         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 6, 2001

           STATE OF TENNESSEE v. RICHARD E. McCULLOUGH

                 Direct Appeal from the Criminal Court for Bedford County
                            No. 14622     F. Lee Russell, Judge



                     No. M2000-01154-CCA-R3-CD - Filed March 2, 2001


Defendant pled guilty to one count of violating the Habitual Motor Vehicle Offender Act and one
count of driving under the influence, eighth offense, both Class E felonies. He was sentenced to
consecutive terms of one year and six months for each offense. In this appeal, defendant challenges
the trial court's denial of alternative sentencing. Upon our review of the record, we affirm the
judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JERRY SMITH,
JJ., joined.

Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant
District Public Defender, Shelbyville, Tennessee, for the appellant, Richard E. McCullough.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

         Defendant pled guilty to violating the Habitual Motor Vehicle Offender Act and driving
under the influence, eighth offense, and received an effective sentence of three years. In this appeal,
defendant challenges the trial court's denial of alternative sentencing. We affirm the judgment of
the trial court.
                                        I. BACKGROUND

       On October 17, 1999, defendant was stopped for a routine traffic violation and arrested for
driving under the influence (DUI). Thereafter, defendant was charged with violating the Habitual
Motor Vehicle Offender Act and DUI, eighth offense. Defendant pled guilty to both Class E felony
offenses with the Range I sentences to be determined by the trial court.

       At the sentencing hearing, the forty-two-year-old defendant testified that he had been
drinking since he was twelve years old, and that he drank between eighteen and twenty-four beers
a day. Defendant stated that he knows he is an alcoholic and, while incarcerated, has been attending
Alcoholics Anonymous meetings and church. Additionally, defendant stated it was “lucky” that he
had never hurt himself or anyone else.

        The defendant also presented testimony from his girlfriend. She testified that she had known
the defendant for approximately one year, and that she would attempt to aid the defendant both
“spiritually and emotionally” if he were released.

        The state relied upon the pre-sentence report. The report indicates the defendant has an
extensive misdemeanor criminal record including seven prior DUI convictions, six convictions for
public intoxication, eight convictions for driving on a revoked license, two drug convictions, three
assault convictions, two convictions for theft, and six other miscellaneous misdemeanor convictions.
The report also indicates that many of these offenses were committed while the defendant was on
probation.

        The trial court concluded the defendant had an extensive criminal history and a previous
history of unwillingness to comply with conditions of a sentence involving release into the
community. See Tenn. Code Ann. § 40-35-114(1), (8). The trial court found no mitigating factors.
Thus, the trial court sentenced the defendant to one year and six months for each offense.

        Additionally, the trial court found that, due to the defendant’s extensive criminal history and
his willingness to commit a crime where the risk to human life was high, the defendant’s sentences
should be served consecutively. See Tenn. Code Ann. § 40-35-115(b)(2), (4). The trial court further
concluded that alternative sentences were “clearly” not appropriate “in view of [defendant’s]
extensive past record.”


                                  II. STANDARD OF REVIEW

       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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



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        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).

        In determining if incarceration is appropriate, a trial court may 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
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also Ashby, 823 S.W.2d at 169.

       A court may also consider the mitigating and enhancing factors set forth in Tenn. Code Ann.
§§ 40-35-113 and 114 as they are relevant to the § 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.


                                         III. ANALYSIS

       The sole issue raised on appeal by defendant is the trial court’s denial of alternative
sentencing. Defendant argues that he qualifies for community corrections under Tenn. Code Ann.
§ 40-36-106 (a) and (c), and further argues he should have been sentenced to split confinement under
Tenn. Code Ann. § 40-35-306.

        As a standard offender convicted of a Class E felony, defendant is presumed to be a favorable
candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6). However, we conclude the
trial court properly found alternative sentencing was not appropriate in this case.

        Defendant has a lengthy history of criminal behavior. See Tenn. Code Ann. § 40-35-
103(1)(A). Defendant has over thirty prior misdemeanor convictions, including seven DUI
convictions. In addition, measures less restrictive than confinement have frequently been applied
unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1)(C). The pre-sentence report
indicates that over ten of the prior offenses committed by the defendant were committed while the
defendant was on probation for another offense. Defendant’s past criminal history and testimony
at the sentencing hearing indicate that defendant has previously been unsuccessful in treating his
addiction to alcohol.

        The trial court properly found the defendant had an extensive history of criminal behavior
and has failed to benefit from alternative sentencing on many prior occasions. Thus, we are unable
to find error in the denial of alternative sentencing.


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                                        CONCLUSION

      Upon our review of the record, we find that alternative sentencing was properly denied. The
judgment of the trial court is affirmed.



                                                     ___________________________________
                                                     JOE G. RILEY, JUDGE




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