        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 16, 2011

       STATE OF TENNESSEE v. CHARLES BRADFORD STEWART

                  Appeal from the Circuit Court for Montgomery County
                        No. 40700425 John H. Gasaway, Judge



                  No. M2010-01948-CCA-R3-CD - Filed October 11, 2011


Charles Bradford Stewart, Appellant, was indicted by the Montgomery County Grand Jury
for one count of reckless endangerment, one count of vehicular assault, one count of failure
to provide evidence of financial responsibility, and two counts of aggravated assault. After
a jury trial, Appellant was found guilty of one count of reckless aggravated assault and one
count of vehicular assault, both Class D felonies. Appellant pled guilty to failing to provide
evidence of financial responsibility. The trial court merged the convictions for reckless
aggravated assault and vehicular assault into one conviction for vehicular assault and
sentenced Appellant to twelve years in incarceration as a Career Offender. The trial court
ordered Appellant to serve one year in confinement and the remainder of the sentence on
Community Corrections. The State appealed. On appeal, the following issue is presented
for our review: (1) whether the trial court imposed an improper sentence by allowing
Appellant to serve a sentence of split confinement. After a review of the record and
applicable authorities, we determine that as a Career Offender sentenced to twelve years,
Appellant was statutorily ineligible for a Community Corrections sentence. Accordingly, the
matter is reversed and remanded for resentencing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed
                                  and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., and
R OBERT W. W EDEMEYER, J. , joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; John W. Carney, District Attorney General; and William Lamberth, Assistant
District Attorney General, for the appellant, State of Tennessee.

Hugh R. Poland, Jr., Clarksville, Tennessee, for the appellee, Charles Bradford Steward.
                                         OPINION

                                    Factual Background

      After a car accident on July 19, 2004, Appellant was indicted by the Montgomery
County Grand Jury in March of 2007 for one count of reckless endangerment, one count of
vehicular assault by intoxication, one count of failure to provide proof of financial
responsibility, and two counts of aggravated assault.

        Appellant was convicted by a jury of Count Two, vehicular assault, and Count Four,
reckless aggravated assault. The trial court held a sentencing hearing. At the hearing, the
trial court merged the conviction for reckless aggravated assault into the conviction for
vehicular assault, both Class D felonies. The trial court determined that Appellant was a
Career Offender based on a finding that Appellant had ten prior felony convictions. As a
result, Appellant was sentenced to a mandatory sentence of twelve years at 60% as a Career
Offender. The trial court determined that Appellant would serve the sentence in split
confinement, with one year in the county jail and eleven years in the Community Corrections
program. The State objected to the split confinement sentence.

       The State filed a notice of appeal pursuant to Rule 3(c)(4) of the Tennessee Rules of
Appellate Procedure. On appeal, the State insists that Appellant was ineligible for the
alternative sentence that the trial court imposed and the judgment should, therefore, be
reversed.

                                         Analysis

       On appeal, the State argues that the trial court improperly sentenced Appellant to a
sentence of split confinement where he was ineligible to receive such a sentence.
Specifically, the State contends that Appellant was not convicted of a “nonviolent felony
offense” but rather committed a crime “against the person” and therefore is not eligible for
Community Corrections. Further, the State insists that Appellant was not eligible for the
special needs exception because the twelve-year sentence rendered him ineligible for
probation and the trial court failed to make any specific findings with regards to the special
needs exception. Appellant disagrees.

        At the outset, we note that Appellant committed the underlying offenses in July of
2004. Effective June 7, 2005, the Tennessee General Assembly amended large portions of
the Criminal Sentencing Reform Act of 1989. See 2005 Tenn. Pub. Acts ch. 353. The
legislature also provided that the amendments would apply to defendants who committed a
criminal offense on or after June 7, 2005. 2005 Tenn. Pub. Act ch. 353, § 18. In addition,

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if a defendant committed a criminal offense on or after July 1, 1982, and was sentenced after
June 7, 2005, such defendant can elect to be sentenced under these later provisions by
executing a waiver of their ex post facto protections. Id. Appellant herein committed the
offenses on July 19, 2004, and was sentenced on August 12, 2010. There is no waiver
executed by Appellant in the record herein. Thus, the amendments to the Sentencing Act do
not apply to Appellant.

       We now move to a discussion of the issue presented by the State. The Sentencing
Reform Act provides for an appeal by the district attorney general “from the length, range
or manner of the service of the sentence imposed by the sentencing court.” T.C.A. § 40-35-
402(a) (2003). The State’s right of appeal “is independent of the defendant’s right of
appeal.” Id. Additionally, the right of appeal is limited to several conditions, including the
grant of “all or part of the sentence on probation.” T.C.A. 40-35-402(b)(2) (2003).

       In reviewing a State’s appeal of a defendant’s sentence, this Court applies the same
standard of review “as where the defendant takes the appeal.” T.C.A. § 40-35-402,
Sentencing Comm’n Cmts. In other words, “there is a presumption that the determination
made by the trial court was correct.” Id. This Court is required to conduct a de novo review
on the record of the issues. T.C.A. § 40-35-402(d) (2003). The State bears the burden of
establishing that an improper sentence was imposed by the trial court. T.C.A. § 40-35-402,
Sentencing Comm’n Cmts.

        A defendant who does not possess a criminal history showing a clear disregard for
society’s laws and morals, who has not failed past rehabilitation efforts, and who “is 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,” T.C.A. § 40-35-102(6) (2003), where “the sentence actually imposed upon
such defendant is eight (8) years or less.” T.C.A. § 40-35-303(a); see also State v. Fields,
40 S.W.3d 435, 440 (Tenn. 2001).

       Additionally, the principles of sentencing reflect that the sentence should be no greater
than that deserved for the offense committed and should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed. See T.C.A. §
40-35-103(2), (4) (2003). The court should also consider the defendant’s potential for
rehabilitation or treatment in determining the appropriate sentence. See id. § 40-35-103(5)
(2003).

      The Community Corrections Act was meant to provide an alternative means of
punishment for “selected, nonviolent felony offenders . . . , thereby reserving secure
confinement facilities for violent felony offenders . . . .” T.C.A. § 40-36-103(1) (2003); see

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also State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). Pursuant to statute, persons who
satisfy all of the following minimum criteria are eligible for participation in a community
corrections program:

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

       (B) 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;

       (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; [and]

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

T.C.A. § 40-36-106(a)(1) (2003) (emphasis added).

       Additionally, persons who do not otherwise satisfy the minimum criteria and “who
would usually be 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” may be considered eligible for participation in a community
corrections program. T.C.A. § 40-36-106(c) (2003).

       As we understand the State’s argument on appeal, the trial court improperly sentenced
Appellant to a sentence of split confinement where Appellant was ineligible for the
alternative sentence of community corrections because he was convicted of a “crime against
the person.” We agree. Appellant herein was convicted of vehicular assault, T.C.A. § 39-13-
106 (2003), which is a “crime against the person as provided in title 39, chapter 13, parts 1-
5.” See T.C.A. § 40-36-106(a)(1)(B) (2003). Moreover, the trial court did not make any
findings that Appellant was eligible for community corrections under the special needs
exception for alcohol, drug or mental health issues. Moreover, Appellant herein is not
presumptively entitled to an alternative sentence because he was sentenced as a career
offender, sentenced to a sentence that was eight years or more, and convicted of a crime
against the person. See T.C.A. § 40-35-102(6) (2003); § 40-36-106(a)(1) (2003). The trial

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court therefore imposed an illegal sentence by sentencing Appellant to Community
Corrections. Consequently, this case must be remanded for resentencing.

                                       Conclusion

       For the foregoing reasons, the judgment of the trial court is reversed and remanded.
On remand, the trial court should impose a sentence in accord with the statutory guidelines
and should consider all relevant available sentencing alternatives. Additionally, the trial
court should sentence Appellant under the pre-2005 amendments to the Sentencing Reform
Act in the absence of the completion of a waiver of ex post facto provisions.




                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




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