, by agree ment, 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 se ntencing. 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 g raduating from

high school,
no longer drinking alcohol, andpossessing an honorable discharge from the military. Neverth eless, the trial court af forded t he favor able fin dings litt

le weig ht. In contrast, the court made numerous findings detrimental to the def endant’s reques t fo r alternative sentencing. For instance, the trial cour t determinedthat the defenda nt had an e

xtremely poor so ci al hi st or y; p os se ss ed cr im in al co nv ic ti on s b eyo nd th os e n ec es sa ry to esta blish the appropr iaterange of sente

ncing; h ad a pre

vious histo

ry of unwilli ngness to comply with sentences involving releas e into the community ; and had c ommi tte d the felony at issue while on pa role. Of these factor s, the court indicated that it placed great we ight on the defendant’s extensivehistory of criminal convictions and prior unwillingness to comply with conditions of relea se. The court went
on to find tha

t the def endant’ s crimina

l history evidenc ed a cle ar disre gard f or the la ws and mor

als of society ; that there had a been a failure at past effor ts to rehabilitate him; that service of the sentence wa s n ec es sa ry t o d et er th e d ef en da nt an d o th er s s im il ar ly s ituated; t hat conf inement is necessary for the protection of society in view of

the defendant’s “long history of criminal conduct”; etc. After

reviewing the record, we r eadily hold tha

t the trial court’s denial of alternative sentencing with respect to the habitua l motor vehicle offense was appropriate. Althoug h not cited by either the defense or the S tate in their respective briefs, this Court notes that Tennessee Code3 A 2002 amendment to thi s st atut e added a new (1) enh ancement f actor, renumberi ng the a l ready existi ng factors (1) thro ugh (2 2) as (2 ) throu gh (2 3). See Tenn. Code Ann. § 40-35- 114 “Amendmen ts. ” For the pu rpo ses of this opinion, we will use the previous designat ions applicable at t

he time of sent encing.
-4- AnnotatedSection 55-10-606(c) deprives courts of the power

to suspend sentences for violating an h abitual motor veh

icle off ender or der unle ss the ac t of driving while the orde r is in effe ct i s necessitated by

an emergency . There is not proof that this is the situation in the instant case. With regar

d to the D. U.I. sentenc e it appe ars that d uring th e y ears s p anning 1984 to 2001, the defendant

amassed in excess of fifty c onvictions, including driving on a revoked license, passing worthles s ch ec ks , a ss au lt , a rs on , b ur gl ar y, a nd ro bb er y. These grea tl y exceed the convictions
nec ess ary t o su ppo rt h is Ran ge 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 re flects that the defendant’s parole has been revoked on multiple occasions thereby e vincing the defendant’s failure s “to comp ly withthe conditions of a sentence involving release in the c ommunity.” See Tenn. Code Ann. § 40- 35-114(8) (Supp. 2001). In fact, the def endant committed the instant offense while on parole. See Tenn. Code Ann. § 40-35-114(13)(B). This proof amp ly supports the conclusion that “[c]onfinement is necessary

to protect society by

restraining a d

efenda nt who hasa long h

istory of crimin al conduct” and that “[m]ea sures le ss rest rictive than confinement have frequently or recently

been applied unsuccessfully to the de

fendant.” See Tenn. Code Ann. § 40-35-103(1)(A), (C). While not challenging thes e findings, the defendant arg ues that the trial court did not “properlyconsi der the favorable aspects of the de fendant’s present condition at the time of the sentencing hearing and” his effo rts 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 mitig ating f

actor is left to the discretion of the trial court. State v. Kelley , 34 S.W.3d 471, 483 (Tenn. Crim. App. 2000). We findno abuse of discretion in the weight afforde d by the trial judge to the favo rable in formatio n provide d by

the defe ndant. Th

is issue is without mer

it.

D.U.I. Judg

ment At the end of the defendant’s arg ument regarding sentencing on the habitual motor veh icle offense, he contends that the trial court erred in sentencing him to incarceration for the full sentence
on his second co nvict ion for the offense of driving under the influe nce conviction. In announcing the defe ndant’s s entence , the tria

l court sta ted as fo llows: [Y] ou’re ordere d to serve you r sentence [on the

violation o f the hab itual traffi c offender order] at three (3) y

ears, Range I

I multiple off

ender in the Tennessee Department

of Correct

ions. You’re

ordered to serve the concurrent sentence of eleven (1 1) mo nt hs , t we nt y-n in e ( 29 ) d ays in the Sulliv an County Jail. Now, I don’t know which sentence will swallow up the other one. (Emphasis added.)

The judgment form

indicates that the defenda nt is sente nced to e leven mon

ths and twe

nty -nine da

ys; however, the section following “Period of Inc arceration to beServed Prior to Release on Probation”-5-

has been co mpleted w ith “45” d ay s, and the judgmen t further st ates that “45 DAYS MUST BE SERVED CONS ECUTIVE LY DAY FOR DAY.” B oth t he tri al jud ge and the pr osecutor signed t his judgmen t. We furthe

r observ e that ne

ither th e guil ty 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 commen ts in the t ranscript of the sentencing hear ing appear to sentence the defendant to full service of an eleven-month, twenty -nine-day sentence fo r seco nd o ffe nse D.U .I. Indeed, from his brief this appears to be the defendant’s under standing of his se ntence. For the
reasons , noted earlier

this Court finds that full service of an eleven-month, twenty -nine-day sentence is amply supporte d by

this reco rd and the trial judg e’s act

ion in orde

ring suc h is affirmed. However, because of the co nflict be

tween the judgmen t and the t ranscr ipt, 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 ca se remanded for further proceedings in acc ordance with this opinion.

___________________________________ JERRY L. SMITH, JUDGE