### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. CHR ISTOPHER D. THACKER Direct Appeal from the Circuit Court for Sequatchie County

No. 3756 J. Curtis Smith, Judge

No. M1999-01426-CCA-R3-CD - Decided June 30, 2000

The defendant pled g

uilty to vehicular assault as the result of intoxication and driving on a revoked license. The trial court imposed a three-year sentence for the vehicular assault, and, on appeal, the defendant contends that the tri al court erred by r efusing the def

endant's reque

st for a community corrections sentence. We conclude that the trial court did not abuse its discretion a nd affirm the judgment. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

. W ADE , P.J., delivered the opinion of the court, in which RILEY and O GLE , JJ., joined.
B. Jeffery Harmon, Assistant Public Defender, Jasper, Tennessee, for the appellant, Christopher D. Thacker.
Paul G. Su mmers, A ttorney General & Reporter, Clinton J. Morgan, Assistant Attorney General, and Stephen Strain, District Attorney General, for the appellee, State of Tennessee.

OPINION
The defendant, Christopher D. Thacker, entered pleas of guilt to vehicular assault as the result of intoxication, a Class D felony, and driving on a revoked license. While the record does notinclude the sentence on the latter offense, the trial court imposed a Range I, three-year sentenc e for the vehicular assault. Six other counts, which included two more charges of vehi

cular assault, two charges of driving under the influence (including driving under the influence, third offense), one charge of driving on a revoked license (second offense), and one charge of failure to remain at the scene of an accident involving death or personal injury, were retired upon the defendant's plea. In this appeal of right, t

he defendant co

ntends that the tria

l court erred by r

efusing to allo

w his vehicular assault sentence to be served in a community corrections program. While the record is not complete because of thefailure on the part of the defendant to include a transcript of the hearing on the guilty plea, the evidence available suggests that the trial court had a

sound basis

for the denial of community corr

ections.-2- A recitation of the facts is included in the re port f iled by the Department of Correction. On February 16, 199 8, the defendant, who acknowledged that he had been drinking alcohol, drove his 1985 Camaro head-on into a 1995 Ford Escort. The accident took place in the northbound lane of Highway 127 in Sequatchie County. The defendant was driving in a souther ly direction. As a result of the a ccident, Rebecca Goss (the driver of the Ford Escort), Elaine Lofty, and Mary Rigby were injured. Ms. Goss suffered several broken toes on her left foot. The vehicle she was driving, which was owned b y her father, wa

s a total loss. The defendant left the scene on foot and was ultimately found almost two miles away. He initially contended that an unkno w n person had been driving his vehicle.

The trial court found that the defendant had a prior history of criminal behavior, that there was more than one victim of the offense, and that the defendant had a previous history of unwillingness

to comply with condit

ions involving rele

asein the community. See Tenn. Code Ann. § 40-35-114(1), (3), (8). The trial court observed

that the defendant, nearly 26 years of age at the time sentence was imposed, had a lengthy history of a rres ts, many of which were alcohol related, which bega n a t age 19 and continued until this offense. After observing that the defendant was already incarcerated in the "wor khouse" beca use of a domestic violence situation at the time of sentencing, the trial court imposed a sentence of three years, denied any consideration for probation, and concluded that a Department of Correction sentence was necessary to protect society from future criminal conduct.

When there is a challenge to the length, range, or manner of servic

e of a sentence

, it is the duty of this court to conduct a de nov o review with a presumption that the determinations made by the trial court ar e correct. Tenn. Code Ann. § 40 -35-401(d). 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); see State v. Jones , 883 S.W.2 d 597 (Tenn. 1994) . "If the trial cou rt applies inappr

opriate factors or otherwise

fails to follow the 1989 Sentencing Act, the presumption of correctness falls." Statev. Shelton , 854 S.W.2d 116 , 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the presentence r eport; (3) the principles of sentencing and th

e arguments of counsel relative

to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own beha lf; a nd (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn . Crim. Ap p. 1987). The rec ord in this case demonstrates that the trial court made adequate findings of fact.

Among the factors applicable to probation consideration are the circumstances of the offense; the defendant's criminalrecord, social history and present condition; and the deterrent effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285 (Tenn.1978). Especially

mitigated or standard

offenders conv

icted of Class C,

D, or E felonies are,-3-

of course, presumed to be favorable candidates "for alternative sentencing options in the absence of evidence to the contrary." Tenn. CodeAnn. § 40-35-102(6). With certain statutory exceptions, none of which apply here

, probation must be a

utomatically consi

d ere d by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). M oreover, in Ashby , our supreme court encouraged the grant of considerable discretionary authority to our trial courts in matters such as these. 823 S.W.2d at 171. See State v. Moss , 727 S.W.2d 229, 235 (Tenn.1986). "[E

]ach case must be bottomed upon its o

wn facts." Statev. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). "It is not the policy or purpose of this court to place trial judges in a judicial straight-jacket in this or any other area, and we are always reluctant to interfere with their traditional discretionary powers." Ashby , 823 S.W.2d at 171.

One of t h e purposes of the Community Corrections Act of 1985 was to provide an alternative means of punishment for "selected, nonviolent

felony offende

rs in front-end c

ommunity basedalternatives to incarceration . . . ." Tenn. Code An n. § 40-36-103(1) . The Community Corrections sentence provid es a desired deg

ree of flexibilit

y that may both benefit the defendant and serve legitimate

societal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn.1990). Even in cases where the defendant meets the minimum requirements of the Community Corrections Act of 1985, the defendant is not necessarily entitled to be sentenced under the Act as a matter of law or right

. Taylor , 744 S.W.2d at 922. T he following offe

nders are eligib

le for Community Corr

ections: (1) Persons who, without this option , woul d be incarcerated in a correctional institution; (2) Persons who are convicted of property-related, or drug/alcohol-related

felony offenses

or other felony of

fenses not in volving crimes against the person as provided in title 39, chapter 13, parts 1-5; (3) Persons who are convicted of nonviolent felony o

ffenses; (4) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved; (5) Persons who do not

demonstrate a

present or past pattern of behavior indicating violence; (6) Persons who do not de monstrate a pattern of

committing violent offenses; and (7) Persons who a

re sent enced to incarceration or on escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a) (emphasis added).-4- Additionally, there is a "special needs" catego ry of eligibility for Co mmunity Corrections: Felony offenders not otherwise eligible under subsection (a ), and who would be usually c ons idered unfit for probation due to histories of chronic al cohol, drug abuse, or me ntal health proble

ms, but whose special needs are treatable and could be served b

est in the community rather than in a correctionalinstitution , may be considered eligible for punishment in the community under the provisions of this chapter.
Tenn. Code Ann. § 40-36- 106(c) (emp has is added). To be eligible for Community Corrections under subpart(c), thedefendant must first be eligible for probation under Tenn. Code Ann. § 40-35- 303. State v. Staten , 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).

The defendant compla

ins that due to

his chronic alcohol and drug abuse and mental health problems, he qualified under the special needs section

and should have been sentenced to a community

corrections pro

gram. In response, the state first points out that the defendant has failed to include in the rec

ord a transcript

of the guilty plea a

nd argues that this

court sh ould treat the j udgment of

the trial court as

presumptively cor

rect. In the alte

rnative, the state

contends that a community

corrections sentence

was properly denied due to the defendant's prior criminal history, an escape from the workhouse in September of 19 98 , and the escalating nature of his criminal conduct since the age of 19.

Initially, the record is incomplete. The failu re to include the guilty plea hearing transcript require s this court to presume that any missing information would have supported the th ree-year

sentence to the Department of Correction. See State v. Keen , 996 S.W.2d 842 (Tenn

. Crim. App. 1999); State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (stating that when necessary parts of the record are missing on appeal, this court must presume that the trial court's decision was correct). More importantly, the investigative rep ort provided by the Department of Correction, which is included in the record in its entirety, supports the decision of the trial co urt

. Although the defendant has no prior felony conviction

s, he has been con

victed of theft of

property under $500.00, two instances of driving under theinfluence, driving on a revok ed license, assa

ult, possession of drug paraphe rnalia, evading a

rrest, resisti

ng a rrest, misdemean

or escape, publi

c intoxication, and underage drinking. While the defendant was on probation on the theft offense, he violated the terms of his release, resulting in a revocation. The defendant wa s al so on probation when this offense was committed. While on bail for this offense, the defendant was charged with and eventually convicted of the assault, possession of drug paraphernalia, escape, and evading arrest offenses. The defendant was in custody at the time sentence was imposed.

The Departme

nt of C orrection repor

t indicates that the

defendant ackn

owledges a problemwith alcohol. Although he denies having any drug dependency, he has used marijuana and barbiturates.

On the positive s ide, while in jail awaiting the d

isposition of this ca

se, he began to participate in a substance abuse treatment program.-5- The defendant is not

married, has no children, and resides with h is grandfather.

His work history is minimal and he has no assets. In our view, the trial court did not abuse its discretion by denying the defendant a community corrections sentence. State v. Grigsby , 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997). The defendant has been u nable to meet his bu

rden of showing tha

t his special needs can be better addressed in a community corrections program. The failure of the defendant to respond in a

positive fashion to prior attempts at rehabilitation supports the conclusion reached by the trial court. Prior alternative sentences have been unsuccessful.

Accordingly, the judgment is affirmed.