FILED

July 12, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 1999 SESSION

STATE OF TENNESSEE, )

) NO. 02C01-9808-CC-00249

Appellee, )

) BENTON COUNTY

VS. )

) HON. JULIAN P. GUINN,

DOUGLAS McARTHUR RAINS, ) JUDGE

)

Appellant. ) (DUI, HMVO Violation)

FOR THE APPELLANT:

TERRY J. LEONARD

9 North Court Square

P.O. Box 957

Camden, TN 38320

FOR THE APPELLEE:

PAUL G. SUMMERS

Attorney General and Reporter

J. ROSS DYER

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

G. ROBERT RADFORD

District Attorney General

BETH BOSWELL

Assistant District Attorney General

P.O. Box 686

Huntingdon, TN 38344-0686

OPINION FILED: 

AFFIRMED

JOE G. RILEY,

JUDGE
1Defendant was indicted for DUI, fourth offense. At the sentencing hearing,

defendant's attorney referred to defendant's conviction as a fourth offense DUI. However,

the judgment form indicates that defendant was convicted of DUI, third offense.

2

OPINION

The defendant, Douglas McArthur Rains, pled guilty in Benton County to

violating the Habitual Motor Vehicle Offender law ("HMVO"), a Class E felony, and

to driving under the influence ("DUI"), third offense.1 The trial court sentenced

defendant as a Range I standard offender to one year incarceration on the HMVO

offense, and to eleven months, twenty-nine days on the DUI offense. The court

ordered the sentences to run consecutively. In this appeal as of right, defendant

contends that the trial court erred in denying him an alternative sentence and in

ordering consecutive service of his sentences. Upon our review of the record, we

AFFIRM the judgment below. 

ALTERNATIVE SENTENCING

The presentence report reflects that defendant has three prior DUI

convictions as well as a conviction for public intoxication. He received a partially

suspended sentence on each of the DUI offenses. At the sentencing hearing,

defendant admitted to being an alcoholic, but testified that he had been alcohol free

for seven months. 

In sentencing defendant, the trial court rejected alternative sentencing

because of the circumstances of the offense, defendant's prior criminal record, and

his refusal to accept responsibility for his actions. The court additionally noted that

probation had been tried and failed, and that there was "no reason to believe that

probation in this instance would serve the ends of justice." The judge further stated

that he considered confinement necessary to protect society and to avoid

depreciating the seriousness of the offenses.
3

This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 

Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. An especially mitigated or standard

offender convicted of a Class C, D or E felony is presumed to be a favorable

candidate for alternative sentencing options in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6).

In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169. Additionally, a court should consider the

defendant’s potential or lack of potential for rehabilitation when determining if an

alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State

v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

Defendant has not carried his burden of demonstrating that the trial court's

denial of alternative sentencing in this case is improper. Indeed, we agree with the

trial court that incarceration is appropriate in this case. Defendant has a significant

history of criminal conduct; repeated episodes of driving under the influence are

very serious offenses; and less restrictive measures have been repeatedly, but

unsuccessfully, applied. Moreover, we are convinced that the specter of significant

jail time is particularly appropriate in this state's attempts to keep repeat drunk

drivers off the road. This issue is, therefore, without merit.
4

CONSECUTIVE SENTENCES

With respect to ordering defendant's sentences to run consecutively, the trial

court stated that it was necessary "to jail [defendant] as long as possible to keep

[him] out of the vehicle before [he] kill[ed] somebody's child or [himself]."

A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that:

[t]he defendant is an offender whose record of criminal activity is

extensive; [or]

[t]he defendant is a dangerous offender whose behavior indicates little

or no regard for human life, and no hesitation about committing a

crime in which the risk to human life is high.

Tenn. Code Ann. § 40-35-115(b)(2), (4); see also State v. Black, 924 S.W.2d 912,

917 (Tenn. Crim. App. 1995). Furthermore, the court is required to determine

whether the consecutive sentences (1) are reasonably related to the severity of the

offenses committed; (2) serve to protect the public from further criminal conduct by

the offender; and (3) are congruent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

Although the trial judge did not state specifically which statutory factor he was

utilizing for imposing consecutive sentences, the tenor of his remarks indicate that

he considered defendant to be a dangerous offender. See T.C.A. § 40-35-

115(b)(4). This Court has found a defendant with DUI convictions to satisfy that

definition. See, e.g., State v. Richard E. Nelson, C.C.A. No. 01C01-9601-CR00034, Wilson County (Tenn. Crim. App. filed September 18, 1997, at Nashville),

perm. to app. denied (Tenn. 1998); State v. Anthony Raymond Bell, C.C.A. No.

03C01-9503-CR-00070, Roane County (Tenn. Crim. App. filed March 11, 1996, at

Knoxville), perm. to app. denied (Tenn. 1996). 

Furthermore, defendant is an offender whose record of criminal activity is

"extensive." T.C.A. § 40-35-115(b)(2). He has four prior convictions, beginning in

1991, and all involve intoxication. Given that the instant DUI offense is of a similar

nature, it is "particularly appropriate that we consider this prior criminal activity."

Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996) (holding
5

consecutive sentences appropriate where the defendant had four similar prior

convictions). We further find that the effective sentence of one year, eleven months

and twenty-nine days is reasonably related to the severity of defendant's offenses

and will protect the public from further episodes of defendant's drunk driving. See

Wilkerson, 905 S.W.2d at 939. This issue is, therefore, without merit.

The judgment below is affirmed.

____________________________

JOE G. RILEY, JUDGE

CONCUR:

____________________________

JOHN H. PEAY, JUDGE

____________________________

THOMAS T. WOODALL, JUDGE