### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Jun e 15, 200 4

STA TE OF TEN NES SEE v. MIC HAE L R AY McG ILL

Appeal f romthe Cr im inal Cou rt for K nox Coun ty No. 75425 Richard Baumgar tner, Judge

No. E2003-02727-CC A-R3- CD - F iled Jul y 15, 2004

T h e d ef en d an t , M i ch ae l R ayM cG i l l
, p l ed gu i l t y i n t h e Kn o x C o u n t y C ri m i n al C o u rt t o v i o l at i n g a motor vehicle ha

bitual offende r orde r, a Class E fe lony . Pursuant to a plea a g ree ment, the def endant

rec eived a four- y ear sentenc e with the m anner of service to be determined by the trial court. After a sente ncing hearing, the trial court de nied the defe ndant’s reque st f or an a lternative se ntence and order ed that he se rve his sente nce in the D epartment of Correc tion. The defe ndant appe als, claiming that the trial court erre d by sentenc ing him to conf

inement. W e af

fi rm t he judg ment of the trial

c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and J OHN E VE R E TT W I L L I AMS , J J ., joined.

Mark E. Stephens, District Public Defe nder, a nd Randall J . Kilby , Assistant Publ ic Def ender , for the

app e lla nt, Mic ha e l Ray

Mc Gi ll.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B re nt C . Ch e rry , A ssi sta nt A tto rn e y Ge ne ra l; Ra nd a ll E . N ic ho ls, Di stric t A tto rn e y Ge ne ra l; M ars ha

Mit c he ll, A s s i s t an t

D i s t ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

This case results from the de fenda nt’s arr est on J anuary 25, 2002, for violating a motor vehicle ha

bitual offende r orde r. At the g uiltyplea he aring , the state g ave the following acc ount of the c ri me :
[O]f

fi c e rs wi th the Kn oxvil le Pol ic e De pa rtme nt s po tte d Mr . M c Gi ll driving an automobil e in this county on Friday , J anuary

the 25th, 2002. He wa s d riving a Chevy Lumina that did not have prope r reg istration. Reg istration had expired o n h is tag s. On furthe r-2- investigation they discovere d that [hi s license] had bee n revoke d and

. . . that actua lly he was decla red a habitual motor v eh i cl e offender

.
At the hea

ring , the def

endant told t h e t ri al court that he had c leane d up his life, that he wa s
e mpl oy e d, a ndthat he pa id c hil d s up po rt

.
Acc ording to the prese ntence report, the then fo rt y -one- y ear -old defe ndant droppe d out of high sc hool during the eleve nth gra d e. He described his phy sical hea lth as g ood and his mental health as e x cellent. He said t h at h e b egan drinking a lcohol when he was seve nteen, that he used

c oc a ine fr om 1 99 0 th ro ug h 1 99 2, a ndthat he us e d ma ri jua na fr om 19 79 thr ou g h 19 99

. At the tim e of the re port, the def

endant ha d a wife and two childre n. He attended Alcoholics A nony mous classes

wee kly

. The report r efle cts that the defe ndant was employ ed at Perma Chink S y stems. The re port also ref lect s t h at the def

endant ha s been c onvicted of at least twenty -six prior off enses, including eig ht convictions for driving without a licens e, fi v e convic tions for DUI , three convictions for

m ar i j u an a p o s s es s i o n , t h re e c o n v i ct i o n s fo r p u b l i c i n t o x i ca t i o n , t w o c o n v i ct i o n s fo r v i o l at i n g a ha bitua l tr a ff

ic of fe nd e r o rd e r, re sis tin g arr e st, e va din g ar re st, the ft un de r $ 50 0, a ndre c kle ss endang erme nt.

I n deny ing the defe ndant’s re quest for a n alternative sentenc e at the se ntencing hearing, the t ri al co u rt s t at ed t h e f

o l l o wi n g:

I be lie ve it’ s ti me fo r M r. Mc Gi ll t o g o o n and se rv e his sentenc e. He was in the penitentiary . He g ot paroled. H e-- that pa ro le wa s r e vo ke d f

or op e ratin g a

mot or ve hic le a nde va din g arr e st back the n. He ha d--he continued to abuse substances e ven while he

was in c ustody

. He’ s now picked up another HM VO co nviction. H e ’ s j u s tn o ta

s u i t ab l e c a n d i d a t e f

o r r e l e a s e i n t h e c o m m u n i t y.

The de fenda nt contends t h at t he trial c ourt err ed by deny ing his re quest for a lternative sentenc ing because he had chang ed his lifesty le at the time of the offe nse. He asserts that like the defe ndant in State v. Michae l D. Martin, No. E2002- 03005-CCA-R3-CD, Sulli van County (Tenn. Crim. App. J an. 28, 2004), alternative sentenc ing was appropriate in his case be cause he had pr oven that he wa s open to reha

bilitation. The state claims that the trial court proper ly denied a lternative sentenc ing. We hold that the tria l court prope rly require d confine ment.

Whe n a de fe nd a nt app e a ls the ma nn e r of se rv ic e of a se nte nc e imp os e d by the tr ia l c ou rt , th is court c onducts a de novo revie w of the r ecor d with a pre sumption t hat the trial c ourt’s de te rm inatio ns are c or

re c t. T .C. A. § 4 0- 35 -4 01 (d ). Ho weve r, the pr e su mpt ion of c or re c tne ss i s “conditioned upon the a ffirma tive showing in the rec ord that the tr ial court c onsidered the sentenc ing principles and a ll releva nt fac ts and circ umstances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). The bur den is on the appe aling party to show that the s en t en ce i s i m p roper . T.C.A. § 40-35-401( d), Sentenc ing Commission Com ments. This means that if the trial c ourt followed the statutory sentenc ing pr ocedur e, made finding s of fact that ar e ade quately supported in the re cord, a nd-3-

g ave due consideration and proper weig ht to the fac tors and princ iples that are rele vant to sentenc ing und er the 1989 Sentencing Act, we may not disturb the sentence even if a diffe rent re sult were pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

. When determining if incar cer ation is appropria te, a tria l court should consider w hether (1) confine ment is neede d to p rot ect soc iety by restra ining a

defe ndant who has a

long history

of criminal conduct, (2) confine ment is ne eded to a void de prec iating the seriousness of the offe nse or
c on fi ne ment is p art ic ula

rl y su ite d to pr ov ide a n e ff

e c tiv e de te rr e nc e to p e op le lik e ly to c omm it simil ar of fense s, or (3) less restric tive measure s than confine ment have fre quently or re cently

been applied unsucc essfully

to the defe n d ant. Ashby , 823 S.W .2d at 169 (c iting T.C.A. § 40-35-103( 1)(A) -(C)) . The trial c ourt may also con s i d er t h e mitigating and enhancing fac tors set forth in T .C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210( b)(5) ; State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). I n addition, a trial court should consider a de fenda nt’s potential or lack of potential for rehabilitation when determining if an a lternative se ntence would be appr opriate. T. C.A . § 40 -3 5- 10 3( 5) ; B os ton , 9 38 S.W. 2da t 43 8. I n c on du c tin g a de no vo review , w e mus t consider ( 1) the e vidence , if any , rec eived at the trial and sente n ci ng hearing, ( 2) the pre sentenc e report, (3) the principles of sentenc ing and arg uments as to sentenc ing a lternatives, ( 4) the na ture a nd char acte ristics of the criminal conduct, (5) a ny mitigating or statutory enhanc ement factors, (6) any statement that the de fenda nt made on his own beha lf, and (7) t h e p o t en t i al for r ehabilitation or trea tment. T.C.A. §§ 40-35-102, -103, - 210; see Ashby , 823 S.W .2d at 168.

I n Michae l D. Martin, this court h el d t h at t he def endant should be g iven an a lternative

se nte nc e that allo we d him to mai nta in h is e mpl oy me nt a ndsu pp ort hi s f a mil y be c a us e the re c or d in the ca se re adily

sh o we d t h at the def

endant ha d chang ed his life and w as socially reliable afte r bec o mi n g ma

rr ie d

. Sl ip o p

. a t 2

. T h e r e c o r d s h o w e d th a t h e r o d e w ith a n e ig h b o r to work e ach morning and wa s picked up by his wife to avoid driving illega lly . His employ er te stified that during the def endant’ s four y ear s of employ ment, he had never been late to work or missed wor k without

c a lli ng fi rs t. T he re cord e sta bli sh e d th a t th e de fe nd a nt w a s a c tiv e in h is c hu rc h a ndwa s d e e ply inv olv e d in his wi fe ’s c hil dr e n’ s a c tiv iti e s in the c omm un ity . I n f a c t, e ve n th e inc ide nt g ivi ng ri se to the of fe ns e , h is m isg uid e d d e c isi on to dr ive
, oc c ur re d b e c a us e he wa s th e on ly pe rs on a va ila

ble to drive a f

loat on which the c hildren were riding. The rec ord in Michae l D. Martin showed tha t the defe ndant had c ompletely chang ed his life, that he w as a productive member of society , and that the offe nse wa s an abe rration inconsistent with hi s chang ed beha vior. I d.

I n the pre sent ca se, unlike Michae l D. Martin, the re cord doe s not establish that the defe ndant has cha ng ed his lifesty le, that he is open to re habilitation, or that he is soci al l y reliable . The defe ndant pre sented no witnesse s at the sentenc ing he aring to show that he had c hang ed his lifesty le. Th e on ly state me nts re g ard ing the de fe nd a nt’ s c ur re nt c on du c t c a me fr om the de fe nd a nt h ims e lf in brief sta tements he mad e to the trial c ourt at the g uiltyplea he aring . The de fenda nt told the court that he had be en re covering f rom his former lifesty le for three y ear s, that he had a job, and that he pa id c hil d s up po rt . T he pr e se nte nc e re po rt a lso re fl e c ts tha t the de fe nd a nt at te nd e d A A m e e tin g s. Howeve r, a me morandum to the trial court from Randall Ha mpson of the Enhanc ed Sup er v ision Prog ram stated that the defe ndant had “ never succe ssfully

completed a

period of supe rvised re lease .”-4-

I t sai d tha t in his int e rv ie w, the de fe nd a nt “m ini mize d his crimi na l ac tiv ity a nd his failu re to c omp ly with the order s of the Court.” Relative to his not a ppearing at his first scheduled se ntencing hearing in this case , the memora ndum noted that the def endant sa id it was because he ha d “other things” on his min d. I t a lso no te d a

dis c re pa nc y

in the de fe nd a nt’ s expla na tio ns du ri ng his int e rv ie w an d in hi s prese ntence report reg arding his prescription drug use and sug g ested that he still might be a busing drug s. The memora ndum st at ed that the defenda nt was a poor candidate for supe rvised re lease
, a sse rt ing that he too k lit tle re sp on sib ili ty fo r his c ri min a l be ha vio r, ma de min ima l e ff ort to a dd re ss his su bs ta nc e abu se iss ue s in the pa st, a nd c on tin ue d to disr e g ard the la w. We b e lie ve the re c or d in this case doe s not “rea dily sho w” t h at the def

endant ha s chang ed his lifesty le or that he is now socially reliable . We conclude that the trial court was justified in requiring the def endant to ser ve his sentence in confineme nt.

B a se d o n th e fo re g oin g a ndthe re c or d a s a wh ole , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

____________________________________ J OSEPH M. TI PTON, J UDGE