        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 27, 2012

               STATE OF TENNESSEE v. RICKY RAY STARNES

             Direct Appeal from the Criminal Court for Sullivan County
                        No. S58561     R. Jerry Beck, Judge


               No. E2011-02244-CCA-R3-CD - Filed December 21, 2012


The appellant, Ricky Ray Starnes, pled guilty to a violation of a habitual traffic offender
order, a Class E felony, and a violation of registration, a Class C misdemeanor. The trial
court imposed a total effective sentence of two years. On appeal, the appellant challenges
the trial court’s denial of community corrections. Upon review, we affirm the judgments of
the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                                     Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Joseph F. Harrison, Blountville, Tennessee, for the appellant, Ricky Ray Starnes.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Barry
P. Staubus, District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The appellant pled guilty to a violation of a habitual traffic offender order, a Class E
felony, and to a violation of registration, a Class C misdemeanor. The plea agreement
provided that the appellant would receive concurrent sentences of two years and one month
and thirty days, respectively. As a Range II multiple offender, the appellant was eligible for
release after serving thirty-five percent of his sentences in confinement. The plea agreement
further provided that the trial court was to determine the manner of service of the sentences.
       At the appellant’s guilty plea hearing, the State recited the following factual basis for
the appellant’s guilty pleas:

              First, [the appellant] was declared an habitual traffic offender in
              the Criminal Court for Sullivan County, Tennessee, . . . and that
              order was in full force and effect when on September the 20 th ,
              2010, Officer Andrea Mullins of the Kingsport Police
              Department observed a vehicle with a tag that, when run through
              dispatch, came back registered to a different vehicle.

                    What had brought the tag to the attention of the officer
              was her observations that the tag had expired in 2007.

                     She initiated a traffic stop on the vehicle, and identified
              the driver as [the appellant].

                     [The appellant] told her that his license had been
              suspended for driving under the influence. When she checked
              with dispatch she determined that in fact [the appellant] was an
              habitual traffic offender.

                      And at that time [the appellant] was charged with and
              arrested for an habitual traffic offender and the expired
              registration.

                      ....

                    It was stipulated by [the appellant] he is a Range [II]
              offender.

       At the sentencing hearing, the State submitted as an exhibit the appellant’s
presentence report. Upon examining the report, the trial court noted that the fifty-four-year-
old appellant had a lengthy criminal record, consisting of three previous convictions for
violating a habitual traffic offender order; eleven driving under the influence (DUI)
convictions; two violation of registration convictions; eight public intoxication convictions;
an assault and battery conviction; an assault conviction; two misdemeanor theft convictions;
four driving on a revoked license convictions; one misdemeanor resisting arrest conviction;
one driving without a license conviction; one leaving the scene of an accident with property
damage conviction; and one receiving stolen property conviction. Additionally, the appellant
had a juvenile adjudication for automobile burglary. The appellant received suspended

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sentences for many of his adult convictions. However, the presentence report did not reflect
any probation violations.

       According to the presentence report, the appellant attended school through the seventh
grade. The appellant reported that his physical health was poor because he had problems
with his heart, leg, lungs, and back. The appellant disclosed that he took medication for
hypertension and for blood clots. The appellant maintained that his mental health was poor.

       The report reflects that the appellant began using alcohol when he was fifteen years
old and that he continued to drink alcohol at least three times per week. The appellant never
sought treatment for his alcohol abuse problems.

        The appellant testified at the sentencing hearing that he lived with his girlfriend and
that he had been divorced since the late 1990s. The appellant said he had a seventeen-year-
old daughter and did not pay child support because she received social security benefits. The
appellant stated that he never earned a general equivalency diploma (GED) and that his
ability to read and write was poor. The appellant stated that he worked as an electrician’s
assistant for thirty years, but in January 11, 2011, he began receiving disability checks
because of blood clots in his leg, a rod in his leg, and heart problems.

       The appellant maintained that he did not have a problem with drugs, but he
acknowledged that he had a problem with alcohol. He said that he planned to stop drinking
due to his impaired liver function.

        The appellant said that before he started receiving his disability check, he was having
a yard sale to earn money when a man stopped and told him there was a nice chair and
television on the next block. The appellant put a tag on a car that was not his and went to get
the items. During his trip, he was pulled over and arrested in the instant case. He conceded
he made a mistake and asserted he would not do it again. The appellant said that he no
longer drove and did not have a vehicle.

        The appellant acknowledged that his criminal record was poor, but he maintained that
it had been eleven or twelve years since his last trouble with the law. He said that he could
obey the terms of any alternative sentence, noting that he had no previous probation
violations.

       The trial court stated that the appellant had a “‘refrigerator class’ prior record” of
offenses involving alcohol yet he continued to abuse alcohol. The court acknowledged that
the appellant had a good work history. Noting that the appellant was a Range II multiple
offender, the court denied alternative sentencing. The court specifically considered

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community corrections but found that the appellant had poor rehabilitative potential because
he continued to offend despite having previously received the largess of probationary
sentences.

       On appeal, the appellant challenges the trial court’s denial of alternative sentencing,
specifically community corrections.

                                        II. Analysis

        Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Susan Renee Bise, __ S.W.3d __,
No. E2011-00005-SC-R11-CD, 2012 WL 4380564, at *19 (Tenn. Crim. App. at Knoxville,
Sept. 26, 2012). Our supreme court has further explicitly stated that “the abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to within-range sentences
that reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Christine Caudle,
__ S.W.3d __, No. M2010-01172-SC-R11-CD, 2012 WL 5907374, at *5 (Tenn. at Nashville,
Nov. 27, 2012). In conducting its review, this court considers the following factors: (1) the
evidence, if any, received at the trial and the 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 involved; (5) evidence and information offered
by the parties on enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise,
__ S.W.3d __, No. E2011-00005-SC-R11-CD, 2012 WL 4380564, at *11. The burden is on
the appellant to demonstrate the impropriety of his sentence. See Tenn. Code Ann. §
40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because the
              general assembly set the minimum length of sentence for each
              felony class to reflect the relative seriousness of each criminal
              offense in the felony classifications; and

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                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114.

Tenn. Code Ann. § 40-35-210(c).

        Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, __ S.W.3d __, No. E2011-00005-SC-R11-CD, 2012 WL 4380564, at *11; State v.
Carter, 254 S.W.3d 335, 343 (Tenn. 2008). We note that “a trial court’s weighing of various
mitigating and enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254
S.W.3d at 345. In other words, “the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Id. at 343. “[A]ppellate courts are therefore left with
a narrower set of circumstances in which they might find that a trial court has abused its
discretion in setting the length of a defendant's sentence.” Id. at 345-46. “[They are] bound
by a trial court’s decision as to the length of the sentence imposed so long as it is imposed
in a manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 346.

       An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentences meet this
requirement. Moreover, an appellant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).

       In the instant case, although the appellant was convicted of a Class E felony, he is a
Range II multiple offender; therefore, he is not considered to be a favorable candidate for
alternative sentencing. Regardless, because the sentences imposed were ten years or less, the
appellant was eligible for alternative sentencing.

        The Community Corrections Act of 1985 was enacted to provide an alternative means
of punishment for “selected, nonviolent felony offenders in front-end community based
alternatives to incarceration.” Tenn. Code Ann. § 40-36-103. Tennessee Code Annotated
section 40-36-106(a)(1) provides that an offender who meets all of the following minimum
criteria shall be considered eligible for community corrections:

              (A) Persons who, without this option, would be incarcerated in
              a correctional institution;

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             (B) Persons who are convicted of property-related, or drug- or
             alcohol-related felony offenses or other felony offenses not
             involving crimes against the person as provided in title 39,
             chapter 13, parts 1-5;

             (C) Persons who are convicted of nonviolent felony offenses;

             (D) Persons who are convicted of felony offenses in which the
             use or possession of a weapon was not involved;

             (E) Persons who do not demonstrate a present or past pattern of
             behavior indicating violence;

             (F) Persons who do not demonstrate a pattern of committing
             violent offenses . . . .

An offender is not automatically entitled to community corrections upon meeting the
minimum requirements for eligibility. State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App.
1998).

      For offenders not eligible for community corrections under subsection (a), Tennessee
Code Annotated section 40-36-106(c) creates a “special needs” category of eligibility.
Subsection (c) provides that

             [f]elony offenders not otherwise eligible under subsection (a),
             and who would be usually considered unfit for probation due to
             histories of chronic alcohol, drug abuse, or mental health
             problems, but whose special needs are treatable and could be
             served best in the community rather than in a correctional
             institution, may be considered eligible for punishment in the
             community under the provisions of this chapter.

Tenn. Code Ann. § 40-36-106(c).

      When determining a defendant’s suitability for alternative sentencing, courts should
consider whether the following sentencing considerations, set forth in Tennessee Code
Annotated section 40-35-103(1), are applicable:

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

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              (B) Confinement is necessary to avoid depreciating the
              seriousness of the offense or confinement is particularly suited
              to provide an effective deterrence to others likely to commit
              similar offenses; or

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

Additionally, “[t]he potential or lack of potential for the rehabilitation or treatment of the
defendant should be considered in determining the sentence alternative or length of a term
to be imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of
criminal conduct and “evincing failure of past efforts at rehabilitation” is presumed
unsuitable for alternative sentencing. Tenn. Code Ann. § 40-35-102(5).

       The trial court found, after considering the appellant’s extensive criminal record, that
the appellant’s potential for rehabilitation was poor. As we noted earlier, the appellant has
numerous prior convictions. In many of the cases, the appellant received a suspended
sentence; yet, he has continued to reoffend. See State v. Alton Ray Thomas, No. M2006-
00815-CCA-R3-CD, 2007 WL 465135, at *4 (Tenn. Crim. App. at Nashville, Feb. 13, 2007).
We conclude that, given the appellant’s extensive criminal record and his failure to
rehabilitate, the trial court did not err in failing to sentence the appellant to community
corrections.

                                      III. Conclusion

      In sum, we conclude that the trial court did not err in denying alternative sentencing.
Therefore, we affirm the judgments of the trial court.




                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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