             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE             FILED
                           NOVEMBER 1998 SESSION
                                                             January 15, 1999

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk

STATE OF TENNESSEE,            )
                               )           C.C.A. No. 03C01-9712-CC-00533
    Appellee,                  )
                               )           Anderson County
v.                             )
                               )           Honorable Lee Asbury, Judge
GEORGE RUDOLF (RUDY) HOLLOWAY, )
                               )           (Sentencing)
    Appellant.                 )




FOR THE APPELLANT:                         FOR THE APPELLEE:

Katherine J. Kroeger                       John Knox Walkup
Assistant Public Defender                  Attorney General & Reporter
101 South Main Street, Suite 450           425 Fifth Avenue, North
Clinton, TN 37716                          Nashville, TN 37243-0493

J. Thomas Marshall, Jr.                    Clinton J. Morgan
District Public Defender                   Assistant Attorney General
101 South Main Street, Suite 450           425 Fifth Avenue, North
Clinton, TN 37716                          Nashville, TN 37243-0493

                                           James N. Ramsey
                                           District Attorney General
                                           127 Anderson County Courthouse
                                           Clinton, TN 37716

                                           Janice G. Hicks
                                           Assistant District Attorney General
                                           127 Anderson County Courthouse
                                           Clinton, TN 37716




OPINION FILED: ______________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                     OPINION


       The appellant, George Rudolf Holloway, referred herein as the defendant, appeals

as of right from the judgment of the Anderson County Criminal Court denying probation.

The defendant was convicted of two counts of sale of cocaine, a Class C felony. The

defendant entered two pleas of guilty and agreed to three-year concurrent sentences and

a $2,000 fine for each count. The defendant requested a probation hearing. At the

conclusion of the sentencing hearing, the trial court denied the defendant an alternative

sentence and ordered the defendant to confinement in the Department of Correction.



       The defendant presents two issues for our review: (1) Whether the trial court failed

to consider relevant sentencing principles and thus the standard of review for denial of

probation is de novo with no presumption of correctness; and (2) the trial court abused its

discretion by failing to sentence the defendant in accordance with the Criminal Sentencing

Reform Act of 1989.



       After a review of the entire record, briefs of the parties, and appropriate law, we

affirm the trial court’s judgment.



                              HISTORICAL BACKGROUND



       The Anderson County Grand Jury indicted the defendant in two counts for the two

separate sales of cocaine less than one-half gram on February 14, 1996. On June 18,

1997, the defendant entered two guilty pleas to the sale of cocaine and requested a

sentencing hearing to determine the merits of an alternative sentence, more specifically

intensive probation. The defendant sought probation at the sentencing hearing.



       Wade Adcock, state probation officer, testified he prepared a presentence report

on the defendant after a personal interview. As part of the defendant’s personal history,

Adcock found a lengthy prior criminal record. Between May, 1988 and July, 1997, the

defendant had eleven convictions for public intoxication. On September 15, 1995, the

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defendant was convicted of the possession of a counterfeit controlled substance and was

placed on probation. The defendant’s other prior convictions include: three convictions

for driving on a revoked license, three convictions for criminal trespass, one conviction for

vandalism, two convictions for driving under the influence of intoxicants, one conviction for

theft less than $500, and one conviction for reckless driving. At the time of the hearing, the

defendant had sentencing for a theft offense and a hearing for revocation of probation

pending in Anderson County. In Knox County, the defendant had pending offenses of

driving under the influence of an intoxicant and driving on a revoked license.



       Adcock testified the defendant’s employment was sporadic and described the

defendant as a self-employed “shade tree mechanic.” Although the defendant reported

he lived with his parents, Adcock could not verify this information with the defendant’s

mother.



       As part of the defendant’s history, Adcock determined the defendant served in the

U.S. Marine Corp from 1971 to 1976, but was dishonorably discharged due to drug

charges and a sexual assault case. The defendant received alcohol/drug counseling in

West Virginia in 1985, but rehabilitation was unsuccessful based on his current record.

The defendant admitted to using cocaine a week prior to the interview with Adcock.

Adcock did not believe the defendant could successfully complete a drug/alcohol treatment

program. When the defendant committed the instant offenses, he was on probation

stemming from a conviction for possession of a counterfeit controlled substance. Adcock

testified Anderson County has an intensive supervised probation program.



       David H. Beams, Oak Ridge Police Chief, testified he has known the defendant

since 1970. Chief Beams was quite familiar with the defendant’s arrest history. Chief

Beams testified the Scarboro community in Oak Ridge, where the defendant frequented

for drug purchases, is recognized as a regional location where crack cocaine can be readily

bought. Chief Beams opposed probation for the defendant.




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       The defendant, age 43 at the time of sentencing, testified he has a long history of

drug and alcohol problems. The defendant attempted an alcohol treatment program in

1985. The defendant testified he would live with his parents if granted probation. As to the

offenses, the defendant testified “I did it out of need, not for money. I wouldn’t sell it; I was

strictly a street user.” Regarding his employment, the defendant desired to open a shop

for mechanic work. The defendant testified he was committed to getting drug treatment

and following the rules of probation. In enlarging on the offenses, the defendant testified

he did not sell the crack cocaine, but was trying to get some cocaine for himself. The

defendant admitted to making this type of sale on a frequent basis to support his drug

habit. The defendant testified he was living with this girlfriend and was confused about

informing his probation officer of his address.



       Based on this testimony and the presentence report, the trial court denied probation

or any alternative relief.



                             SENTENCING CONSIDERATIONS



       The defendant requests this Court to conduct a de novo review without the

presumption of correctness because he contends the trial court failed to consider relevant

sentencing principles and abused its discretion in failing to sentence the defendant in

accord with the Criminal Sentencing Reform Act of 1989.



       Appellate review of sentencing is de novo on the record with a presumption that the

trial court’s determinations are correct. Tenn. Code Ann. §§ 40-35-401(d) and -402(d).

As the Sentencing Commission Comments to these sections note, the burden is now on

the appealing party to show that the sentencing is improper. This means if the trial court

follows the statutory sentencing procedure, makes findings of fact which are adequately

supported in the record, and gives due consideration and proper application of the factors

and principles which 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


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S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, “the presumption of correctness

which accompanies the trial court’s action 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).



       In conducting a de novo review, we must consider: (1) the evidence, if any, received

at the guilty plea 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. Tenn. Code Ann. §§ 40-35-102, -103, and -210; see Ashby, 823 S.W.2d at

168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



       Since the defendant entered pleas of guilty to the sale of cocaine on two occasions,

a Class C felony, he is presumed to be a favorable candidate for alternative sentencing,

in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). When a

defendant is entitled to the statutory presumption of alternative sentencing, then the state

has the burden of overcoming the presumption with evidence to the contrary. Conversely,

the defendant has the burden of establishing suitability for full probation, even if the

defendant is entitled to the statutory presumption of alternative sentencing. Tenn. Code

Ann. § 40-35-303(b)(1994 Supp.); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim.

App.), per. app. denied (Tenn. 1995). Unfortunately, the record on appeal does not include

the guilty plea hearing at which the convicting evidence was presented by stipulation or

testimony. A guilty plea hearing often provides an important occasion for the state to

present its proof and, thus, it is the equivalent of a trial and should be made part of the

record on appeal in order to comply with Tenn. Code Ann. § 40-35-210.



       In reviewing the evidence in the record of the sentencing hearing and the trial court’s

ruling denying alternative relief, we find the trial court did comply with the overall

sentencing principles required by the Criminal Sentencing Reform Act of 1989. Tenn.



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Code Ann. § 40-35-210. Therefore, we conduct our review on the basis the trial court’s

ruling was presumptively correct.



       We agree with the defendant that to receive probation, he must demonstrate that

probation will serve the ends of justice and the best interests of both the public and the

defendant. Also, as part of his argument, the defendant complains the trial court failed to

consider the principle regarding rehabilitation and treatment required by Tenn. Code Ann.

§ 40-35-103(5). Due to his age, the defendant is not eligible for “boot camp” and thus his

alcohol/drug problems are appropriate for treatment in an intensive probation program.



       In denying full probation and any alternative relief, the trial court ruled:


              In the opinion of the Court, this defendant does not qualify for
              any of the relief programs available, such as intensive or
              regular probation, or community alternatives. I would cite the
              following reasons for making that ruling. Starting a good many
              years ago, he’s been dishonorably discharged by the U.S.
              Marine Corp, which does not speak well for him. He has a
              lengthy previous record, which extends over a long period of
              time. He has public drunkenness offenses that were committed
              during the pendency of this matter. The Court is certainly not
              satisfied that he has shown here this morning any adequate
              living or employment arrangement.

              It’s pretty obvious that previous suspensions of sentences and
              probations have not been successful, as he was, in fact, on a
              suspended sentence status when this particular event
              occurred; and further, that the officer who prepared a rather
              thorough report, strongly recommends against probation. For
              all those reasons, probation and/or any other type of
              alternative sentencing will be denied.



       Based on this record, we fully concur with the trial court’s denial of probation or any

alternative relief. Since 1988, the defendant has developed a long history of convictions

(twenty-three in all) ranging from public intoxication, theft, driving offenses, vandalism, and

drug sales to support his drug addiction. Other than alcohol counseling in 1985, the

defendant has done nothing to remedy his abuse of alcohol and drugs. The presentence

report reveals the defendant was placed on probation for his convictions of DUI, driving on

a revoked license, and theft. At the time of the sentencing hearing, the defendant had four

pending proceedings in two counties. One of the pending cases was a revocation of


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probation during which probationary status the defendant sold cocaine on February 14,

1996.



        Although the vast majority of the defendant’s convictions are misdemeanors, we

believe the trial court was correct in continuously confining the defendant. Sentences

involving confinement should be based on the following considerations:


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

                                           ***

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

Tenn. Code Ann. § 40-35-103(1).



        We find the defendant’s lengthy criminal conduct and unsuccessful periods of

probation fully justify confinement.



        The trial court’s judgment is affirmed.




                                           ________________________________________
                                           L. T. LAFFERTY, SENIOR JUDGE




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CONCUR:




___________________________________
DAVID H. WELLES, JUDGE




___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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