          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

                            MARCH 1997 SESSION
                                                      FILED
                                                         April 30, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,              )   C.C.A. No. 03C01-9604-CC-00162
                                 )   CARTER COUNTY
             Appellee,           )
                                 )   Hon. Arden L. Hill, Judge
VS.                              )
                                 )   (SENTENCING)
MILES V. TOLLEY,                 )   No. 11612 BELOW
                                 )
             Appellant.          )




FOR THE APPELLANT:                   FOR THE APPELLEE:

ROBERT Y. OAKS                       JOHN KNOX WALKUP
Office of the Public Defender        Attorney General and Reporter
Main Courthouse
Elizabethton, TN 37643               WILLIAM DAVID BRIDGERS
                                     Assistant Attorney General
RANDALL E. REAGAN                    450 James Robertson Parkway
602 Gay Street, Suite 905            Nashville, TN 37243-0493
Knoxville, TN 37902

                                     DAVID E. CROCKETT
                                     District Attorney General
                                     Rt. 19, Box 99
                                     Johnson City, TN 37601

                                     KENNETH C. BALDWIN
                                     Assistant District Attorney General
                                     Carter County Courthouse Annex
                                     Elizabethton, TN 37643




OPINION FILED:__________________


AFFIRMED



CORNELIA A. CLARK,
Special Judge
                                      OPINION


       The defendant was charged in the indictments with attempted aggravated

rape and aggravated burglary. He entered a plea of guilty to attempted aggravated

rape. Following his sentencing hearing, he was sentenced to serve eight years in

the Department of Corrections. The trial court denied the petitioner’s request for

suspended sentence.



       The only issue presented for review in this appeal as of right is the trial

court’s denial of the defendant’s petition for probation or alternative sentencing to

community corrections. A brief review of the facts is necessary for a determination

of the issue.



       At around midnight on September 18, 1994, the defendant entered the

residence of the victim, wearing a towel around his face and carrying a butcher

knife. He placed the knife at the victim’s throat and attempted to rape her. The

victim managed to knock the knife from the defendant’s hand, and a scuffle ensued.

As a result of the altercation the victim’s glasses were broken, her nose was cut,

and she suffered bruises on her body, problems with her arms, and massive TMJ.

Additionally, since the incident the victim is continuously afraid. She no longer feels

safe at home unless her doors are locked. Her husband must lock her in the house

when he leaves so that she feels safe.



       The defendant, who was a neighbor of plaintiff, denied that he entered the

home with any intention of raping the victim. He blamed his long-term alcoholism

for the events in question. He contended that he was so drunk on the day in

question that he had no idea what he was doing. He expressed remorse for his

actions and testified that since the occurrence he had participated in two different

treatment programs. His wife testified that since his treatment for alcoholism he is

a very different person. She also testified that she and defendant both had current



                                          2
medical problems and that she needed the defendant to receive probation so that

he could take care of her.



       At the conclusion of the hearing on defendant’s application for probation, the

trial judge denied the request for either probation or community corrections, finding

that the defendant was a dangerous violent person who used a deadly weapon in

the commission of his offense.



       When a defendant complains of his sentence, we must conduct a de novo

review with the presumption of correctness of the actions of the trial court. T.C.A.

§40-35-401(d). The burden of showing that the sentence is improper is upon the

appealing party. Id. Sentencing Commission Comments; State v. Holland, 860

S.W.2d 53, 60 (Tenn. Crim. App. 1993). This presumption, however, “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 defendant entered a plea of guilty to attempt to commit aggravated rape,

a Class B felony. As part of the plea agreement he received the minimum Range I

sentence of eight years. The only issue before the court is whether he should

receive some form of alternative sentencing.



       The defendant is not entitled to a community corrections sentence. Persons

convicted of violent felony offenses or felony offenses involving possession of a

weapon are not eligible for such alternative sentencing. See T.C.A. §40-36-

106(a)(3)-(4). Attempt to commit aggravated rape is such an offense. W hile it is

true that persons who commit such crimes but have special treatable needs

treatable as a result of chronic alcohol abuse, drug abuse, or mental health

problems, may be admitted to the community corrections program, Tenn. Code


                                         3
Ann. §40-36-106(c), there is no proof in the record that defendant’s needs could

best be met by this alternative. Defendant acknowledges that he has had a

significant drinking problem for well over thirty years. Until he was arrested for this

offense, he never took steps to correct that problem. His voluntary intoxication at

the time of the offense is not a defense. This issue is without merit.



       Under T.C.A. §40-35-303(a), a defendant is eligible to be considered for

probation after being sentenced to a term of eight years for a Class B felony

offense. However, he is not considered to be a favorable candidate for such a

sentencing option. T.C.A. §40-35-102(5)-(6). It is the defendant who has the

burden of establishing suitability for probation. See T.C.A. §40-35-303(b). Eligibility

may be defeated if any of the following factors outweigh the defendant’s

rehabilitative capabilities: (1) confinement is necessary to protect society by

restraining a defendant who has a long history of criminal conduct; (2) confinement

is necessary to avoid depreciating the seriousness of the offense or it is particularly

suited to provide an effective deterrence to others likely to commit similar offenses;

or (3) measures less restrictive than confinement have frequently been applied

unsuccessfully to the defendant. See T.C.A. §40-35-103(1)(A) - (C); State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991).          The trial court relied upon the second

sentencing consideration, finding that confinement was necessary to deter others

from committing similar crimes, and because the crime involved violence and the

threat of violence.



       The offense in this case is a violent felony perpetrated by the use of a deadly

weapon. It resulted in physical and emotional injury to the victim. The defendant

has not overcome the presumption of correctness of the sentence imposed upon

him.



       The judgment of the trial court is affirmed.


                                          4
                                __________________________________
                                CORNELIA A. CLARK
                                SPECIAL JUDGE
CONCUR:


__________________________________
JOHN H. PEAY
JUDGE


__________________________________
PAUL G. SUMMERS
JUDGE




                               5
   IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE




STATE OF TENNESSEE,                 )      C.C.A. No. 03C01-9604-CC-00162
                                    )      CARTER COUNTY
              Appellee,             )
                                    )      Hon. Arden L. Hill, Judge
VS.                                 )
                                    )      (SENTENCING)
MILES V. TOLLEY,                    )      No. 11612 BELOW
                                    )
              Appellant.            )




                                    JUDGMENT



        Came the appellant, Miles V. Tolley, by counsel and also came the attorney
general on behalf of the state, and this case was heard on the record on appeal
from the Criminal Court of Carter County; and upon consideration thereof, this court
is of the opinion that there is no reversible error in the judgment of the trial court.


       Our opinion is hereby incorporated in this judgment as if set out verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of Carter
County for execution of the judgment of that court and for collection of costs
accrued below.

       It appears that the appellant is indigent. Costs of this appeal will be paid by
the State of Tennessee.


                                           PER CURIAM

                                           John H. Peay, Judge
                                           Paul G. Summers, Judge
                                           Cornelia A. Clark, Special Judge
