            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            DECEMBER 1997 SESSION
                                                         February 27, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE                  )
                                    )    NO. 01C01-9702-CC-00053
      Appellee,                     )
                                    )    WILLIAMSON COUNTY
v.                                  )
                                    )    Hon. Donald P. Harris
TRAMPAS DALE SWEENEY                )
                                    )    (Sentencing)
      Appellant                     )
                                    )




For the Appellant                        For the Appellee

C. Diane Crosier                         John Knox Walkup
Assistant Public Defender                Attorney General & Reporter
P.O. Box 68
Franklin, TN. 37065                      Sarah M. Branch
                                         Assistant Attorney General
                                         2nd Floor Cordell Hull Building
                                         425 Fifth Avenue North
                                         Nashville, TN. 37243-0943

                                         Joseph D. Baugh, Jr.
                                         District Attorney General
                                         Williamson County Cthse. Ste. G-6
                                         P.O. Box 937
                                         Franklin, TN. 37065-0937

                                         Jeff Burks
                                         Assistant District Attorney General
                                         P.O. Box 937
                                         Franklin, TN. 37065-0937




OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

WILLIAM M. BARKER, JUDGE
                                                     OPINION

         The appellant, Trampas Dale Sweeney, appeals as of right the sentences he

received following guilty pleas in the Circuit Court of Williamson County to the

offenses of evading arrest and driving a motor vehicle while classified as an habitual

motor vehicle offender (“HMVO”). 1 The trial court sentenced the appellant as a Range

III persistent offender and ordered him to serve five (5) years in the Tennessee

Department of Correction for driving a motor vehicle while declared an HMVO, a Class

E felony; and eleven (11) months and twenty-nine (29) days in the Williamson County

Jail for evading arrest, a Class A misdemeanor. The sentences were ordered to run

concurrently for a total effective sentence of five (5) years.

         On appeal, the appellant contends that the trial court failed to properly consider

probation for the offense of driving while declared an HMVO. He further contends that

he should have been placed on community corrections. We affirm the judgment of the

trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

         The appellant in this case is no stranger to the criminal justice system in

Tennessee. He was originally declared an habitual motor vehicle offender on June 2,

1989, based upon his four (4) prior convictions for driving with a revoked license and

one (1) prior conviction for driving while under the influence of an intoxicant. Since

1989, the appellant has received six (6) convictions for operating a motor vehicle while

declared an HMVO, two (2) convictions for driving with a revoked license, two (2)

convictions for driving while under the influence of an intoxicant, one (1) conviction for

marijuana possession, and one (1) conviction for evading arrest.2


         1
           The appe llant w as ind icted on th e follo wing char ges : (1) O pera ting a mo tor ve hicle in
W illiam son Cou nty, T enn ess ee w hile cla ssifie d as a n HM VO ; (2) D riving a m otor v ehic le upo n a pu blic
highway in Williamson County, Tennessee when his privilege to do so was canceled, suspended, or
revoked; (3) Evading arrest; and (4) Possessing a controlled substance, to-wit: diazepam, being
classified as a Schedule IV controlled substance. Pursuant to a plea agreement, the appellant pled
guilty to evading arrest and operating a motor vehicle while declared an HMVO, and the State entered
nolle prosequi on the rem aining co unts.

         2
          One of the HMVO violations, committed on March 19, 1994, occurred while the appellant was
free on bo nd fr om a 199 3 off ens e. Ad dition ally, the offe nse s at is sue in this c ase were com mitte d wh ile
the appe llant was on probation from conviction s in 1994 .

                                                           2
       In the present case, appellant challenges his sentences on the ground that he

is somehow suitable for probation or community corrections.

       This issue is without merit.

       When an appellant challenges his sentence, we must conduct a de novo review

of the record. See Tenn. Code Ann. § 40-35-401(d) (Supp.1996). The sentence

imposed by the trial court is accompanied by a presumption of correctness and the

appealing party has the burden of showing that the sentence is improper. See Tenn.

Code Ann. § 40-35-401 (Sentencing Commission Comments). That presumption,

however, is conditioned upon an affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances. See

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

       Tennessee Code Annotated section 40-35-103 sets out the sentencing

considerations for courts to follow when determining whether a defendant should be

incarcerated. Those factors include: whether confinement is necessary to protect

society or to avoid depreciating the seriousness of the offense, whether “confinement

is particularly suited to provide an effective deterrence to others likely to commit

similar offenses,” and whether “measures less restrictive than confinement have

frequently been applied unsuccessfully to the defendant.” See Tenn. Code Ann. § 40-

35-103(1) (Supp. 1996).

       The trial court gave full consideration to the relevant evidence and

circumstances before ordering the appellant’s sentences. As the trial court found, the

appellant has a criminal record of over fifteen (15) convictions and has demonstrated

an unwillingness to comply with the conditions of probation and community release.

       Nevertheless, the appellant argues that the trial court should have considered

probation for the HMVO offense in light of this Court’s previous decision in State v.

Ricky Fife, No. 03C01-9401-CR-0036 (Tenn. Crim. App. at Knoxville, June 15, 1995).

The appellant’s reliance on Fife is without merit. In Fife, a panel of this Court



                                             3
acknowledged that the 1989 Sentencing Reform Act supersedes Tennessee Code

Annotated section 55-10-616(c), so that trial courts may now suspend all or part of a

habitual motor vehicle offender’s sentence. See slip op. at 2, n.2.3 However, trial

courts maintain full discretion to determine the appropriate sentence under the

Sentencing Reform Act of 1989, and nothing in that Act supports appellant’s

contention that he is suitable for alternative sentencing.

        To the contrary, from our de novo review, we conclude that appellant’s

sentences, as set under Range III, are clearly justified in light of his criminal history

and his persistent disregard for the laws of this State. The appellant has failed to

carry his burden of showing that his sentences are improper.

        Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals, the judgment

of the trial court is affirmed.



                                                   ___________________________
                                                   WILLIAM M. BARKER, JUDGE


CONCUR:


__________________________
JOE B. JONES, Presiding Judge


__________________________
PAUL G. SUMMERS, JUDGE




        3
         Prior to the Sentencing Reform Act of 1989, Tennessee Code Annotated section 55-10-616©
preclud ed trial cour ts from suspe nding an y portion of a habitual m otor vehic le offend er’s sen tence.

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