          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON                 FILED
                              MAY SESSION, 1999               June 25, 1999

                                                          Cecil Crowson, Jr.
                                                         Appellate Court Clerk
STATE OF TENNESSEE,                 )   C.C.A. NO. 02C01-9810-CC-00324
                                    )
             Appellee,              )   HARDIN COUNTY
                                    )
V.                                  )   HON. C. CREED McGINLEY, JUDGE
                                    )
LAWR ENC E EU GEN E WH ITE,         )   (HABITUAL MOTOR VEHICLE
                                    )   OFFENDER STATUTE; POSSESSION
             Appe llant.            )   OF DR UG PAR APHER NALIA)



FOR THE APPELLANT:                       FOR THE APPELLEE:

GUY T. WILKINSON                         PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter

RICHARD W. DeBERRY                       J. ROSS DYER
Assistant Public Defender                Assistant Attorney General
117 Fo rrest Ave nue N orth              2nd Floor, Cordell Hull Building
Camden, TN 38320                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         G. ROBERT RADFORD
                                         District Attorn ey Ge neral

                                         JOHN W. OVERTON, JR.
                                         Assistant District Attorney General
                                         P.O. Box 484
                                         Savannah, TN 38372-0484




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       The Defen dant, La wrence Eugen e W hite, appe als as o f right fro m his

sentencing in the Ha rdin County Circuit Court. Defendant pled guilty pursuant to a

plea agreem ent with the State to o ne (1) co unt of violation of the habitual motor

vehicle offende r statute (C ount O ne) and one (1) c ount of possession of drug

paraphern alia (Coun t Two). In re turn, Defe ndant re ceived a one (1) ye ar, six (6)

month sentence for Count One and a sentence of eleven (11) months, twenty-nine

(29) days for Count Two. In addition, Defendant agree d to pa y a fine in the amount

of $750.00. The trial court was to determine the manner of service of the sentence.

Defe ndan t’s sole issue on appeal is the trial court’s denial of alternative sentencing

in the form of Com munity C orrection s. W e affirm the judgm ent of the tria l court.



       When an accused challenges the length, range or the manner of service of a

sentence, this court h as a du ty to condu ct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-40 1(d). This presum ption is “conditioned upon the affirm ative showing

in the record that the trial cou rt cons idered the se ntenc ing prin ciples and a ll relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any received 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 chara cteristics of the criminal co nduct involved; (e) an y statutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his



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own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code Ann. § § 40-35-1 02, -103 , and -21 0; see State v. S mith, 735 S.W.2d

859, 863 (T enn. Crim. A pp. 1987).



       If our rev iew refle cts tha t the trial court followed the statutory sentencing

procedure, impo sed a lawful s enten ce afte r havin g given due consideration and

proper weight to the factors and principles set out u nder the sentencing law, and

made finding s of fac t adeq uately supported by the record, then we may not mo dify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       At the senten cing hea ring, Defe ndant te stified that he moved to Hardin Coun ty

in 1994 as a disabled American veteran. Defendant described that when he takes

his medications, the “law thinks I’m drunk.” While Defendant denied that he drank

that much, he stated he has to drive to Mem phis every week to go to th e VA hosp ital.

To subs idize h is incom e, he p erform ed m echa nical m ainten ance on veh icles. On

the evening in questio n, Defen dant wa s driving so meon e’s truck w ith faulty brakes

to his ho me to perfor m the repair s.      Because the brakes were not functioning

properly, he was unable to come to a complete stop at the stop sign and he was

pulled over by the police a s a result. In summ ation, Defend ant stated, “I don’t rape,

steal, rob or none of the above. I’m just trying to get along and sooner or later d ie

from what I go t in Vietnam.”



       The State did not present any proof at the sentencing hearing other than

Defendant’s presentence report. The report included the following convictions:

       Habitual Motor Vehicle Offender Violation         1/10/96

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       (Arrest 6/9/95)

       Driving While Intoxicated, Third Offense         1/10/96
       (Arrest 6/9/95)

       Driving While Intoxicated                        6/13/88
       (Arrest 5/29/88)

       Driving on Revoked License                       9/23/87
       (Arrest 2/2/87)

       Driving on Revoked License                       6/20/87
       (Arrest 1/29/87)

       Driving on Revoked License                       12/31/86
       (Arrest 9/30/86)

In the prese ntenc e repo rt, Defe ndan t explain ed in h is state men t that the vehicle he

was driving at the time of the offense was no t his own, a nd neithe r was the pipe with

marijuana. He fur ther ex plaine d that b ecau se he did not have any fa mily mem bers

in the area that could drive, he had to drive back and forth to the VA Hosp ital in

Memphis. Finally, the prese ntence report verified that Defendant did not have a

stable history of employment, although he received assistance from the governm ent.



       The trial court found that Defendant had a prior history of driving infractions,

including a prior felony conviction for violation of the habitual motor vehicle offender

statute. In consideration of the record as a whole, the court held that his prior record

outweighed any presumption for alternative sentencing. Defendant’s prior record,

combined with his admission of contin ued fe lony vio lations of the la w by dr iving his

vehicle weekly to Memphis, were sufficient reason to the trial cou rt to deny any form

of alternative senten cing. See Tenn. C ode Ann . § 40-35-103 (1)(A) and (C ).




       A defen dant w ho “is an especially mitigated or standard offender convicted of

a Class C, D or E felony is presumed to be a favorable candida te for alternative


                                            -4-
sentencing option s in the abse nce o f evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102 (6). Our sentencing law also provides that “convicted felons committing

the most severe offenses, possessing criminal histories evincing a clear disregard

for the laws and morals of society, and evincing failure of past efforts at

rehabilitation, shall    be   given   first   priority   regarding   sentences    involving

incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to

eight (8) years or less who is not an offender for who m inc arcera tion is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presu mptio n. Howe ver, the ac t does no t provide tha t all offende rs who m eet the

criteria are en titled to s uch re lief; rather, it requires that sentencing issues be

determined by the facts and circu mstan ces pre sented in each c ase. See State v.

Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).



       W hile the Com munity Co rrections Ac t allows ce rtain eligible o ffenders to

participate in community-based alternatives to incarceration, a defendant must first

be a suitable ca ndidate for alternative senten cing. Te nn. Co de Ann . § 40-36-103.

W hile Defendant does meet the eligibility requirements of Tennessee Code

Annotated section 40-36-106(a), the Ac t does not pro vide tha t the offe nder is

autom atically entitled to su ch relief. State v. Grand berry, 803 S.W.2d 706, 707

(Tenn. Crim. A pp. 199 0); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.

1987). A defendant’s potential or lack of potential for rehab ilitation w as ap propr iately

considered by the trial court in determining that Defendant should not be granted an

alterna tive sen tence . Tenn . Cod e Ann . § 40-3 5-103 (5). As the trial c ourt no ted, it

was only two (2) years ago that the Defendant committed the exact same felony

offense, violation of the habitual motor vehicle offender sta tute. In addition, where

the defendant’s history indicates a clear disre gard for th e laws an d mora ls of society

                                              -5-
and a failure of pas t efforts to rehab ilitate, the trial cou rt did not abu se its discretion

in denying an alternative sentence. State v. Chrisman, 885 S.W.2d 834, 840 (Tenn.

Crim. App. 1994). As admitted by the Defendant, he has co ntinue d to co mm it this

felony offense o n a regu lar basis. This indicates a poor potential for rehabilitation.



       It is Defendant’s burden to prove his suitability or need for alternative

sentencing, and Defendant has failed to meet this burden. Ashby, 823 S.W.2d at

169. W e affirm the judgm ent of the tria l court.


                                    ____________________________________
                                    THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
JOE G. RILEY, Judge




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