        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 19, 2010

            STATE OF TENNESSEE v. DEWAYNE LEWIS STARR

                   Appeal from the Circuit Court for Bedford County
                           No. 16842    Lee Russell, Judge




                  No. M2009-02260-CCA-R3-CD - Filed July 21, 2010


The Defendant, Dewayne Lewis Starr, appeals the sentencing decision of the Bedford County
Circuit Court. Following his guilty plea to being a motor vehicle habitual offender, a Class
E felony, the trial court imposed a six-year sentence as a Range III, persistent offender to be
served in the Department of Correction. On appeal, the Defendant asserts that his sentence
is excessive and that the trial court erred in denying alternative sentencing. After a review
of the record, we affirm the judgment of the trial court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Richard Dugger, Shelbyville, Tennessee, for the appellant, Dewayne Lewis Starr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

        On August 11, 2009, the Defendant pleaded guilty to and was convicted of being a
motor vehicle habitual offender. See Tenn. Code Ann. § 55-10-616. The underlying facts,
as recited at the guilty plea hearing, are as follows:
       [B]ack in November of 2000, Judge, the late Judge Rollins of Coffee County
       Circuit Court declared the [D]efendant to be a habitual motor offender and
       entered an order to that effect, and that order has remained in effect since that
       day. Moving forward to February 7, 2009, Officer Christopher Vest was on
       patrol here in Shelbyville and he observed a vehicle with a taillight that was
       out traveling on Elm Street. The vehicle turned in to Tate Street and stopped
       for a moment.

              And then Officer Vest again saw the vehicle a short time later on Lane
       Parkway, and so he conducted a stop in front of Dairy Queen. So, all this is
       in very close proximity of both time and place. The [D]efendant was the
       driver of the vehicle. The officer asked if the [D]efendant had a driver’s
       license. He said it had been suspended due to unpaid child support. Of course,
       a check of it revealed that he had, he actually had a revoked license and had
       been declared a habitual motor offender and so was arrested for that.

       Subsequent to the acceptance of the Defendant’s guilty plea, the trial court conducted
a sentencing hearing. The State introduced the presentence report into evidence. The report
showed that, at the time of sentencing, the Defendant was thirty-two years old and had three
children, with another “on the way.” In the report, the Defendant relayed that he was in
arrears for child support, owing over $10,000 in support for his two daughters. The
Defendant also stated that he had received his GED from Motlow State Community College.
The presentence officer noted that the Defendant “ha[d] a sporadic employment history with
long bouts of unemployment,” some due to his incarceration. The presentence report also
detailed the Defendant’s lengthy criminal record.

       No testimony was presented by either party. The Defendant’s counsel argued that his
sentence should be mitigated because he was only driving to work when he was arrested and
he accepted responsibility for his actions. The Defendant simply threw himself on “the
mercy of the [c]ourt.”

       After hearing the evidence presented, the trial court imposed a sentence of six years
to be served at 45%. This sentence was to be served consecutively to a sentence for a prior
violation of the Habitual Offenders Act. The trial court also determined that the Defendant
was not an appropriate candidate for alternative sentencing and ordered that his sentence be
served in the Department of Correction. The Defendant filed the instant timely appeal.




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                                           Analysis

       On appeal, the Defendant challenges the sentence as imposed by the trial court. First,
he contends that his six-year sentence is excessive. He also asserts that he was improperly
denied an alternative sentence.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or 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). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

A. Length
       The Defendant was convicted of being a motor vehicle habitual offender, which is a
Class E felony. See Tenn. Code Ann. § 55-10-616. As a Range III, persistent offender the
Defendant’s sentencing range was four to six years. See Tenn. Code Ann. § 40-35-112(c)(5).
The trial court imposed an enhanced sentence of six years.

     The Defendant’s conduct occurred subsequent to the enactment of the 2005
amendments to the Sentencing Act, which became effective June 7, 2005. The amended

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statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further
explained by our supreme court in Carter,

       the trial court is free to select any sentence within the applicable range so long
       as the length of the sentence is “consistent with the purposes and principles of
       [the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
       and principles include “the imposition of a sentence justly deserved in relation
       to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
       punishment sufficient “to prevent crime and promote respect for the law,”
       [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
       “potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
       40-35-103(5).

Id. (footnote omitted).

       The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.

      To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

       In setting the Defendant’s sentence at six years, the trial court applied the following
enhancement factors: (1) The Defendant had a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range; (8) The
Defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community; and (13) At the time the felony was committed, the
Defendant was released on community corrections. See Tenn. Code Ann. § 40-35-114(1),

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(8), (13). In mitigation, the trial court found that the Defendant’s conduct neither caused nor
threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1). The trial court gave
this factor little weight.

        The sentence imposed by the trial court is appropriate. In addition to the felonies used
to establish the Defendant’s range, the Defendant had a lengthy criminal history including
one felony conviction for facilitation of aggravated robbery and misdemeanor convictions
for reckless endangerment, assault, harassment, vandalism, criminal trespassing, theft, and
numerous driving offenses. The trial court also noted that the Defendant’s probation was
revoked on his sentence for facilitation of aggravated robbery and that the Defendant was on
community corrections for being a motor vehicle habitual offender at the time he committed
the present offense. The trial court properly enhanced the Defendant’s sentence based upon
his criminal history and because he was on community corrections. We conclude that the
trial court did not err or abuse its discretion in enhancing the Defendant’s sentence to six
years.

B. Alternative Sentencing
        Effective June 7, 2005, our legislature amended Tennessee Code Annotated section
40-35-102(6) by deleting the statutory presumption that a defendant who is convicted of a
Class C, D, or E felony, as a mitigated or standard offender, is a favorable candidate for
alternative sentencing. Our sentencing law now provides that a defendant who does not
possess a criminal history showing a clear disregard for society’s laws and morals, who has
not failed past rehabilitation efforts, and who “is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary. A court shall
consider, but is not bound by, this advisory sentencing guideline.” Tenn. Code Ann. § 40-35-
102(5), (6) (emphasis added). No longer is any defendant entitled to a presumption that he
or she is a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347.

        The following considerations provide guidance regarding what constitutes “evidence
to the contrary”:

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

              (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




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

Tenn. Code Ann. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. Additionally, the
principles of sentencing reflect that the sentence should be no greater than that deserved for
the offense committed and should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the defendant’s potential for rehabilitation or treatment in
determining the appropriate sentence. Tenn. Code Ann. § 40-35-103(5).

       Here, the Defendant was sentenced as a persistent offender. Because the Defendant
was not a mitigated or standard offender, he is not considered a favorable candidate for
alternative sentencing. In light of his persistent offender status, it is the Defendant who bears
the burden of establishing suitability for an alternative sentencing option.

        Based upon our de novo review, we conclude that the record supports a sentence of
total incarceration. The trial court denied an alternative sentence based upon the Defendant’s
lengthy criminal history and his demonstrated failure at past rehabilitative efforts. Again, the
Defendant’s criminal record was extensive and occurred over a long period of time,
beginning when he reached the age of majority. He had four prior convictions for violation
of the Habitual Offenders Act. The Defendant was on community corrections for being an
habitual offender at the time he committed the instant offense. The trial court properly
considered the sentencing principles and all relevant facts and circumstances. Furthermore,
the Defendant has not carried his burden of establishing his suitability for an alternative
sentence and has not established that total suspension of his sentence serves the ends of
justice or the best interest of the public. We cannot conclude that the trial court erred or
abused its discretion by denying an alternative sentence.

                                          Conclusion

       Based on the foregoing reasoning and authorities, we conclude that the sentence as
imposed is not excessive that the trial court did not err in denying the Defendant an
alternative sentence. The judgment of the Bedford County Circuit Court is affirmed.




                                                     _________________________________
                                                     DAVID H. WELLES, JUDGE




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