# FILED
July 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9808-CC-00249 Appellee, ) ) BENTON COUNTY VS. ) ) HON. JULIAN P. GUINN, DOUGLAS McA

RTHUR RAI NS, ) JUDGE ) Appellant. ) (DUI, HMVO Violation )

FOR THE APPELLANT : TERRY J. LEONARD 9 North Court Square P.O. Box 957 Camden, TN 38320 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter J. ROSS DYER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General BETH BOSWELL Assistant

DistrictAttorney

General P.O. Box 686 Huntingdon, TN 38344-0686

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 Defendant was indicted for D

UI, fourth offense. At the sent encing heari ng, defendant's attor ney refe rred t o defe ndant 's con victi on as a fourt h offe nse DU I. However, the judgment form indicates that defendant was convicted of DUI, third offe nse. 2 OPINION

The de fendant, Douglas McArthur R ains, pled guilty i n Benton County to violatingthe Habitual Motor Vehicle Offender law ("HMVO"), a Class E felony, and to drivingunder the influence ("DUI"), thir d offense. 1 The trial court sentenced defendant as a Range I standard offender to one year inca rceration on the HMVO offense, and to eleven months, twent y-nine days on t he DUI offense. The court ordered the sentences to run consecuti vely. In t his appeal as of right, defendant contends that the trial court err ed in denying him an alter native sente nce an d in ordering c onsecut ive service of his sentences . Upon our review of the record, we AFFIRM the judgment below.

ALTERNATIVE SENTENCING

T he presentence report reflects that defendant has three prior DU I convictions

as well as a convi ction for public intoxi cation. He received a par tially suspen d ed sentence on ea ch of the DUI of fenses. At the sentencing hea ring, defendant admitted to being an alcoholi c, but testified that he had been alcohol free for seven months. In sentencing defendant, the trial court rejecte d 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 addi tionally 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 st ated that he considered confinement necessar y to pro tect society and to avoid depreciating the seriousness of the offen ses.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 sho wing in the rec

ord thatthe 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 offenderconv icted of a Class C, D or E felony is presumed to be a favorable
can didat e for alternative sentencin g options in the absence of ev idence to the contrary. Tenn. Code Ann. § 40-35-102(6). In determiningif incarceration is appropriate, a trial cour t may consider the need to protect society by restraining a defendant hav ing a long history of cri minal conduct, t he need to avoid depreciating the seriousness of the offense, whether confinementis particularly appropriate to effect i vely deter others likely to commit similar offenses, and whether less restr ictive 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. Ad dit ionally , a court should consider the defendant’s potential or lack of potential for re habilitation when determi ning if an alternat ive sentence would be appropri ate. Tenn. Code Ann. § 40-35-103(5); State v. Boston , 938 S.W.2d 435, 43 8 (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 w ith the trial court that incarceration is app ropriate in this case. Defendant has a significant historyof criminal conduct; repeated episodes of driving under the inf luence are very serious offens es; and l ess restrictive meas ures have been repeatedly , but
unsucce ssfully, 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 i ssue is, therefore, with out merit.4 CONSECUTIVE SENTENC ES

With respect to ordering defendant's sentenc es to run consecutively, the trial court stated that it was necess ary "to jail [defendant] as l ong as possible to keep [him] out of the vehicle before [he] kill[ed] somebody's chi ld or [himself]." Acourt may o rder sentenc es to run c onsecut ively if the court fin ds by a preponderance of the evidence that: [t]he def endant is an offender whose recor d of criminal acti vity

i s extensive; [or] [t]h e defendan t is a dangerous offender whose behavior indicates little or n o rega rd for human li fe, and no he sitation abou t 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 r

elated to the severity

of the offenses committed; (2) serve to protect the public from further criminal conduct by the offender; and (3) are congruent w ith general principl es of sentencing. State v. Wilkerson , 905 S.W.2d 933, 93 9 (Tenn. 1995). Although the trial judge did not state specifically which statutory factor he was utilizingfor imposing consecutive sentences, the tenor of his remarks indica te that he considered defendant t o be a dangerous offender. See T.C.A. § 40-35- 115(b)(4). T his Court has found a defendant with DUI conv ictions to satisfy that defi nition. 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). Further more, 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 i ntoxication. Given that the instant DUI offen se is of a

similar nature, it is "particularly appropriat

e that we co nsider this prior cri mi nal activi ty." Powers v. State , 942 S.W.2d 551, 558 (Tenn. C rim. Ap p. 1996) (holding5

consec utive sentences appropriate whe re the defendant had four similar pr io r convictions). We further find that the effective sentence of one year, el even months and twenty-nine days is reasonablyrelated to theseverity of defendant's offenses and will protect the publ ic from further episodes of defendant's drunk driving. See Wilkerson , 905 S.W.2d at 939. This issue is, therefore, w ithout merit.
The judgment below is affirmed.

______ _____________

________

_ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JOHN H. PEAY

, JUDGE

____________________________ THOMAS T. WOOD

ALL, JUDGE