### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs S eptem

ber 17, 200 3 STATE OF TENNESSEE v. MORGAN L. RAY Direct Appeal from the Circuit Court for Bedford County

No. 15109 Lee Russell, Judge

No. M2002-02910-CCA-R3-CD - F iled December 8, 2003.

The defendant

pled guilty

to driving

while und

er the sta tus of a ha bitual moto

r offender; two c ounts of driving under the influenc e, seven

th offen se; two co

unts of dr iving on a revoked license , eighth offense; and violation of t he implied co nsent law. The trial court gave the def endant an effective sentence of nine years in the Te nnessee Department of Correction. The def endant contends on appeal that the trial court erred by not granting him alternative sentencing. Plain error requiresus to vacate the judg ment of c onviction for driving on a

revoked license (count th ree) because of

double jeopard y pr ohibitions. The othe

r judgme nts from th

e trial c ourt are

affirmed in all re spects. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part; Vacated in Part
J OHN E VERE TT W IL LI AMS , J., deliver ed the opinion of the court, in which J OSEPH M. T IPTON and D AVID G. H AYES , JJ., joined.
Donna Leigh Har

grove, District

Public Defender, and Andrew Jackson Dearing , II

I, As sistant Pub lic De fe nd er , f or th e a pp el la nt , M or ga n L. Ra y. Paul G. Summers , Attorney Gene ral and Reporter; Jennifer L. B ledsoe, Assistant Attorney Genera l; William Michael McCown, DistrictAttorney Gene ral; and Michael D. Randles, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION The defendant, Mor gan L . Ra y, pled g uilty to driving while under the status of a habitual motor offender (Class E felony); two count s of driving under the influe

nce, sev enth off

ense (Cla ss E felony); two counts of dr iving on a revoked

license , eighth

offense (Class A misdemeanor); and violation of the impl

ied conse nt law (Cla ss A misdemeanor). The sentences were to be determined by the trial court. The

defendant was sentenced to three years on e ach of the DUI c onvictions and three years on the

habitual motor offender violation. The trial court ordered tha t th e sentences be-2-

served con secutively, for a

n effective sentence of nine y ears in the Tennessee Department of Correction. This appeal timely followed. The defendant contends on appeal that the trial court er red by not granting him alternative sentencing . The judgment of conviction for driving on a r evoke d license (count three) is vacated. The othe r judgments of the trial court are aff irmed. Facts The defendant pled

guilty to allcharges with the sentence to be de termined at a sentencing hearing . At the g

uilty plea hea ring, th e State su mmarized t

he fact s as follow s: GEN. RANDLES: Yes, sir. The factua l basis is that - - there are

actually two factual bases here. The first occurred on March 23rd , the other set of events on May 24, both of this year. The ev ents occurred, occurring on Ma rch 23rd were that on that day the defendant was involved in an accident where he ran into a conve nient store out in the co un tr y. I believe it’s on Warner Cree k Road. I think it’s called the ThreeCorner’s Marketor t he Three-way Market or something like that. But any way, ra n into the building. The Tennessee Highway patrol was summoned out there and - - THE CO URT: Ran th e car in to th e buil ding? GEN. RANDL

ES: Yes, si

r. Actu ally, I

think crashed in - - went inside the building . I me an, it was n’t just hit the building. He w ent throu gh the f ront gla ss. The highway

patrol showed up out there. The defendant was injured and had to be transported to the hospital. But in the meantime, Trooper Inman talked with the defenda nt. The defendant admitted he was the driver. The d efendan t admitted he ha d been drinking, but he refused to give a blood sample to determine his blood alcohol and he was not - - because of his injuries, he wa s not in shape to do a field sobri ety test, but t he tro oper co uld o bvio usly tel l he ha d been drink ing. The other situation occurred o n M ay 24th, involved Trooper Blackwell. I believe that was a stop and, again, the defendant re fused to give a blood

alcohol, but the trooper could tell that the defendant had been drinking on that occasion.
In both of those situations, he did nothave a driver’s license. To be honest, the state has made a mistake here, but defendant, by ple ading guilty has jeopa rdy now attac hed. H e can’t do anythi ng abou t it s o I guess h e has gai ned on e thin g. You’ll notice in one situation, the March 23rd situation, having driving -- having been charged with driving after being declared a

habitual motor offender, he should have been charged in the May 24th, but then also that status was in effect, but-3-

he was not -- to be honest, I didn’t notice the discrepancy

there until the grand jury had met this last time until after that, so there is no way to cure it. But he has been previous ly

declared a habitual motor offender a nd that status has beenin effect ever since that order was put

down. I don’t recall the

exact, but it’s been a while. I want to say it goes ba

ck to maybe ‘98 a

nd that’s been in place for a while. And he also has numerous DUI c onvictions and those justify it being the 7th of f ense and numer

ous drive r’s lice nse convictions. T

hose justif

y to be an 8th offense. Analysis The defenda

nt contends on appe al that the tr ia l court erred in deny ing him alternative sente ncing. This Court’ s review of th e sen tence imp osed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). T his p resumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles andall relevant facts and circumstances. Statev. Pettus , 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our revi ew is de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appe aling pa rty to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our re view, we are required, pursuant to Tennessee CodeAnno tated section 40-35-210(b), to consider the following factor s in s enten cing: (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentencereport; (3) [t]he principles of sentencing and arg uments as to sentencing alterna tives; (4) [t]he nature and characteristics of the criminal conduct

involved; (5) [e]vidence and information offered by the parties on the e

nhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to mak e in th e defen dant’ s own b ehalf a bout sente ncing. Under the Cr imin al Sen tenci ng Reform Act of 19 89, trial j udges a re enco uraged to use alternatives to incarceration. An especially mitiga

ted or standard

offende r convic ted of a Cl ass C, D, or E felony is pre sumed to be afavorable candidate for alterna tive sentencing options in the absenceof evidence to the con trary . Tenn. Code Ann. § 40-35-102(6). With certain statutory exception s, probation must be automatically consider ed by the trial court if the sentence

imposed is eight ye ars or less. Tenn. Code Ann. § 40-35-303(a), (b).
In determin

ing if incarceration is appropriate, a trial cour t should consider

the need to protect society by restraining

a defe n dant having a lon g histor y of criminal conduct, the need

to avoid depreciating the seriousness of the offense, whether co nfineme

nt is parti cularly

appropr iate to effec tively

deter others lik ely to commit sim

ilar off enses, a nd whethe

r less restrictive measures have-4-

often or rece

ntly been uns uccessf

ully applied t o the defendant. Tenn. Code Ann. § 40-35-103(1)(A) -(C); see also State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
A court may also c onsider the mitigating and enhancing factors set

forth in Tennessee Code Annotatedsections 40-35-113 and -114 as they are relevant

to the section 40-35-10 3 conside rations. Tenn. Code Ann. § 40-35-2 10(b)(5 ); State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Ad di ti on al ly, a court should consider the defendant’s potential or lack of potential for rehabilitation when determining if an alternative sentenc e would

be appropriate. Tenn. Code Ann. § 40-35-103(5); Boston , 938 S.W.2d at 438. There is no mathematical equationto be utilized in determining sentencing alternatives. Not only should the sentence fit the offense, but it should fit the offender as we ll. Tenn. Cod e A nn. § 40-35-103(2); State v. Batey , 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000) . Inde ed, individualized punishment is the essence of alternative sentencing. Stat e v. D owdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary , sentencing must be determined on a case- by- case basis, tailoring each sentence to that particular defendant based

upon the facts of that case and the circumstances of that defendant. State v. Mo ss , 727 S.W.2d 229, 235 (Tenn. 1986). The defendant contends that he is entitled to the presumption that he is a favora ble cand idate for alternative sentencing since he wa s convicted of nothing higher than ClassE felonies. However, altho ugh not argued by

the State in its brief, the defendant is not entitled to the presumption. Only especia lly mitigated or standard offenders ar e eligible for

the presumption. Tenn. Code Ann. § 40- 35- 102(6). As correctly

indicated on the judgment forms, the defendant is a multiple offe nder

. Therefore, he is not entitled t o th e presumption that he is a favorable candidate for alternative sente ncing. The trial cou

rt found t

hat the defendant

has an extensive prior criminal record. The presentencereport indicates that the defendant has nine prior convictions for DUI, twelve for driving on a revoked license, seven for public intoxication, two for assault, two for leaving the scene of an accide nt, failure to comply

withjudicial penalty on a DU I conviction, disorderly conduct, resisting arrest, andjoyridi ng. The defendant was declared a habitual motor offender in 1998. The defendant has four prior felony

convictions including felony escape, attempt to commit burglary , and two for th ir d d eg re e b ur gl ar y. Alth ough it appears from the record that the trial court did not rely on the prior c onvictions in determining the defendant’s sentence , the defendant has also ha d nu merous charges dismissed including open container, no proof of insurance, failure to use safety be

lt/child restraint

five time s, violation of the registration law four times, agg ravated assault two times , failure to comply

with judicial penalty on DUI

convicti ons two time s, reckl ess driving, rec kless endanger

ment, unlawful possession of a weapon, driving with a revoked lice nse, DUI, evading

arrest , and coercion of a witness.-5-

In add i tion to the defendant’s extensive criminal record, the trial court denied a lternative sentencing based on the defendant’s lack of potential for r ehabilitation. See Tenn. Code Ann. §§ 40- 35-102(5), -103(5). The record shows that the defendant has had several revocations of probation andparole. Additionally, the def endant has owed the Bedford Count y Clerk $42 26.50 in un

paid fines and costs since 1994. The recor d evinces the defendant’s clear disreg ard for the laws and morals of this state. The defendant was out on bond for the first DUI in this case w hen he committed the second. In fact, it was the very next day . In r

egard to the DUI

where th e defendant cra shed into a building , he stated that his v ehicle h ad mecha nical pr oblems and that the i ncident did not occur because of his being intoxicated. The defendant obviously has not accepted full responsibility . The defendant has not demonstrated his potential for rehabilitation or that he is a suitable candidate for proba tion . The r ecord s uppor ts th e tria l cour t’s de nial o f alte rnati ve sen tenci ng. Alth ough not addressed

by either par

ty, one of the

defendant’s convictions for driving on a revoked license and the habitual motor offender offense were

based upon the same evidence. They b oth came ab out a s a result of the events on March 23, 2002. Therefor e, these offenses are the “same” under double jeopardy analysis. See State v. Green, 947 S.W.2d 186, 190 (Tenn. Crim. App. 1997) (citing Duchac v. State, 505 S.W.2d 237, 239 (Tenn. 1973)). Plain err or requi res us to v acate the judgment of conviction for driving on a revoked license (count three) because of double jeopardy prohibitions. We note the defendant’s effective sentence remains unchanged. Conclusion Based on the foregoing and the record as a whole, the judgment of conviction for driving on a revoked license (count three) is vaca ted. The other judgments from the trial court ar

e affir med in all respects.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE