         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 17, 2003

                   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 - Filed December 8, 2003.


The defendant pled guilty to driving while under the status of a habitual motor offender; two counts
of driving under the influence, seventh offense; two counts of driving on a revoked license, eighth
offense; and violation of the implied consent law. The trial court gave the defendant an effective
sentence of nine years in the Tennessee Department of Correction. The defendant contends on
appeal that the trial court erred by not granting him alternative sentencing. Plain error requires us
to vacate the judgment of conviction for driving on a revoked license (count three) because of double
jeopardy prohibitions. The other judgments from the trial court are affirmed in all respects.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part;
                                     Vacated in Part

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Donna Leigh Hargrove, District Public Defender, and Andrew Jackson Dearing, III, Assistant Public
Defender, for the appellant, Morgan L. Ray.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

        The defendant, Morgan L. Ray, pled guilty to driving while under the status of a habitual
motor offender (Class E felony); two counts of driving under the influence, seventh offense (Class
E felony); two counts of driving on a revoked license, eighth offense (Class A misdemeanor); and
violation of the implied consent law (Class A misdemeanor). The sentences were to be determined
by the trial court. The defendant was sentenced to three years on each of the DUI convictions and
three years on the habitual motor offender violation. The trial court ordered that the sentences be
served consecutively, for an effective sentence of nine years in the Tennessee Department of
Correction. This appeal timely followed. The defendant contends on appeal that the trial court erred
by not granting him alternative sentencing. The judgment of conviction for driving on a revoked
license (count three) is vacated. The other judgments of the trial court are affirmed.

                                               Facts

       The defendant pled guilty to all charges with the sentence to be determined at a sentencing
hearing. At the guilty plea hearing, the State summarized the facts as follows:

               GEN. RANDLES: Yes, sir. The factual 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 events occurred, occurring on March 23rd were that on that day the
       defendant was involved in an accident where he ran into a convenient store out in the
       country. I believe it’s on Warner Creek Road. I think it’s called the Three Corner’s
       Market or the Three-way Market or something like that. But anyway, ran into the
       building. The Tennessee Highway patrol was summoned out there and - -

               THE COURT: Ran the car into the building?

              GEN. RANDLES: Yes, sir. Actually, I think crashed in - - went inside the
       building. I mean, it wasn’t just hit the building. He went through the front glass.

                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
       defendant. The defendant admitted he was the driver. The defendant admitted he
       had been drinking, but he refused to give a blood sample to determine his blood
       alcohol and he was not - - because of his injuries, he was not in shape to do a field
       sobriety test, but the trooper could obviously tell he had been drinking.

               The other situation occurred on May 24th, involved Trooper Blackwell. I
       believe that was a stop and, again, the defendant refused 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 not have a driver’s license. To be honest,
       the state has made a mistake here, but defendant, by pleading guilty has jeopardy now
       attached. He can’t do anything about it so I guess he has gained one thing.

              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


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        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
        previously declared a habitual motor offender and that status has been in 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 back to maybe ‘98 and that’s been in place for a while.

               And he also has numerous DUI convictions and those justify it being the 7th
        offense and numerous driver’s license convictions. Those justify to be an 8th
        offense.

                                               Analysis

        The defendant contends on appeal that the trial court erred in denying him alternative
sentencing. 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. 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 review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210(b), to consider the following
factors in sentencing:

        (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
        presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
        alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
        [e]vidence and information offered by the parties on the enhancement and mitigating
        factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
        to make in the defendant’s own behalf about sentencing.

        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). With certain statutory
exceptions, probation must be automatically considered by the trial court if the sentence imposed is
eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

        In determining if incarceration is appropriate, a trial court should 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


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often or recently been unsuccessfully applied to 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 consider the mitigating and enhancing factors set forth in Tennessee Code
Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations.
Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
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);
Boston, 938 S.W.2d at 438.

        There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 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. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

         The defendant contends that he is entitled to the presumption that he is a favorable candidate
for alternative sentencing since he was convicted of nothing higher than Class E felonies. However,
although not argued by the State in its brief, the defendant is not entitled to the presumption. Only
especially mitigated or standard offenders are eligible for the presumption. Tenn. Code Ann. § 40-
35-102(6). As correctly indicated on the judgment forms, the defendant is a multiple offender.
Therefore, he is not entitled to the presumption that he is a favorable candidate for alternative
sentencing.

         The trial court found that the defendant has an extensive prior criminal record. The
presentence report 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
accident, failure to comply with judicial penalty on a DUI conviction, disorderly conduct, resisting
arrest, and joyriding. 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
third degree burglary.

        Although it appears from the record that the trial court did not rely on the prior convictions
in determining the defendant’s sentence, the defendant has also had numerous charges dismissed
including open container, no proof of insurance, failure to use safety belt/child restraint five times,
violation of the registration law four times, aggravated assault two times, failure to comply with
judicial penalty on DUI convictions two times, reckless driving, reckless endangerment, unlawful
possession of a weapon, driving with a revoked license, DUI, evading arrest, and coercion of a
witness.




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        In addition to the defendant’s extensive criminal record, the trial court denied alternative
sentencing based on the defendant’s lack of potential for rehabilitation. See Tenn. Code Ann. §§ 40-
35-102(5), -103(5). The record shows that the defendant has had several revocations of probation
and parole. Additionally, the defendant has owed the Bedford County Clerk $4226.50 in unpaid
fines and costs since 1994. The record evinces the defendant’s clear disregard for the laws and
morals of this state. The defendant was out on bond for the first DUI in this case when he committed
the second. In fact, it was the very next day. In regard to the DUI where the defendant crashed into
a building, he stated that his vehicle had mechanical problems and that the incident 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
probation. The record supports the trial court’s denial of alternative sentencing.

        Although not addressed by either party, 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
both came about as a result of the events on March 23, 2002. Therefore, 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 error requires us to vacate
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 vacated. The other judgments from the trial court are affirmed in
all respects.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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