             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE              FILED
                            AUGUST 1998 SESSION
                                                          September 16, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    C.C.A. No. 01C01-9710-CC-00476
      Appellee,                    )
                                   )    Marshall County
v.                                 )
                                   )    Honorable Charles Lee, Judge
JEFFREY DAVID HAHN,                )
                                   )    (Sentencing)
      Appellant.                   )




FOR THE APPELLANT:                      FOR THE APPELLEE:

Julie A. Martin                         John Knox Walkup
P. O. Box 426                           Attorney General & Reporter
Knoxville, TN 37901-0426                425 Fifth Avenue, North
(On Appeal)                             Nashville, TN 37243-0493

Michael D. Randles                      Georgia Blythe Felner
Assistant Public Defender               Assistant Attorney General
218 North Main                          425 Fifth Avenue, North
Shelbyville, TN 37160                   Nashville, TN 37243-0493
(At Trial)
                                        William M. McCown
OF COUNSEL:                             District Attorney General
John Harwell Dickey                     215 East College
District Public Defender                Fayetteville, TN 37334-0878
105 South Main
Fayetteville, TN 37334                  Weakley E. Barnard
(At Trial)                              Assistant District Attorney General
                                        Marshall County Courthouse
                                        Lewisburg, TN 37091




OPINION FILED: _____________________________


AFFIRMED


L. T. LAFFERTY, SPECIAL JUDGE
                                        OPINION

       The defendant, Jeffery David Hahn, appeals as of right from the manner of service

of sentence imposed by the Marshall County Circuit Court for the offenses of forgery,

passing worthless checks, and failure to appear. As a result of a guilty plea, the defendant

received a sentence of eight (8) years, Range II, for the offense of forgery; a sentence of

two (2) years, Range II, for the offense of passing worthless checks; and a sentence of two

(2) years, Range II, for the offense of failure to appear, all to run consecutively in the

Department of Correction. As part of the plea agreement, the defendant requested

placement in the community corrections program under Tenn. Code Ann. § 40-36-106.

After a sentencing hearing, the trial court denied placement in the community corrections

program. The defendant complains the trial court erred by not properly considering the

defendant’s eligibility for alternative sentencing in the community corrections program.



       After a review of the evidence in this record, the briefs of the parties, and the

applicable law, we affirm the trial court’s judgment.



                                          FACTS



       On March 20, 1996, the Marshall County Grand Jury indicted the defendant in cause

no. 12805 in twenty-four (24) counts of forgery and uttering various checks of the Columbia

Hearth & Home, Inc., between December 6, 1995 and December 21, 1995, totaling

approximately $11,000.00. On August 21, 1996, the defendant was indicted for two counts

of passing worthless checks in cause no. 12944, on June 29, 1996 for $503.90 and on July

3, 1996 for $60.90. On December 11, 1996, the defendant was indicted for the offense

of failure to appear on September 18, 1996 before the Marshall County Circuit Court for

an official proceeding.

                                     GUILTY PLEAS



       On February 19, 1997, the defendant entered a plea of guilty to the offense of

forgery, agreeing to a sentence of eight (8) years, Range II, in count one of cause no.

                                             2
12805. As part of the plea agreement, counts two (2) through twenty-four (24) would be nol

prosed. Also, the defendant agreed to restitution to be determined at the sentencing

hearing based on all counts. The defendant stipulated on December 19, 1995 he stole a

check from his employer, Mr. Frank Broom, owner of Columbia Hearth and Home, Inc., and

cashed the check in the amount of $7,000. The defendant was identified as the party who

cashed the check.



       In cause no. 12944, the defendant agreed he passed a worthless check in the

amount of $504.90, on June 29, 1996 to the Marshall Farmers Co-op. Count two (2) was

nol prosed.



       In cause no. 13016, the defendant entered a guilty plea to failure to appear in the

Marshall County Circuit Court on September 18, 1996.



                                  SENTENCING HEARING



       At the sentencing hearing, the defendant testified he was 41 years old and spent

some time in the U. S. Navy. The defendant was presently married and raising one child

and a 17-year-old stepdaughter. The defendant had been married four times with three

additional children, but had difficulty in making his child support payments. The defendant

attributed this difficulty to being in jail most of the time and “games his ex-wife was playing.”

The defendant’s present wife is unable to work due to a nerve problem. While the

defendant was in jail, his wife was receiving some sort of government assistance.



       If released from jail on the community corrections program, the defendant would

contact Margaret Hereford, associated with a vocational rehabilitation program in Marshall

County, for job training. The defendant agreed to make restitution payments beginning with

$250 a month, plus $1,000 in a savings account. The defendant was sent to Middle

Tennessee Mental Health Institute. The defendant testified the Institute, upon his release,

would set up a case manager to work with the defendant to pay his bills, budget his money


                                               3
and make sure he stays on his medicine. The defendant testified he was taking Paxil “for

something in the head.” Also, the defendant took Klonopin for seizures.



      As to the offenses the defendant stated, “I admit it since I got picked up on it.” The

defendant agreed the offenses were his fault. The defendant agreed that for the past

twenty (20) years he has been in trouble with the law, such as convictions ranging from

stealing a truck in Texas, receiving three years, 14 counts of passing worthless checks in

Humphreys County, bail jumping, a DUI conviction in Williamson County, and passing

worthless checks in Marshall County in 1989. As for the present offenses, the defendant

testified he was on a drinking binge.



      In summary, the defendant testified, in his plea for an alternative sentence:

             Well, I have got a wife and kids to worry about now. I didn’t
             before. I think after going to the--I was at Parthanon Pavillion.
             They did a lot of counseling with me. Then turned around and
             I went to Middle Tennessee; got a lot of counseling down
             there. I feel a lot better about myself than I did before all of this
             ever got started.


      The presentence report in this record establishes the defendant has a substantial

history of criminal convictions and behavior: (1) the defendant was convicted of larceny

in Texas, in March, 1977, received a three-year sentence, and placed on parole; (2) on

November 20, 1985, the defendant was convicted in Humphreys County of 17 counts of

passing worthless checks, sentenced to five years on three counts in the Department of

Correction and eleven months and twenty-nine days on 14 counts, and placed on probation

for five years; (3) on November 16, 1987, the defendant was convicted of petit larceny,

sentenced to six months, and placed on probation for one year; (4) on June 27, 1988, the

defendant was convicted of DUI, sentenced to eleven months and twenty-nine days, and

placed on probation after serving 48 hours; (5) on December 28, 1989, the defendant was

convicted of bail jumping and sentenced to three years; (6) on December 15, 1989, the

defendant was convicted of passing worthless checks in Marshall County and sentenced

to six years, Range II; (7) on December 15, 1989, the defendant was convicted of passing

two worthless checks and received sentences of eleven months and twenty-nine days; (8)



                                              4
between June 26, 1991 and October 20, 1992, the defendant was arrested four times and

convicted of driving on a revoked license; and (9) on October 11, 1994, the defendant was

convicted of passing a worthless check and received a sentence of eleven months and

twenty-nine days.



       As part of the defendant’s criminal history, the defendant had two periods of

probation revoked.1



       Based upon this evidence, the trial court denied placement in the community

corrections program.



                       DENIAL OF COMMUNITY CORRECTIONS



       The defendant contends the trial court failed to consider the sentencing principles

in the Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-103. The defendant

argues the trial court appears to have decided this case on the basis of one problem it

perceives in the criminal justice system. Further, the defendant contends the trial court

failed to appropriately consider the defendant’s potential for rehabilitation and treatment,

since he had already begun mental health counseling and drug treatment for his alcohol

and mental health problems.



       The defendant must establish the burden of showing that the manner of the service

of a sentence imposed by a trial court is improper. State v. Holland, 860 S.W.2d 53, 60

(Tenn. Crim. App. 1993). This Court must conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn. Code Ann.

§ 40-35-401(d). The “presumption of correctness which accompanies the trial court’s

action is conditioned upon the affirmative showing in the record that the trial court



       1
        For some strange reason the defendant’s parole was never revoked with numerous
arrests and convictions during the parole period. It should be noted the defendant’s parole
expired April 3, 1995, and in less than eight months the defendant committed these
offenses.

                                             5
considered the sentencing principles and all relevant facts and circumstances.” State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Thus, if there is no presumption of correctness,

this Court conducts a de novo review without the presumption of correctness. State v.

Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992), per. app. denied (Tenn. 1993).



       The defendant contends he is eligible for placement in the community corrections

program under Tenn. Code Ann. § 40-36-106 (a):

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

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

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

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

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

              (6)(c) Felony 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.


       In response to the defendant’s plea for an alternative sentence, the trial court found

that normally the defendant would be a suitable candidate for an alternative sentence.

However, the defendant was not entitled to such a presumption since the defendant was

a Range II offender and facing cumulative sentences of 12 years. In denying an alternative

sentence, the trial court stated:

              Would that there could be some pill we could administer to
              keep people form violating the law, but there is not such
              medication. The Court finds the defendant has failed to carry
              his burden of proof and with this comment, one of the reasons
              in this court’s opinion that our criminal justice system continues
              to take a backward slide is that there is not certainty any more
              in the law. There once was a virtual certainty that a person with
              a record that Mr. Hahn has would go to the penitentiary if he
              violated the law. The mere fact this court has to conduct a
              sentencing hearing with such a record indicates as well as

                                              6
              apparently Mr. Hahn felt that he might have a chance at
              alternative sentencing, ergo there is no certainty in the law. We
              will continue to slip backwards with such a velocity.


       Although the trial court did not articulate in its ruling the sentencing requirements of

Tenn. Code Ann. § 40-35-103, it was following these requirements in spirit. This statute

in pertinent part states:

              (1) Sentences involving confinement should be based on
                  the following considerations:

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

                                           *****

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


The defendant called the court’s statements a diatribe concerning the criminal justice

system, but it appears more that the trial court was expressing its frustration with the

defendant’s total lack of personal responsibility for his actions.



       In conclusion, we find from our de novo review that the record is adequate to

support the denial of an alternative sentence under the Community Corrections Act. The

judgment is affirmed.




                                                   __________________________________
                                                   L. T. LAFFERTY, SPECIAL JUDGE




                                              7
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




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