        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

              SEPTEMBE R SESSION, 1999
                                                                   FILED
                                                                 December 6, 1999
STATE OF TENNESSEE,             )   C.C.A. NO. E1998-
                                                                 Cecil Crowson, Jr.
00364-CCA-R3-CD                                                 Appellate Court Clerk
                                )
      Appe llant,               )
                                )
                                )   SULLIVAN COUNTY
VS.                             )
                                )   HON. R. JERRY BECK
RONALD REECE CROSS,             )   JUDGE
                                )
      Appellee.                 )   (Direct Appeal - Sentencing)




FOR THE APPELLEE:                   FOR THE APPELLANT:

TERRY JORDAN                        PAUL G. SUMMERS
Office of the Public Defender       Attorney General & Reporter
P. O. Box 839
Blountville, TN 37617               TODD R. KELLEY
                                    Assistant Attorney General
GERALD L. GULLEY, JR.               425 Fifth Avenu e North
Contract Appellate Defender         Nashville, TN 37243-0493
P. O. Box 1708
Knoxville, TN 37901-1708            GREELEY W ELLS
                                    District Attorney General

                                    JOSE PH E UGE NE P ERR IN
                                    Assistant District Attorney
                                    Main Street
                                    Springfield, TN 37172



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION




      On July 21, 19 98, Ro nald Re ece Cr oss (the “d efenda nt”) pled gu ilty to the

following charges arising out of a single incide nt: violatin g an h abitua l traffic

offender order, evading arrest, driving under the influen ce of alco hol (eighth

offense), running a stop sign, reckless driving, and violation of registration.

Following a sentencing hearing on the above charges, the trial court denied

alternative sentencing for the defendant, and instead ordered the defendant to

serve an effective ten (10) year, eleven (11) month, and twenty-nine (29) day

senten ce. The issues o n appe al are:

      (1) whether the trial court erred in denying alternative sentencing to the

      defendant, and

      (2) whether the trial court erred in ordering the defendan t to serve

      consecutive sentences.

      Because we find that the trial court sentenced the defenda nt appropriately,

we affirm the judgm ent of the tria l court.



                      FACTUAL BACKGROUND
      After the defen dant pled guilty to the above charges, the trial court held a

sentencing hearing. First, the defendant’s sister testified that, in her opinion, the

defendant had a “good heart,” but that he was an alcoholic. She also testified

that most of his extensive criminal record was a result of his drinking, and that

she would support her brother in any way possible. The state then

offered proof, in the form of several certified copies of convictions, that the

defendant was a Ra nge III, Persistent O ffender for sentencing purposes. The

defendant agreed.




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               The state then offered evidence that the sentence should be enhanced

        because (1) the defendant had five prior felony convictions,1 (2) the defendant

        had a histo ry of un willingness to comply with the conditions of a sentence

        involving release in the community, because in this case the defendant was

        serving a     community corrections sentence when he committed the instant

        offenses,2 and (3) the defendant committed a felony wh ile on com munity

        release.3 The defendant agreed that those enhancing factors applied. The

        defendant argued, however, that because he was an alcoholic and had family

        suppo rt, his sentence should be mitigated pursuant to Tenn Code Ann. § 40-35-

        113(13), the catch-all provision for mitigating factors. Th e trial court agreed and

        considered the defendant’s alcoholism as a mitigating factor in sentencing.

               The state then argued that the defendant’s sentences should be served

        consecu tively, because (1) the defendant had an extensive criminal record,4 and

        (2) the defendant was on probation when he committed the offenses in this case.5

        The d efense did not ob ject.

                Consequently, the trial court fou nd the d efenda nt was a Rang e III,

        Persistent Offender. Th e court denied alternative sentencing for the defen dant,

        and instead sentenced the defendant to five (5) years incarceration for violating

        an habitual traffic offender order, five (5) years for felony evading arrest, and

        eleven (11) months and twenty-nine (29) days for DUI, eighth offen se. The co urt

        ordered those sentences served consecutively. The court also sentenced the

        defendant to six (6) months for reckless driving, thirty (30) days for running a stop

        sign, and thirty (30) days for violating registration. The latter three (3) sentences

        were ordere d to be served conc urren tly to the effective ten (10) year, eleven (11)

        month and twenty-nine (29) day sentence arising out of the first three charges.

1
    Tenn. Code Ann. § 40-35-114(1).

2
    Tenn. Code Ann. § 40-35-114(8).

3
    Tenn. Code Ann. § 40-35-114(13)(E) .

4
    Tenn. Code Ann. § 40-35-115(2).

5
    Tenn. Code A nn. § 40-35-115(6).

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                        STANDARD OF REVIEW
       When an accused challenges the length, range or manner of service of a

sentence, this court has a duty to conduct a de novo review of th e sente nce with

the presu mptio n that the determ inations m ade by th e trial court a re correc t.

Tenn. Code Ann. § 4 0-35-40 1(d). This presumption is conditioned upon an

affirmative indication in the record that the trial court cons idered all relevant fac ts

and circums tances . State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As the

state conce des in its brief, the record in this case does not affirmatively in dicate

full compliance with the statutory principles of sentencing, and the presumption

of correctness cannot be applied. Thus, we must review the sentence de novo.

       When conducting a de novo review of a sentence, this court must consider

the following: (a) the evidence, if any, received at trial and sentencing hearing;

(b) the pres entenc e report; (c ) the princip les of sen tencing a nd argu ments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating and/or enhancement factors; (f) any

statemen t made by the defendan t regarding sen tencing; and (g )

the potential or lack of potential for rehab ilitation or treatm ent. State v. Thomas,

755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102,

-103, -210.



                   ALTERNATIVE SENTENCING
       The defendant contends that the trial court erred by s entenc ing him to

incarceration. He claims tha t the trial court should ha ve sentence d him to serve

his sentence in the Community Corrections Program instead. We disagree. The

Com munity Corrections Act allows certain eligible offende rs to pa rticipate in

community-based alternatives to incarceration. Tenn. Code Ann. § 40-36-103.

Howeve r, a defendant m ust first be a suitable can didate for alternative



                                           -4-
    sentencing.        In this ca se, the defen dant w as no t suitab le for alternative

    senten cing. Te nn. Co de Ann . § 40-35 -102(6) p rovides:

            A defendant who does not fall within the parameters of
            subdivision (5) and who is an especially mitigated or standard
            offender convicted on a Class C, D, or E felony is p resum ed to
            be a favorable candidate for alternative sentencing in the
            absen ce of evide nce to the contrary.

    (Emph asis added ).

    The defendant was sentenced as a Range III, Persistent Offender. Thus, he

    is not presumed to be a favorable candidate for alternative sentencing.

    Furtherm ore, Te nn. Co de Ann . § 40-35 -103 pro vides:

            (1) Sentences involving confinement should be based on the
            following considerations:
                   (A) Confinement is necessary to protect society by
                   restraining a defendant who has a long history of criminal
                   condu ct;
                   (B) Confinement is necessary to avoid depreciating the
                   seriousness of the offens e or co nfinem ent is p articula rly
                   suited to provide an effective deterren ce to othe rs likely to
                   comm it similar offenses; or
                   (C) Measures less restrictive than confinement have
                   freque ntly or rece ntly bee n app lied un succ essfu lly to the
                   defend ant.

    In this case, the defendant conceded in his brief that he “mee ts the statutory

    presumption that confin emen t is approp riate.” W e agree . The trial court

    specifically held that confinem ent was neces sary to protect society from the

    defend ant. 6 This finding was based on the defendant’s extensive record of

    driving under the influence and violating habitual traffic offender orders. The

    trial court could have also found that measures less restrictive than

    confinement have been tried and failed . Indeed, the defendant committed the

    offenses that gave rise to the instant charges while he was serving a

    Com munity Corrections sentence. Thus, alternative sentencing is clear ly

    inappro priate for this defend ant. This issue ha s no m erit.



                          CONSECUTIVE SENTENCES

6

    At the sentencing hearing, the trial judge stated “I’m afraid you’re going to get out and run over
    som ebody if you ju st keep it up.”

                                                     -5-
       The defendant also claims that the trial court erred in ordering h im to

serve consecutive sentences.          The trial court specifically found that the

defendant had an extensive crim inal record pursua nt to Ten n. Cod e Ann. §

40-35-115(b)(2) and that the defendant was on probation pursuant to Tenn.

Code Ann. § 40-3 5-115(b)(6).       The trial court found that the defendant was

on probation, for purposes of consecutive sentencing, because the defendant

was serving a community corrections sentence when he committed the

offenses in this case . Tenn. C ode An n. § 40-3 5-115(b )(6) provide s: “[t]he

court may ord er sente nces to ru n cons ecutively if the court finds by a

preponderance of the evidence that . . . [t]he defendant is sentenced for an

offense comm itted while o n proba tion.” Although “consecutive sentencing for

persons who commit offenses while on community corrections seems just as

approp riate as consecutive sentencing for persons who com mit offenses while

on probation[,]” State v. Pettus, 986 S.W .2d 540, 544 n.9 (Tenn. 1999), the

Supreme Cour t recen tly held that “the legislature did not intend a comm unity

corrections sentence and a probation sentence to be equivalents for purposes

of consecutive sentencing under Tenn. Code Ann. § 40-35-11 5(b)(6).” Id. at

544.    Therefore, in this case the trial court erred when it found that the

defendant was on probation at the time he comm itted the offenses.

       The trial court was c orrect , howe ver, in determining that the defendant

had an extensive criminal record. Tenn. Code Ann. § 40-35-115(b)(2) states:

“[t]he court may order sentence s to run conse cutively if the court finds by a

preponderance of the evidence that . . . [t]he defendant is an offender whose

record of crim inal ac tivity is exte nsive.” The tr ial cou rt spec ifically found five

prior felony convictions for the purposes of determining that the defendant

was a persistent offender. Furthermore, the presentence report contains a

record of numerous other convictions. The defendant’s record was c learly

extensive within the meaning of the statute. See Powe rs v. State 942 S.W.2d

551, 558 (Tenn. Crim. App. 1996)(holding four prior convictions supported trial

court’s finding the defendant had an extensive criminal record under the

                                          -6-
statute); see also State v. Chrisman 885 S.W.2d 834, 839 (Tenn. Crim. App.

1994)(finding four prior felony convictions and numerous traffic convictions

suppo rted trial cou rt’s finding of a n extens ive crimina l record).

       The defendant also contends that the trial court e rred by refu sing to

consider the requirements of State v. Wilkerson, 905 S.W.2d 933 (Tenn.

1995). In Wilkers on, the Supreme Court found that, in order to sentence a

defendant to consecutive sentences because he was a “dangerous offender”

under Tenn . Code Ann. § 40-35-115(b)(4), a trial court must find (1) the

sentences were nece ssary to protect the p ublic from further misconduct by the

defendant and (2) the terms of the sentence were reasonably rela ted to the

severity of the offen ses. Id. at 938. Those cons ideratio ns, ho weve r, are on ly

manda tory when the trial court imposes consecutive sentences on “dangerous

offende rs.” State v. David Keith Lane, No. 03-S-01-98020CC00013 (Tenn.

Sept. 27, 199 9).     In this case, the trial court sentenced the defendant

cons ecutive ly because he had an extensive criminal re cord; thu s, Wilkerson

does n ot apply. T his issue has no merit.

Accordingly, the judgment of the trial court is AFFIRMED.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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