         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON             FILED
                       MAY 1999 SESSION
                                                    July 12, 1999

                                                Cecil Crowson, Jr.
                                               Appellate Court Clerk
STATE OF TENNESSEE,            )
                               )    NO. 02C01-9808-CC-00249
      Appellee,                )
                               )    BENTON COUNTY
VS.                            )
                               )    HON. JULIAN P. GUINN,
DOUGLAS McARTHUR RAINS,        )    JUDGE
                               )
      Appellant.               )    (DUI, HMVO Violation)



FOR THE APPELLANT:                  FOR THE APPELLEE:

TERRY J. LEONARD                    PAUL G. SUMMERS
9 North Court Square                Attorney General and Reporter
P.O. Box 957
Camden, TN 38320                    J. ROSS DYER
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    G. ROBERT RADFORD
                                    District Attorney General

                                    BETH BOSWELL
                                    Assistant District Attorney General
                                    P.O. Box 686
                                    Huntingdon, TN 38344-0686




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       The defendant, Douglas McArthur Rains, pled guilty in Benton County to

violating the Habitual Motor Vehicle Offender law ("HMVO"), a Class E felony, and

to driving under the influence ("DUI"), third offense.1 The trial court sentenced

defendant as a Range I standard offender to one year incarceration on the HMVO

offense, and to eleven months, twenty-nine days on the DUI offense. The court

ordered the sentences to run consecutively. In this appeal as of right, defendant

contends that the trial court erred in denying him an alternative sentence and in

ordering consecutive service of his sentences. Upon our review of the record, we

AFFIRM the judgment below.



                           ALTERNATIVE SENTENCING



       The presentence report reflects that defendant has three prior DUI

convictions as well as a conviction for public intoxication. He received a partially

suspended sentence on each of the DUI offenses. At the sentencing hearing,

defendant admitted to being an alcoholic, but testified that he had been alcohol free

for seven months.

       In sentencing defendant, the trial court rejected alternative sentencing

because of the circumstances of the offense, defendant's prior criminal record, and

his refusal to accept responsibility for his actions. The court additionally noted that

probation had been tried and failed, and that there was "no reason to believe that

probation in this instance would serve the ends of justice." The judge further stated

that he considered confinement necessary to protect society and to avoid

depreciating the seriousness of the offenses.




              1
                Defendant was indicted for DUI, fourth offense. At the sentencing hearing,
defendant's attorney referred to defendant's conviction as a fourth offense DUI. However,
the judgment form indicates that defendant was convicted of DUI, third offense.

                                            2
       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).

       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

State v. Ashby, 823 S.W.2d at 169. 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); State

v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

       Defendant has not carried his burden of demonstrating that the trial court's

denial of alternative sentencing in this case is improper. Indeed, we agree with the

trial court that incarceration is appropriate in this case. Defendant has a significant

history of criminal conduct; repeated episodes of driving under the influence are

very serious offenses; and less restrictive measures have been repeatedly, but

unsuccessfully, applied. Moreover, we are convinced that the specter of significant

jail time is particularly appropriate in this state's attempts to keep repeat drunk

drivers off the road. This issue is, therefore, without merit.




                                          3
                           CONSECUTIVE SENTENCES



       With respect to ordering defendant's sentences to run consecutively, the trial

court stated that it was necessary "to jail [defendant] as long as possible to keep

[him] out of the vehicle before [he] kill[ed] somebody's child or [himself]."

       A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that:

       [t]he defendant is an offender whose record of criminal activity is
       extensive; [or]

       [t]he defendant is a dangerous offender whose behavior indicates little
       or no regard for human life, and no hesitation about committing a
       crime in which the risk to human life is high.

Tenn. Code Ann. § 40-35-115(b)(2), (4); see also State v. Black, 924 S.W.2d 912,

917 (Tenn. Crim. App. 1995). Furthermore, the court is required to determine

whether the consecutive sentences (1) are reasonably related to the severity of the

offenses committed; (2) serve to protect the public from further criminal conduct by

the offender; and (3) are congruent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

       Although the trial judge did not state specifically which statutory factor he was

utilizing for imposing consecutive sentences, the tenor of his remarks indicate that

he considered defendant to be a dangerous offender. See T.C.A. § 40-35-

115(b)(4). This Court has found a defendant with DUI convictions to satisfy that

definition. See, e.g., State v. Richard E. Nelson, C.C.A. No. 01C01-9601-CR-

00034, Wilson County (Tenn. Crim. App. filed September 18, 1997, at Nashville),

perm. to app. denied (Tenn. 1998); State v. Anthony Raymond Bell, C.C.A. No.

03C01-9503-CR-00070, Roane County (Tenn. Crim. App. filed March 11, 1996, at

Knoxville), perm. to app. denied (Tenn. 1996).

       Furthermore, defendant is an offender whose record of criminal activity is

"extensive." T.C.A. § 40-35-115(b)(2). He has four prior convictions, beginning in

1991, and all involve intoxication. Given that the instant DUI offense is of a similar

nature, it is "particularly appropriate that we consider this prior criminal activity."

Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996) (holding

                                           4
consecutive sentences appropriate where the defendant had four similar prior

convictions). We further find that the effective sentence of one year, eleven months

and twenty-nine days is reasonably related to the severity of defendant's offenses

and will protect the public from further episodes of defendant's drunk driving. See

Wilkerson, 905 S.W.2d at 939. This issue is, therefore, without merit.



      The judgment below is affirmed.



                                                ____________________________
                                                JOE G. RILEY, JUDGE




CONCUR:


____________________________
JOHN H. PEAY, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE




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