         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs February 1, 2005

                      STATE OF TENNESSEE v. GARY HOPPER

                   Direct Appeal from the Criminal Court for Shelby County
                     Nos. 03-03770, 03-00924    W. Otis Higgs, Jr., Judge



                     No. W2004-00978-CCA-R3-CD - Filed March 31, 2005


The defendant, Gary Hopper, pled guilty in two separate cases to vehicular assault as the result of
intoxication, a Class D felony; reckless aggravated assault, a Class D felony; and leaving the scene
of an accident, a Class A misdemeanor, for which he received an effective sentence of seven years,
eleven months and twenty-nine days in the county workhouse as a Range II, multiple offender. The
sole issue he raises on appeal is whether the trial court should have sentenced him to community
corrections instead of incarceration. Following our review, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.

Robert J. Ross, II, Memphis, Tennessee, for the appellant, Gary Hopper.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

                                                 FACTS

        The defendant’s convictions stemmed from two separate driving incidents that occurred on
November 1 and November 6, 2002, in Shelby County. At the sentencing hearing, the prosecutor
reminded the trial court of the facts that formed the basis for the guilty pleas, stating that in the first
incident, the defendant was driving recklessly on Highway 385 at 10:30 a.m. when he swerved and
struck a truck and two pedestrians. The prosecutor said one of the victims suffered a fractured
pelvis, a ruptured bladder, a skull fracture that resulted in permanent brain damage, and injuries to
his left leg which required amputation of that leg from the knee down, while the other victim
suffered fractures to both legs and ankles. He stated that the defendant’s blood tested positive for
marijuana, Diazepam, Lorazepam, and Methadone. In addition, the arresting officers found three
bottles of Methadone in the defendant’s vehicle. As for the second case, the prosecutor stated that
on November 6, 2002, the defendant left the scene of an accident after striking another vehicle but
that no one was injured in that incident.

         Dr. Allen Pelletier, the defendant’s physician, testified that the defendant was diagnosed in
1999 with Hepatitis C, “a treatable viral illness that causes damage to the liver.” He said the disease,
which was progressive, had begun to materially affect the functioning of the defendant’s liver and
had resulted in the defendant’s experiencing periods of acute confusion and disorientation. He
testified he had consulted with Dr. Karen Riley,1 a University of Tennessee professor at the Shelby
County Medical Center, who was prepared to begin treating the defendant with daily doses of
Riboflavin and weekly injections of Interferon, which, according to Dr. Pelletier, causes “significant”
side effects. Because of those side effects, a patient on such treatment requires careful monitoring.
He testified the treatment could last up to one year and that it had to continue uninterrupted once it
was begun. Although there was “no guarantee” that the defendant’s liver disease could be reversed
or its course improved with the treatment, the treatment offered the defendant’s “only hope for a
cure.” Moreover, “[a] delay in treatment . . . would prove potentially very dangerous” to the
defendant. Dr. Pelletier said he was “not at all certain” the defendant would get the proper medical
attention while incarcerated or, should the defendant be given a split sentence allowing for treatment
outside of the jail, that the side effects of the drug could be properly monitored during the time the
defendant spent in a jail environment. In sum, he was of the opinion that a seven-plus-year sentence
in incarceration would “be tantamount to a death sentence” for the defendant.

        Dr. Pelletier testified he first saw the defendant in late November 2002, approximately three
weeks after the defendant’s automobile accident. He believed the disorientation the defendant
exhibited at that time was caused by his Hepatitis C, but he could not rule out the possibility that it
was related to several concussions the defendant had received in incidents unrelated to his car
accident. Dr. Pelletier testified that his understanding was that all of the drugs found in the
defendant’s system after the November 1, 2002, accident, with the exception of the marijuana, had
been prescribed. He acknowledged on cross-examination, however, that Diazepam is a muscle
relaxer which “certainly . . . can affect one’s ability to operate a motor vehicle.” He further
acknowledged he had not visited any jails within the past ten years, had no knowledge of the medical
care available to an inmate, and did not know if it was possible for the defendant to receive the
required treatment for Hepatitis C while incarcerated.

       At the conclusion of the hearing, the trial court denied the defendant’s request for alternative
sentencing, finding that the seriousness of the offenses and the defendant’s lengthy criminal history
warranted a sentence of confinement and that the defendant’s medical needs could be met by
placement in an appropriate facility. Thereafter, the defendant filed a timely notice of appeal,
challenging the trial court’s sentencing determinations.



       1
           This individual’s first name is spelled in the transcript as both “Karen” and “Carolyn.”

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                                             ANALYSIS

       The defendant contends that the trial court should have sentenced him under the Community
Corrections Act where he can be assured of getting the proper treatment for his Hepatitis C instead
of gambling on the chance that he will be able to obtain proper treatment while incarcerated. The
State argues, inter alia, that the defendant’s extensive criminal history and the circumstances
surrounding the offenses justify a sentence of incarceration. We agree with the State.

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2003). This presumption is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions
reached by the trial court in sentencing the accused or to the determinations made by the trial court
which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.
App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871
S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9 (Tenn. 2000). However, this court is required to give great weight to the trial court’s
determination of controverted facts as the trial court’s determination of these facts is predicated upon
the witnesses’ demeanor and appearance when testifying.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused’s potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2003); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001).

        The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. Therefore, the burden is on the defendant to show that the trial court
erred in sentencing him to incarceration rather than community corrections.

        Initially, we note that as a Range II offender, the defendant is not presumed to be a favorable
candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (2003). A sentence under the
Community Corrections Act is an alternative sentence. State v. Grigsby, 957 S.W.2d 541, 544
(Tenn. Crim. App. 1997) (citing State v. Taylor, 744 S.W.2d 919, 920 (Tenn. Crim. App. 1987)).
The Community Corrections Act permits trial courts to sentence certain nonviolent felony offenders,
who are either not eligible for probation, or not good candidates for probation, to community-based
alternatives to incarceration. Id. at 548; see Tenn. Code Ann. §§ 40-36-103, -104 (2003). The
legislature’s purpose in enacting the Community Corrections Act was to “provide ‘a degree of


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flexibility’ consistent with societal aims not previously available under the more traditional methods
of correction.” State v. Kendrick, 10 S.W.3d 650, 655 (Tenn. Crim. App. 1999).

        Offenders who meet all of the following minimal requirements are eligible for community
corrections:

       (A) Persons who, without this option, would be incarcerated in a correctional
       institution;

       (B) Persons who are convicted of property-related, or drug/alcohol-related felony
       offenses or other felony offenses not involving crimes against the person as provided
       in title 39, chapter 13, parts 1-5;

       (C) Persons who are convicted of nonviolent felony offenses;

       (D) Persons who are convicted of felony offenses in which the use or possession of
       a weapon was not involved;

       (E) Persons who do not demonstrate a present or past pattern of behavior indicating
       violence; [and]

       (F) Persons who do not demonstrate a pattern of committing violent offenses[.]

Tenn. Code Ann. § 40-36-106(a)(1) (2003). In addition, “[p]ersons who are sentenced to
incarceration or are on escape at the time of consideration will not be eligible for punishment in the
community.” Tenn. Code Ann. § 40-36-106(a)(2).

        The State correctly observes that the defendant does not meet the minimum requirements for
sentencing under the community corrections program, having been convicted of vehicular assault
and reckless aggravated assault, both of which constitute assaultive offenses against the person in
title 39, chapter 13, part 1 of the Tennessee Code. Furthermore, his presentence report, which
reveals an extensive criminal history including prior convictions for aggravated assault, armed
robbery, and a weapons offense, shows the defendant to be an individual with both a pattern of
behavior indicating violence and a pattern of committing violent offenses.

        Notwithstanding the fact that the sentence imposed upon an offender should be the “least
severe measure necessary to achieve the purposes for which the sentence is imposed,” Tenn. Code
Ann. § 40-35-103(4), a trial court is authorized to impose a sentence involving confinement upon
a finding of any one of the following factors:

             (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;



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               (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence to
       others likely to commit similar offenses; or

              (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Tenn. Code. Ann. § 40-35-103(1). Before imposing the sentence, the trial court noted the serious
harm the defendant had caused to the victims by his actions in driving under the influence of
multiple intoxicants; the defendant’s extensive criminal history, including his commission of several
violent felonies; the fact that the defendant had received a total sentence of almost 100 years in the
penitentiary for the those prior convictions and yet continued to offend; and finally, the danger the
defendant posed to the community as a whole. The record fully supports these findings. The
essential facts surrounding the offenses, as stated by the prosecutor, were not disputed by the
defendant, with defense counsel, in fact, offering to stipulate that the facts of the case were
“horrible.” Furthermore, the defendant’s criminal history, which covers seven full pages of his
presentence report, reflects numerous prior convictions, including at least fourteen felony convictions
ranging from armed robbery, aggravated assault, petit and grand larceny, breaking and entering, the
sale, manufacture or possession of drugs, and credit card fraud. Therefore, ample evidence exists
in this case to support a sentence of incarceration.

        The defendant asserts that his physician’s concerns about whether he will be able to receive
the proper treatment for his illness while incarcerated should outweigh other factors in favor of
incarceration. However, the physician acknowledged he had no personal knowledge of the level of
medical care available to an inmate and could not, therefore, state with certainty that the defendant
would not receive proper care while incarcerated. Furthermore, the trial court did not ignore the
defendant’s medical issues in imposing sentence, stating that it was aware of the fact that University
of Tennessee physicians were under contract to provide medical care to inmates at the Shelby County
Correctional Center and that the Tennessee Department of Correction also had physicians on contract
to provide medical care for its inmates. The trial court advised defense counsel to speak with
officials at both facilities and inform the court as to which placement would be best for his client.
Thus, the trial court appropriately took the defendant’s medical needs into consideration in imposing
the sentence of incarceration. As the State points out, this court has previously affirmed the denial
of alternative sentencing in spite of evidence that a defendant suffers from a serious medical
condition or illness. See State v. Vicki D. Walden, No. E2003-02710-CCA-R3-CD, 2004 WL
2319761, at *2 (Tenn. Crim. App. Oct. 15, 2004) (affirming denial of alternative sentence to
defendant who testified she is required to be on oxygen constantly and undergo breathing treatments
every six hours); State v. Darrell Kenneth McConnell, No. 03C01-9604-CC-00148, 1998 WL 75339,
at *2 (Tenn. Crim. App. Feb. 24, 1998), perm. to appeal denied (Tenn. Nov. 16, 1998 & Dec. 7
1998) (affirming denial of alternative sentencing to defendant suffering from heart condition). We
conclude, therefore, that the trial court did not err in denying the defendant’s request for a
community corrections sentence and in ordering him to serve his sentence in incarceration.



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                                 CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                              ___________________________________
                                              ALAN E. GLENN, JUDGE




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