# FILED

February 17, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9710-CC-00446

Appellee, * BLOUNT COUNTY VS. * Hon. D. Kelly Thomas, Jr ., Judge MARTY THATCHER, * (Aggravated Assault)

Appellant. *

For Appellant : For Appellee : Gregory D. Smith John Knox Walkup Contract Appellate Defender Attorney General & Repor ter One Public Square, Ste. 321 Clarksville, TN 37040 Clinton J. Morgan Assistant Attorney Gener al Shawn Graham Criminal Justice Div ision Assistant Public Defender 2d Floor, Cordell Hul l Building 419 High Street 425 Fifth Avenue North Maryville, TN 37804 Nashville, TN 37243-0493 Tammy Harrington Assistant District A

ttorney General 363 Court Street Maryville, TN 37804 OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Marty Thatcher, w as convicted in a bench tr ial of aggravated assault. The trial court imposed a Ran ge I, four-year sentence, suspended after service of sev en months in the county jail , and declared the defendant eligible for work release. The issues on appeal are whether the trial court erred by ordering the defendant to serve a portion of hi s term in custody or er red by denying community cor rections. We find no error and affirm the judgment of the trial court.
On January 1, 1997, the victim, Fred Carson, was outside his residence visiting

with a friend when the d efendant appeared carrying a shotgun. An argument ensued and the defenda nt aimed his shotgun at the top of the victim's foot, placed his hand on the trig ger, and threatened to shoot off the foot of the victim.
At the sentencing hearing , the defendant, thirty-nine y ears old and employed as a concrete finishe r, testified that he had exper ienced a lengthy term of unemployment and acknowledg ed having a serious dr inking problem. He stat ed that he began drinking w hen he was nine years o ld and typically c onsumed a twelve-pack per day. While confirming that he had never rec eived any type of treatment, the defendant conced ed that he had forty-six prior convictions for public intoxication and one prio r conviction for disor derly conduct. The defendant had served thirty day

s in the Blount County ja il for one of the public intox ication convictions.
In imposing the sentence, the trial judge stated as follows:

A four-year sentence is i mposed. ... You will be sentenced to split confinement of sev en months in the3 jail, and the balance on intensive probation. And that will begin with inpatient d rug and alcohol treatment, and then outpatient treatment will be a condition of your probati on after you complete the inpatient program. ... You wi ll be eligible for work release while you' re in jail. ... I thin k without a felony histor

y that he is an appropriat e person for an alternative sentence. ... But I do think that the seriousness of this offense would be greatly depreciat

ed if he did not serve a pretty significant time in the j ail. Guns and alcohol [are] not a good mixture. ... His chances of rehabilitation ... are very poor, if he doesn't get alcohol treatment.
When there is a challenge to the length, range, or manner of servi ce 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 are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.
Our review req uires an analysis of (1) the evidence receive

d at the trial and sentencing hearing; (2) the presentence report;(3) the principles of sentencing and the arguments of counsel rela tive to sentencing alt

ernatives; (4) the nat ure and characteristics of the offense; ( 5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own beha lf; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord,4 social history and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35-102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sente nce imposed is eight years

or less. Tenn. Code Ann. § 40- 35-303(a), (b). The ultimate burden of establishing suitab ility for probation, how ever, is still upon the defendant. Tenn. Code Ann. § 40-35-303(b).

Alternative sentencing

issues must be determined by the facts and circumstances of the indiv idual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). In the words of the la te Judge Joe B. Jones, "[e]ach c ase must be bottomed upon its own facts." State v. Taylor , 744 S.W.2d 919, 92 2 (Tenn. Crim. App 1987).

In our view, the defendant's prior record sugg ests that a term of incarceration is entir

ely appropriate. While his prior criminal behavior appear s to be the product of alcoholism, the defend ant has never sought treatment for his condition. That indicates a l ack of amenability to rehabil itation. Moreover, the mixing of alcohol and w eapons is a particularly dangerous combination. Grear , 568 S.W.2d at 286. The trial court carefully crafted a sentence that will provide the defendant the opportunity to receive treatment f or his alcoholism while allowing him to continue his employment.

The defendant also complains that the trial court did not appropriately5 consider a community corr ections sentence. The purpose of the C ommunity Corrections Act of 1985 w as to provide an alternati ve means of punishment for "selected, nonviolent felony offenders in front-end community based alternatives to incarceration." Tenn. Code Ann. § 40-36-103(a). A community corrections sentence provides a desir ed degree of flexibility

that may be beneficial to the defendant yet serve legi timate societal purposes. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). The following offenders are eligible: (1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving c rimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13, parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

Because aggravated ass ault is a crime against

a person, the defendant is not eligible for community corrections; moreo ver, the offense also involved the use of a w eapon, another ground for disq ualification. SeeTenn. Code Ann. § 40-36-106(a)(2), ( 4). Nor would the defendant q ualify for relief under the "special needs" provisi on which provides as follows: [O]ffenders not otherwise eligible under subsection (a),6 and who would be usuall y considered unfit for probati on due to histories of [chronic alcohol problems], but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligi ble for punishment in the community under the provisions of this chapter. Tenn. Code Ann. § 40-36-106(b). W hile the defendant's alcoholism could arguably be considered a "special need," n o proof was presented at the sentencing hearing that the defendant's problem is trea table in the community. The stat ute requires some threshold showing of that fact before the trial court c an consider the propriety of a community corrections s entence.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

______________________________ David H. Wel les, Judge

________________________________ Thomas T. W oodall, Judge