         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs November 26, 2002

                STATE OF TENNESSEE v. DONALD E. BRYANT

                 Direct Appeal from the Circuit Court for Blount County
         Nos. C-12490-91, 12745, 12892, C-12953-54   D. Kelly Thomas, Jr., Judge



                                 No. E2002-00690-CCA-R3-CD
                                        March 10, 2003

The Appellant, Donald E. Bryant, entered guilty pleas to the offenses of evading arrest, class D
felony theft, misdemeanor theft, aggravated burglary, aggravated assault, and two violations of the
Motor Vehicle Habitual Offender Act (MVHO). Under the terms of the plea agreement, Bryant
received an effective twenty-year sentence as a range II multiple offender for these crimes. The plea
agreement provided that the manner of service of the sentences would be submitted to the trial court.
Following the sentencing hearing, the trial court ordered the sentences be served in the Department
of Correction. On appeal, Bryant argues that the trial court erred in failing to grant him a sentence
of community corrections. Finding this argument without merit, the judgment of the Blount County
Circuit Court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE , JJ., joined.

Raymond Mack Garner, District Public Defender; Shawn G. Graham Assistant Public Defender, for
the Appellant, Donald E. Bryant.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H.
Boucek, Assistant Attorney General; Michael L. Flynn, District Attorney General; and John Bobo,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        This case presents an ongoing history of criminal activity by the Appellant over a period of
eleven months. On October 18, 1999, the Appellant was arrested for two counts of aggravated
assault and one count of class A misdemeanor theft. The Appellant was ultimately convicted of
these offenses following a bench trial and received an effective twelve-year sentence. On January
26, 2000, while awaiting trial on these offenses, the Appellant was arrested for evading arrest and
violation of the MVHO Act. On February 8, 2000, the Appellant stole assorted construction tools
belonging to H & M Construction, which were valued at more than $1,000 but less than $10,000.
On March 7, 2000, the Appellant burglarized the habitation of Kent Strait. Two months later, on
May 21, 2000, the Appellant was again arrested for being an habitual motor vehicle offender, after
driving to the courthouse for an appearance on prior charges. On September 20, 2000, the Appellant
stole merchandise from Wal-mart, valued at less than $500. A Wal-mart employee, Paul Thompson,
attempted to stop the Appellant from exiting the store, when the Appellant pulled a knife on
Thompson and cut his hand.

        In June of 2000, a Blount County grand jury indicted the Appellant for the January 26th
offenses, evading arrest and being an habitual motor vehicle offender. In July of 2000, the Appellant
was indicted for the February 8th offense, class D felony theft, and the March 7th offense, aggravated
burglary. Finally, in December of 2000, the Appellant was indicted for the May 21st offense, being
an habitual motor vehicle offender, and the September 20th offenses, aggravated assault and class A
misdemeanor theft. On February 19, 2002, the Appellant pled guilty to the seven offenses and
received an agreed sentence of twenty years1 to be served consecutively to the 1999 twelve-year
sentence. The manner of service of the effective twenty-year sentence was to be determined by the
trial court. A sentencing hearing was held, and the trial court imposed a sentence of total
confinement. In denying alternative sentencing, the trial court noted as follows:

                  [F]irst of all, you have a history of criminal convictions and criminal behavior
         that is greater than the number of convictions required to establish you as a range-two
         offender. . . .

                 And several of these felonies were committed while you were on bail or other
         forms of release from other felonies. And you have a history of unwillingness to
         comply with the conditions of a sentence involving release into the community. All
         of those things are established by your record.

                The sentences involving confinement are to be reserved for persons who have
         lengthy criminal histories and show a disregard for the safety of others, who are
         dangerous offenders. And irrespective of your state of sobriety or state of mind at the
         time of these offenses, this offense down at Lowe’s that preceded these, and the



         1
          For the June indicted offenses, the Appellant received concurrent sentences of six months for the evading arrest
conviction and four years for being an habitual motor vehicle offender. For the July indicted offenses, the Appellant
received concurrent sentences of six years for the class D felony theft conviction and six years for the aggravated
burglary conviction. Regarding the December indicted offenses, the Appellant received concurrent sentences of eleven-
months and twenty-nine days for the class A misdemeanor theft conviction, four years for being an habitual motor veh icle
offender, and six years for the aggravated assault conviction. The June, July, and Decem ber indicted offenses were
ordered to run consecutively for an effective twenty-year sentence.

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       offenses at Walmart, show that in the state you were in at the time, that your actions
       were just dangerous.

              A sentence other than confinement would depreciate the seriousness of these
       offenses. . . .

              [D]uring the year preceding this last arrest, the only thing that you did, when
       you had the opportunity to be out, was to commit more serious criminal offenses. .
       ..

This appeal followed.

                                             ANALYSIS

        The Appellant contends that the trial court erred in finding him ineligible for placement in
a program of community corrections. When an accused challenges the length, range, or the manner
of service of a sentence, this court has a duty to 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) (1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is "conditioned
upon the affirmative showing in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances." Ashby, 823 S.W.2d at 169. When conducting a de novo
review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the
sentencing hearing; (b) the pre-sentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any
statutory mitigating or enhancement factors; (f) any statement that the Appellant made on his own
behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§
40-35-102, -103, -210 (1997); Ashby, 823 S.W.2d at 168. Furthermore, we emphasize that facts
relevant to sentencing must be established by a preponderance of the evidence and not beyond a
reasonable doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Poole, 945
S.W.2d 93, 96 (Tenn. 1997)).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that are adequately supported
by the record, then we may not modify the sentence even if we would have preferred a different
result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher, 805 S.W4.2d 785, 789
(Tenn. Crim. App. 1991). However, where the trial court fails to comply with the statutory
provisions of sentencing, appellate review is de novo without a presumption of correctness.

        A defendant “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.” Tenn. Code Ann. § 40-35-102(6) (1997). The Appellant was sentenced
as a range II multiple offender and, thus, was not entitled to the presumption of alternative


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sentencing. Moreover, the Appellant has a criminal history evincing a clear disregard for the laws
of society and a failure of past efforts at rehabilitation. See Tenn. Code Ann. § 40-35-103(1)(A), (C)
(1997).

        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." Tenn. Code Ann. § 40-36-103(1) (1997). The Appellant concedes that,
because he was convicted of a violent offense, he does not satisfy the minimum criteria for
placement on community corrections under the general provisions of Tennessee Code Annotated §
40-36-106(a) (Supp. 2002); nonetheless, he argues that he is eligible, under the provision of
Tennessee Code Annotated § 40-36-106(c), on the basis that his drug abuse is a "special need."
Tennessee Code Annotated § 40-36-106(c) provides:

       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.

Under subsection (c), if the Appellant is statutorily ineligible for probation, he is per se ineligible
for community corrections. State v. Kendrick, 10 S.W.3d 650, 655 (Tenn. Crim. App. 1999); State
v. Grisby, 957 S.W.2d 541, 546 (Tenn. Crim. App. 1997); State v. Boston, 938 S.W.2d 435, 438
(Tenn. Crim. App. 1996); State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989). An
offender is eligible for probation if he is sentenced to eight years or less and has not been convicted
of a few excluded offenses. Tenn. Code Ann. § 40-35-303(a) (Supp. 2002). Under the plea
agreement, the Appellant’s total sentence was twenty years; however, no individual sentence was
greater than six years and, therefore, the Appellant would be eligible for probation. See Tenn. Code
Ann. § 40-35-303 (1997), Sentencing Commission Comments. Accordingly, we must determine
whether the Appellant meets the other requirements of subsection (c).

       A determination that the Appellant is suitable for placement in the program also requires the
following findings of fact: (1) the offender has a history of chronic alcohol, drug abuse, or mental
health problems, (2) these factors were reasonably related to and contributed to the offender's
criminal conduct, (3) the identifiable special need (or needs) are treatable, and (4) the treatment of
the special need could be served best in the community rather than in a correctional institution.
Boston, 938 S.W.2d at 439. The proof adduced at the sentencing hearing established that the
Appellant has a long history of drug abuse. The only notable periods of sobriety have been while
the Appellant was incarcerated. While this drug abuse may have contributed to the Appellant’s
criminal conduct, the specific nature of the conduct was not reasonably related to his drug abuse.
For example, violence against the Wal-mart employee was not reasonably related to drug abuse.
Driving a motor vehicle to the courthouse for a court appearance is likewise not reasonably related
to drug abuse. We agree with the trial court that, given the Appellant’s criminal history and the



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increasing severity of his crimes, the Appellant’s drug problem would best be treated in a
correctional facility rather than allowing the Appellant to remain a danger to the community.

       The Appellant has not met his burden in this case. The Appellant has a long history of
criminal conduct, rendering confinement necessary to protect society from additional criminal
behavior by the Appellant. Furthermore, measures less restrictive than confinement, including
probation and community corrections, were repeatedly and unsuccessfully applied to the Appellant.
Accordingly, we conclude that the Appellant is unsuitable for community corrections on a “special
needs” basis.

                                        CONCLUSION

       For the above reasons, we conclude that the trial court’s decision denying the Appellant a
sentence of community corrections was proper. The judgment of the trial court is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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