            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                            OCTOBER 1998 SESSION



STATE OF TENNESSEE,            *    C.C.A. # 03C01-9710-CC-00446
                                                      February 17, 1999
             Appellee,         *    BLOUNT COUNTY

VS.                            *    Hon. D. Kelly Thomas, Jr., Judge
                                                       Cecil Crowson, Jr.
MARTY THATCHER,                *    (Aggravated Assault)
                                                         Appellate C ourt Clerk

             Appellant.        *




For Appellant:                      For Appellee:

Gregory D. Smith                    John Knox Walkup
Contract Appellate Defender         Attorney General & Reporter
One Public Square, Ste. 321
Clarksville, TN 37040               Clinton J. Morgan
                                    Assistant Attorney General
Shawn Graham                        Criminal Justice Division
Assistant Public Defender           2d Floor, Cordell Hull Building
419 High Street                     425 Fifth Avenue North
Maryville, TN 37804                 Nashville, TN 37243-0493

                                    Tammy Harrington
                                    Assistant District Attorney General
                                    363 Court Street
                                    Maryville, TN 37804


OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

               The defendant, Marty Thatcher, was convicted in a bench trial of

aggravated assault. The trial court imposed a Range I, four-year sentence,

suspended after service of seven months in the county jail, and declared the

defendant eligible for work release. The issues on appeal are whether the trial court

erred by ordering the defendant to serve a portion of his term in custody or erred by

denying community corrections. We find no error and affirm the judgment of the trial

court.



               On January 1, 1997, the victim, Fred Carson, was outside his

residence visiting with a friend when the defendant appeared carrying a shotgun.

An argument ensued and the defendant aimed his shotgun at the top of the victim's

foot, placed his hand on the trigger, and threatened to shoot off the foot of the

victim.



               At the sentencing hearing, the defendant, thirty-nine years old and

employed as a concrete finisher, testified that he had experienced a lengthy term of

unemployment and acknowledged having a serious drinking problem. He stated

that he began drinking when he was nine years old and typically consumed a

twelve-pack per day. While confirming that he had never received any type of

treatment, the defendant conceded that he had forty-six prior convictions for public

intoxication and one prior conviction for disorderly conduct. The defendant had

served thirty days in the Blount County jail for one of the public intoxication

convictions.



               In imposing the sentence, the trial judge stated as follows:

               A four-year sentence is imposed. ... You will be
               sentenced to split confinement of seven months in the

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              jail, and the balance on intensive probation. And that will
              begin with inpatient drug and alcohol treatment, and then
              outpatient treatment will be a condition of your probation
              after you complete the inpatient program. ... You will be
              eligible for work release while you're in jail. ... I think
              without a felony history that he is an appropriate person
              for an alternative sentence. ... But I do think that the
              seriousness of this offense would be greatly depreciated
              if he did not serve a pretty significant time in the jail.
              Guns and alcohol [are] not a good mixture. ... His
              chances of rehabilitation ... are very poor, if he doesn't
              get alcohol treatment.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

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

Ann. § 40-35-401(d). 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." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence received at the trial

and sentencing hearing; (2) the presentence report; (3) the principles of sentencing

and the arguments of counsel relative to sentencing alternatives; (4) the nature and

characteristics of the offense; (5) any mitigating or enhancing factors; (6) any

statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's application for

probation are the circumstances of the offense, the defendant's criminal record,

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social history and present condition, and the deterrent effect upon and best interest

of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. §

40-35-102(6). With certain statutory exceptions, none of which apply here,

probation must be automatically considered by the trial court if the sentence

imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b). The ultimate

burden of establishing suitability for probation, however, is still upon the defendant.

Tenn. Code Ann. § 40-35-303(b).



              Alternative sentencing issues must be determined by the facts and

circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.

1986). In the words of the late Judge Joe B. Jones, "[e]ach case must be bottomed

upon its own facts." State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App 1987).



              In our view, the defendant's prior record suggests that a term of

incarceration is entirely appropriate. While his prior criminal behavior appears to be

the product of alcoholism, the defendant has never sought treatment for his

condition. That indicates a lack of amenability to rehabilitation. Moreover, the

mixing of alcohol and weapons is a particularly dangerous combination. Grear, 568

S.W.2d at 286. The trial court carefully crafted a sentence that will provide the

defendant the opportunity to receive treatment for his alcoholism while allowing him

to continue his employment.



              The defendant also complains that the trial court did not appropriately


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consider a community corrections sentence. The purpose of the Community

Corrections Act of 1985 was 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(a). A community corrections

sentence provides a desired degree of flexibility that may be beneficial to the

defendant yet serve legitimate societal purposes. State v. Griffith, 787 S.W.2d 340,

342 (Tenn. 1990). The following offenders are eligible:

             (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 2 [repealed], parts 1-3 and
             5-7 or 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) Persons who do not demonstrate a pattern of
             committing violent offenses; and

             (7) Persons who are sentenced to incarceration or on
             escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



             Because aggravated assault is a crime against a person, the

defendant is not eligible for community corrections; moreover, the offense also

involved the use of a weapon, another ground for disqualification. See Tenn. Code

Ann. § 40-36-106(a)(2), (4). Nor would the defendant qualify for relief under the

"special needs" provision which provides as follows:

             [O]ffenders not otherwise eligible under subsection (a),

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             and who would be usually considered unfit for probation
             due to histories of [chronic alcohol 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(b). While the defendant's alcoholism could arguably

be considered a "special need," no proof was presented at the sentencing hearing

that the defendant's problem is treatable in the community. The statute requires

some threshold showing of that fact before the trial court can consider the propriety

of a community corrections sentence.



             Accordingly, the judgment of the trial court is affirmed.



                                         __________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



______________________________
David H. Welles, Judge



________________________________
Thomas T. W oodall, Judge




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