        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 22, 2010

            STATE OF TENNESSEE V. RICKY LANE MCKNIGHT

              Direct Appeal from the Circuit Court for Marshall County
                       No. 2010-CR-7    Robert Crigler, Judge




               No. M2010-01092-CCA-R3-CD - Filed December 1, 2010


A Marshall County grand jury indicted the Defendant, Ricky Lane McKnight, for violation
of the Habitual Motor Offender Act and driving on a revoked license. The trial court ordered
the Defendant to serve an effective sentence of three and one-half years. On appeal, the
Defendant argues that the trial court’s sentence is excessive. After a thorough review of the
record and the applicable law, we affirm the trial court’s judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Ricky Lane McKnight.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant
Attorney General; Charles F. Crawford, Jr., District Attorney General; and Weakley E.
Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                         I. Facts
                                 A. Guilty Plea Hearings

      A Marshall County grand jury indicted the Defendant for violation of the Habitual
Motor Offender Act, a Class E felony, and driving on a revoked license, a Class A
misdemeanor. At the Defendant’s February 2010 plea submission hearing, the State
summarized the evidence supporting the Defendant’s charges as follows:
        These events occurred on December 6, 2009, here in Marshall County,
        Tennessee. Prior to that, out of this court, the [D]efendant had an order
        declaring him to be an habitual motor offender.

        Also, his driver’s license was revoked, and he had been convicted of driving
        on a revoked driver’s license . . . seven prior times before this.

                                          .   .   .   .

        On [December 6 2009], a city officer sees the [D]efendant driving an
        automobile on the city highways, with a taillight out. He pulls the taillight
        over; discovers that the driver is [the Defendant].

        [The Defendant] tells him he doesn’t have a driver’s license. When the officer
        runs it, he determines exactly what I have told you, that his license has been
        revoked.

The Defendant plead guilty to violation of the Habitual Motor Offender Act and to driving
on a revoked license, with the sentences to be determined by the trial court.

                                   B. Sentencing Hearing

       The Defendant was sentenced for the above named convictions on April 28, 2010. The
following evidence was presented at the sentencing hearing: The parties agreed that, based
upon the Defendant’s criminal history, he was a Range II offender. The State entered into
evidence the facts read into the record during the plea submission hearing and the Presentence
Investigative Report.

        Loranda Borja, who works for the Tennessee Probation and Parole Department,
testified that she prepared the Presentence Investigation Report for this case. Borja testified
that the Defendant gave the following statement as to the events underlying these charges: “I
wasn’t driving a car that day. Howard Bryant was with me. He was driving the car, and he
is a diabetic. He had a diabetic spell, and the reason I was driving was to get him home and
get his medication.” Borja agreed that the police officer’s report, which the presentence
report included, indicated that the Defendant’s vehicle was “released to Howard Bryant, at the
owner’s request.”

       Borja testified that the Defendant met with her one week after he entered a guilty plea
for the charges in this case while released from jail on bond. During this interview, the
Defendant said that he began using alcohol at age fourteen and last used alcohol the Friday
night prior to her interview with him. The Defendant told Borja that he typically drinks a
twenty-four pack of beer every Friday night. The Defendant said that he first used marijuana
at age fourteen and reported smoking marijuana every Friday night including the Friday night
prior to his interview with Borja.

       Borja testified that she had difficulty contacting the Defendant’s prior employers. She
described his work history as “odd-job kind of things” and said that he had not worked at all
during the current year.

       On cross-examination, Borja agreed that the Defendant had only one conviction for
driving under the influence and that his last criminal conviction was in 2001.

       Larry Hazelwood, a Lewisburg City Police Department officer, was the officer who
arrested the Defendant on these charges. The officer stated that he had no indication that
Howard Bryant, the individual to whom the Defendant’s car was released, was experiencing
a serious medical condition, as the Defendant contended in his interview with Borja.

       The Defendant testified that he was forty-nine at the time of the sentencing hearing and
lived with his “boss man,” Jimmy Bryant. The Defendant testified that, for three or four
months, he had full-time employment cleaning theaters during the night. The Defendant
explained that he rides to and from work with his “boss man.” The Defendant acknowledged
that he had “a lot of driving problems” but noted that his last conviction was in 2001. The
Defendant said that he knew he was not supposed to be driving but received the 2001
conviction because he was the “only kid at home” and helping his mother pay bills so he had
to drive to and from work.

       The Defendant agreed that he drinks a twenty-four pack of beer at home on Friday
nights but said that he neither drives after drinking nor drinks during the week. As to the
charges against him in this case, the Defendant said:

        I have learned a lot. I sure know I should not have been driving. Like I said,
        it was a have-to case, or I wouldn’t have done it, if it wouldn’t have had to be
        a have-to. I hadn’t drove in 10 years. I wouldn’t have been driving then. I
        don’t drive no more, none.

       On cross-examination, the Defendant agreed that smoking marijuana was illegal and
that he smoked marijuana while released on bond, two days after pleading guilty to the
charges in this case.

      At the conclusion of the hearing, the trial court merged the driving on a revoked license
conviction with the violation of the habitual motor offender act conviction and sentenced the
Defendant to serve three years and six months. It is from this judgment that the Defendant
now appeals.
                                          II. Analysis

       On appeal, the Defendant claims that the trial court’s sentence of three and one-half
years to serve in jail is excessive in light of the following facts: he was polite and forthright
with the probation officer, he is employed, his last conviction was in 2001, and on the night
in question, he drove only because his companion was experiencing a diabetic episode.

       When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d) (2009). As the Sentencing Commission Comments to this section note, the burden
is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,
Sentencing Comm’n Cmts (2009). This means that if the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
Sentencing Act, the appellate court may not disturb the sentence even if a different result was
preferred. Tenn. Code Ann. § 40-35-103 (2009); State v. Ross, 49 S.W.3d 833, 847 (Tenn.
2001). The presumption does not apply to the legal conclusions reached by the trial court in
sentencing a defendant or to the determinations made by the trial court which are predicated
upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001);
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d
922, 929 (Tenn. Crim. App. 1994).

        The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe
the process for determining the appropriate length of a defendant’s sentence. Under the Act,
a trial court may impose a sentence within the applicable range as long as the imposed
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)
(2009); see State v. Carter, 254 S.W.3d 335, 343 (Tenn.2008). The Tennessee Code allows
a sentencing court to consider the following enhancement factors, among others, when
determining whether to enhance a defendant’s sentence:

        (1) The defendant has a previous history of criminal convictions or criminal
        behavior, in addition to those necessary to establish the appropriate range; ...

        (8) The defendant, before trial or sentencing, failed to comply with the
        conditions of a sentence involving release into the community;


T.C.A. § 40-35-114(1) and (8) (2009). If an enhancement is not already an essential element
of the offense and is appropriate for the offense, then a court may consider the enhancement
factor in its length of sentence determination. T.C.A. § 40-35-114 (2009). In order to ensure
“fair and consistent sentencing,” the trial court must “place on the record” what, if any,
enhancement and mitigating factors it considered as well as its “reasons for the sentence.”
T.C.A. § 40-35-210(e). Before the 2005 amendments to the Sentencing Act, both the State
and a defendant could appeal the manner in which a trial court weighed enhancement and
mitigating factors it found to apply to the defendant. T.C.A. § 40-35-401(b)(2) (2009). The
2005 amendments deleted as grounds for appeal, however, a claim that the trial court did not
properly weigh the enhancement and mitigating factors. See 2005 Tenn. Pub. Acts ch. 353,
§§ 8, 9. In summary, although this Court cannot review a trial court’s weighing of
enhancement factors, we can review the trial court’s application of those enhancement factors.
T.C.A. § 40-35-401(d) (2009); Carter, 254 S.W.3d at 343.

      The Defendant, a Range II offender, was sentenced for a violation of the habitual
motor offender act, a Class E felony, which has a sentencing range of two to four years. See
T.C.A. § 40-35-112(b)(5).

       The trial court applied two enhancement factors: (1), that the Defendant had a previous
history of criminal convictions or criminal behavior; and enhancement factor (8), that the
Defendant, before sentencing, failed to comply with the conditions of a sentence involving
release into the community. T.C.A. § 40-35-114(1) and (8). The trial court applied mitigating
factor (1), that the Defendant neither caused nor threatened serious bodily harm, and the
“catch-all” mitigating factor (13), citing the fact that the Defendant pled guilty sparing the
taxpayers the expense of trial. T.C.A. § 40-35-113 (1) and (13). The trial court stated that it
placed “greater weight” on the Defendant’s prior record than on the mitigating factors present
in the Defendant’s case. Based upon its findings, the trial court sentenced the Defendant to
three years and six months for the Class E felony conviction.

        The Defendant does not specifically challenge the trial court’s application of
enhancement factors and mitigating factors, but makes a blanket assertion that the sentence
is excessive. In reviewing the sentence, we will consider both the trial court’s application of
enhancement factors and its denial of alternative sentencing, as both go to the Defendant’s
complaint that the sentence is excessive. Our review of the record reveals that the trial court
correctly applied enhancement factor (1). The Defendant, who was sentenced as a Range II
offender, had four prior felony convictions. Additionally, the Defendant had seven
convictions for driving with a revoked license, four convictions for failure to carry a license,
one conviction each for driving under the influence, leaving the scene of an accident, driving
with a suspended license, disturbing the peace, and assault. Also, he admitted that he used
illegal drugs. This extensive criminal conduct demonstrates that the Defendant has a
“previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range.” See T.C.A. § 40-35-114(1). As such, the trial court
properly applied enhancement factor (1) to the Defendant’s conviction.

       Further, the record reflects that the Defendant was sentenced to community corrections
for his 2001 conviction for violation of the Habitual Motor Offender Act, and later the
Defendant’s community corrections sentence was revoked. Thus, the record supports the trial
court’s finding that, “before trial or sentencing, the Defendant failed to comply with the
conditions of a sentence involving release into the community.” See T.C.A. § 40-35-114(8).
As such, the trial court properly applied enhancement factor (8) to the Defendant’s conviction.

       We now turn to the issue of alternative sentencing. Under the 2005 amendments to the
Sentencing Reform Act, a defendant is no longer presumed to be a favorable candidate for
alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A. §
40-35-102(6) (2006)). Instead, a defendant not within “the parameters of subdivision (5) [of
T.C.A. § 40-35-102], and who is an especially mitigated or standard offender convicted of a
Class C, D or E felony, should be considered as a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary.” Id. (footnote omitted). T.C.A.
§ 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note that a trial court is “not
bound” by the advisory sentencing guidelines; rather, it “shall consider ” them. T.C.A. §
40-35-102(6) (emphasis added).

       A defendant seeking probation bears the burden of “establishing [his] suitability.”
T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, “even though
probation must be automatically considered as a sentencing option for eligible defendants, the
defendant is not automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303
(2009), Sentencing Comm’n Cmts.

        When sentencing the defendant to confinement, a trial court should consider whether:

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

         (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.

T.C.A. § 40-35-103(A)-(C) (2009). In choosing among possible sentencing alternatives, the
trial court should also consider “[t]he potential or lack of potential for the rehabilitation or
treatment.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they
relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim.
App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v. Zeolia,
928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn.
Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.
       At the sentencing hearing in this case, the trial court sentenced the Defendant as a
Range II, multiple offender to a sentence of three years and six months of incarceration. The
court then set out to determine the manner of service and made the following findings:

         When your license is revoked and then, later, when you’re declared an habitual
         traffic offender, the law expects you not to ignore that. It is not your decision
         just to choose to drive in violation of that. It is [a] criminal offense[].

         Confinement is needed to avoid depreciating the seriousness of the offense.

         And more applicable is less restrictive measures than confinement have
         frequently or recently been applied unsuccessfully to the [D]efendant. The
         [D]efendant has been on probation many times before. Obviously, that has not
         deterred him. And even jail sentences have not deterred him from continuing
         to violate the law.

         Also, looking at things like [his admission of] smoking marijuana after he pled
         guilty in this case.

                                           .   .   .

         It appears he has been to Buffalo Valley before, so that didn’t do any good.
         So I am going to deny alternative sentencing.

Based upon its findings under Tenn. Code Ann., section 40-35-103, the trial court denied the
Defendant an alternative sentence.

        The record does not preponderate against the trial court’s findings. The Defendant was
declared a habitual motor offender on May 18, 1992. It is after this date that the Defendant
acquired the seven convictions for driving on a revoked license, the DUI conviction, and his
previous felony conviction for violation of the Habitual Motor Offender Act. Many of these
sentences involved a combination of jail time and supervised probation. The Defendant, in his
interview for the presentence report, both denied driving and justified his violation of the law
as necessary due to his companion’s illness. Further, he later requested the officer release his
vehicle to the same person he now claims was too ill to drive. Two days after pleading guilty
to these crimes and while released on bond, the Defendant engaged in additional criminal
activity by smoking marijuana. Finally, the presentence report indicates a failed attempt at a
recent probated sentence. Thus, the record adequately supports the trial court’s findings that
confinement is necessary to avoid depreciating the seriousness of the offense and least
restrictive measures have been unsuccessful. We conclude that, in ordering confinement, the
trial court considered the pertinent facts of this case and appropriate sentencing principles. As
such, its denial of alternative sentencing is presumptively correct. See T.C.A. § 40-35-401(d);
Mencer, 798 S.W.2d at 549. The Defendant is not entitled to relief on this issue.

                                       III. Conclusion

       After a thorough review of the record and the applicable law, we conclude that the trial
court adhered to proper statutory sentencing procedures and considered appropriate factors
when it imposed its sentence. As such, we affirm the trial court’s judgment.



                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE
