         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs June 15, 2004

              STATE OF TENNESSEE v. MICHAEL RAY McGILL

                      Appeal from the Criminal Court for Knox County
                        No. 75425     Richard Baumgartner, Judge



                     No. E2003-02727-CCA-R3-CD - Filed July 15, 2004


The defendant, Michael Ray McGill, pled guilty in the Knox County Criminal Court to violating a
motor vehicle habitual offender order, a Class E felony. Pursuant to a plea agreement, the defendant
received a four-year sentence with the manner of service to be determined by the trial court. After
a sentencing hearing, the trial court denied the defendant’s request for an alternative sentence and
ordered that he serve his sentence in the Department of Correction. The defendant appeals, claiming
that the trial court erred by sentencing him to confinement. We affirm the judgment of the trial
court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Mark E. Stephens, District Public Defender, and Randall J. Kilby, Assistant Public Defender, for the
appellant, Michael Ray McGill.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Randall E. Nichols, District Attorney General; Marsha Mitchell, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

        This case results from the defendant’s arrest on January 25, 2002, for violating a motor
vehicle habitual offender order. At the guilty plea hearing, the state gave the following account of
the crime:

               [O]fficers with the Knoxville Police Department spotted Mr. McGill
               driving an automobile in this county on Friday, January the 25th,
               2002. He was driving a Chevy Lumina that did not have proper
               registration. Registration had expired on his tags. On further
               investigation they discovered that [his license] had been revoked and
               . . . that actually he was declared a habitual motor vehicle offender.

At the hearing, the defendant told the trial court that he had cleaned up his life, that he was
employed, and that he paid child support.

         According to the presentence report, the then forty-one-year-old defendant dropped out of
high school during the eleventh grade. He described his physical health as good and his mental
health as excellent. He said that he began drinking alcohol when he was seventeen, that he used
cocaine from 1990 through 1992, and that he used marijuana from 1979 through 1999. At the time
of the report, the defendant had a wife and two children. He attended Alcoholics Anonymous classes
weekly. The report reflects that the defendant was employed at Perma Chink Systems. The report
also reflects that the defendant has been convicted of at least twenty-six prior offenses, including
eight convictions for driving without a license, five convictions for DUI, three convictions for
marijuana possession, three convictions for public intoxication, two convictions for violating a
habitual traffic offender order, resisting arrest, evading arrest, theft under $500, and reckless
endangerment.

        In denying the defendant’s request for an alternative sentence at the sentencing hearing, the
trial court stated the following:

                      I believe it’s time for Mr. McGill to go on and serve his
               sentence. He was in the penitentiary. He got paroled. He--that
               parole was revoked for operating a motor vehicle and evading arrest
               back then. He had--he continued to abuse substances even while he
               was in custody. He’s now picked up another HMVO conviction.
               He’s just not a suitable candidate for release in the community.

        The defendant contends that the trial court erred by denying his request for alternative
sentencing because he had changed his lifestyle at the time of the offense. He asserts that like the
defendant in State v. Michael D. Martin, No. E2002-03005-CCA-R3-CD, Sullivan County (Tenn.
Crim. App. Jan. 28, 2004), alternative sentencing was appropriate in his case because he had proven
that he was open to rehabilitation. The state claims that the trial court properly denied alternative
sentencing. We hold that the trial court properly required confinement.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness 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 burden is on the appealing party to show that the sentence is improper. T.C.A. §
40-35-401(d), Sentencing Commission Comments. This means that if the trial court followed the
statutory sentencing procedure, made findings of fact that are adequately supported in the record, and


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gave due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

         When determining if incarceration is appropriate, a trial court should consider whether (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. §
40-35-103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set
forth in T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). In addition, a trial court should consider a defendant’s potential or
lack of potential for rehabilitation when determining if an alternative sentence would be appropriate.
T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438. In conducting a de novo review, we must
consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence
report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any
statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or
treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168.

        In Michael D. Martin, this court held that the defendant should be given an alternative
sentence that allowed him to maintain his employment and support his family because the record in
the case readily showed that the defendant had changed his life and was socially reliable after
becoming married. Slip op. at 2. The record showed that he rode with a neighbor to work each
morning and was picked up by his wife to avoid driving illegally. His employer testified that during
the defendant’s four years of employment, he had never been late to work or missed work without
calling first. The record established that the defendant was active in his church and was deeply
involved in his wife’s children’s activities in the community. In fact, even the incident giving rise
to the offense, his misguided decision to drive, occurred because he was the only person available
to drive a float on which the children were riding. The record in Michael D. Martin showed that the
defendant had completely changed his life, that he was a productive member of society, and that the
offense was an aberration inconsistent with his changed behavior. Id.

        In the present case, unlike Michael D. Martin, the record does not establish that the defendant
has changed his lifestyle, that he is open to rehabilitation, or that he is socially reliable. The
defendant presented no witnesses at the sentencing hearing to show that he had changed his lifestyle.
The only statements regarding the defendant’s current conduct came from the defendant himself in
brief statements he made to the trial court at the guilty plea hearing. The defendant told the court
that he had been recovering from his former lifestyle for three years, that he had a job, and that he
paid child support. The presentence report also reflects that the defendant attended AA meetings.
However, a memorandum to the trial court from Randall Hampson of the Enhanced Supervision
Program stated that the defendant had “never successfully completed a period of supervised release.”


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It said that in his interview, the defendant “minimized his criminal activity and his failure to comply
with the orders of the Court.” Relative to his not appearing at his first scheduled sentencing hearing
in this case, the memorandum noted that the defendant said it was because he had “other things” on
his mind. It also noted a discrepancy in the defendant’s explanations during his interview and in his
presentence report regarding his prescription drug use and suggested that he still might be abusing
drugs. The memorandum stated that the defendant was a poor candidate for supervised release,
asserting that he took little responsibility for his criminal behavior, made minimal effort to address
his substance abuse issues in the past, and continued to disregard the law. We believe the record in
this case does not “readily show” that the defendant has changed his lifestyle or that he is now
socially reliable. We conclude that the trial court was justified in requiring the defendant to serve
his sentence in confinement.

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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