         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 24, 2006

             STATE OF TENNESSEE v. MICHAEL STEPHEN COX

                     Appeal from the Criminal Court for Sullivan County
                            No. S49,710   R. Jerry Beck, Judge



                     No. E2005-02857-CCA-R3-CD - Filed April 16, 2007


Michael Stephen Cox, the defendant, appeals from a denial of his application for alternative
sentencing. The defendant entered a best interest guilty plea, pursuant to North Carolina v. Alford,
400 U.S. 25, 91 S. Ct. 160 (1970), to reckless aggravated assault (Class D felony) for a two-year
sentence, with the manner of service to be determined by the trial judge. After a hearing, alternative
sentencing was denied and the defendant was ordered to serve two years of confinement as a Range
I, standard offender. After review, we conclude that the denial of alternative sentencing was proper
and affirm the sentence.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and JAMES CURWOOD WITT , J., joined.

Stephen M. Wallace, District Public Defender, and Joseph H. Harrison, Assistant Public Defender,
for the appellant, Michael Stephen Cox.

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and B. Todd Martin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The reckless aggravated assault charge resulted from the defendant attacking an acquaintance
with a knife for refusing the defendant’s request for a beer. An agreed stipulation of facts was
recited prior to the entry of the defendant’s plea. The stipulation provided the following summary:
                 [T]he State’s proof would have been that on September 12, 2004, officers
        from the Kingsport Police Department responded to the Wellmont Emergency
        Department in reference to a subject being cut with a knife. Upon arrival, they spoke
        with the victim in this case, Paul Miller. Mr. Miller was intoxicated and the officer,
       however, was familiar enough with him to assess that he was . . . he hadn’t been that
       drunk.

              Mr. Miller relates that he was walking home from Food City with a friend,
       the Defendant here today, and Mr. Cox had asked for a beer that the victim had
       purchased. The victim denied him the beer and told Mr. Cox to get a job and buy his
       own beer. It was at that point that they became involved in an altercation, and Mr.
       Cox pulled a knife and tried to cut the victim. He did, in fact, cut him across the left
       hand, which required 19 stitches to close the wound.

                The victim in this case, Paul Miller, was uncooperative with law enforcement
       in their investigation. He would not give the name of the friend, but did indicate that
       if officers found out on their own, he would cooperate with law enforcement.

               After Mr. Miller was treated and released, officers responding to the scene
       observed evidence there and collected that. They then received a call of disturbance
       at 1526 Waverly Road, Apartment 2, which is where the Defendant was. When they
       knocked on the door, Mr. Cox came to the door with a knife, saying that he would
       do it again. He was ordered to drop the knife and step out. At that point, his mother
       came out and was indicating that the Defendant was bragging about stabbing Mr.
       Miller. He was placed under arrest, and a blue pocket knife with blood on it was
       taken from him. Those would have been the States’ [sic] facts.

        At his sentencing hearing on December 15, 2005, the defendant testified that he was fifty
years old and had not worked since 2001. He stated he had been homeless for almost three years but
had acquired living quarters since he was awarded disability status. The defendant’s highest
educational level was the ninth grade. He stated that he began drinking at nine years of age and
drank heavily from age fifteen. He stated that he had not consumed hard liquor since December of
2004, but he admitted to drinking beer on the previous day. In listing his health problems, he
claimed that he was bipolar and that he had active hepatitis, chronic obstructive pulmonary disease,
sleep apnea, and brain damage.

       The presentence report reflected a long history of misdemeanor convictions which extended
back to the defendant’s juvenile years. The adult convictions consisted of eleven public
intoxications, four resisting arrests, four disorderly conducts, criminal trespass, assault, possession
of a weapon with intent to go armed, and speeding. The defendant also admitted to convictions in
Florida for public intoxication and resisting arrest.

        A defendant who challenges his or her sentence has the burden of proving the sentence
imposed by the trial court is improper. T.C.A. § 40-35-401, Sentencing Commission Comments;
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). When a defendant appeals the length, range, or
manner of service of his or her sentence, it is this court’s duty to conduct a de novo review of the
record with a presumption that the trial court’s determinations are correct. T.C.A. § 40-35-401(d).


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The presumption of correctness 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.
Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and the trial court’s findings of fact are adequately supported by the
record, then we may not modify the sentence even if we had preferred a different result. State v.
Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        A defendant, at the time of this sentencing, was eligible for probation if the actual sentence
imposed was eight years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. See T.C.A. § 40-35-303(a) (2003). 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 should be considered a favorable candidate for alternative sentencing options
in the absence of evidence to the contrary. See T.C.A. § 40-35-102(6); see also State v. Fields, 40
S.W.3d 435, 440 (Tenn. 2001).

        Guidance as to what constitutes “evidence to the contrary” to rebut the presumption of
alternative sentencing is found in Tennessee Code Annotated section 40-35-103, which provides that
confinement may be ordered when:
        (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(1); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        The defendant must demonstrate that probation would serve the ends of justice and the best
interest of both the public and the defendant. State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim.
App. 2002).

        This defendant was eligible for alternative sentencing. He sought either probation or
sentencing through Community Corrections. Although the trial court considered the alternative of
a community corrections sentence, this defendant was ineligible due to his conviction for a violent
crime involving the use of a weapon. See T.C.A. § 40-36-106(a)(1)(C), (D). Thus, the defendant
did not meet the minimum criteria for placement in Community Corrections.

        The defendant sought service in the community due to his chronic alcohol abuse as an
alternative to incarceration pursuant to Tennessee Code Annotated section 40-36-106(c). The trial


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court considered the alternative but noted that the record reflected the defendant had been in
numerous programs previously and found that “[t]hey have not accomplished anything.” The trial
court stated that he saw no hope that Community Corrections could correct any of the defendant’s
problems. This finding is fully supported by the record.

        In considering an alternative sentence, the trial judge noted the continuous history of the
defendant’s offenses, most of which were associated with alcohol abuse. It was observed that both
the defendant’s social and work histories were poor. Although the defendant had often been placed
on probation, it had not produced a positive effect. The trial judge concluded by saying he saw
nothing positive to commend the defendant for alternative sentencing and required that he serve the
sentence in confinement.

        The record supports the trial judge’s order of confinement in this case. Although this was
the defendant’s first felony conviction, he has compiled an extensive record of misdemeanor
offenses. Many of these offenses involved probation or suspended sentences without positive
results. Past rehabilitative efforts have not been successful. The defendant has not met his burden
of demonstrating that probation would serve the ends of justice or the public and the defendant’s best
interests.

                                             Conclusion

        After review of the record and for the foregoing reasons, we affirm the sentence as imposed
by the trial court.




                                                       __________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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