        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                      NOVEMB ER SESSION, 1998       February 18, 1999

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9710-CC-00436
                           )
      Appellee,            )
                           )
                           )    BLOUNT COUNTY
VS.                        )
                           )    HON. D. KELLY THOMAS, JR.
JIMMY LEE NOAH,            )    JUDGE
                           )
      Appe llant.          )    (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF BLOUNT COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

MACK GARNER                     JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter

GERALD L. GULLEY, JR.           TODD R. KELLEY
P.O. Box 1708                   Assistant Attorney General
Knoxville, TN 37901-1708        425 Fifth Avenu e North
                                Nashville, TN 37243

                                MIKE FLYNN
                                District Attorney General

                                PHILIP MORTON
                                Assistant District Attorney General
                                363 Court Street
                                Maryville, TN 37804



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION

         The Defendant, Jimmy Lee Noah, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appellate P roced ure. H e was convic ted, up on his

pleas of guilty, of driving on a revoked license, reckless driving, reckless

endan germe nt, and felony evading arrest. 1 The agreed sentences for the two

Class E felonies were two years as a Range I standard offender. The agreed

sentences for the Class B misdem eanors we re six months . All sentences w ere

to be served concurrently. The manner of service of the sentences was left to the

discretion of the trial judge. The judge ordered that the felony sentences be

served in the Department of Correction, with the misde mean or jail senten ces to

be served concurrently. The Defendant appeals from the trial judge’s order that

the sentences be served in confinement. We affirm the judgment of the trial

court.



         When an accused challenges the length, range, or manner of service o f a

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

a presumption that the determin ations mad e by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).




         1
             Tenn. Code Ann. §§ 55-50-504; 55-10-205; 39-13-103; 39-16-603(b).

                                             -2-
      When conducting a de novo review of a senten ce, this Co urt must

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

the presentence report; (c) the principles of senten cing and argum ents as to

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

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

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863

(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



       A defen dant w ho “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). Our sentencing law also provides that “convicted

felons committing the most severe offenses, possessing criminal histories

evincing a clear disregard for the laws and morals of society, and evincing failure

of past e fforts at r ehab ilitation s hall be given first priority regarding sentencing

involving incarceration.” Id. § 40-35 -102(5). T hus, a de fendan t sentenc ed to

eight years or less who is not an offend er for w hom incarc eration is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offende rs who meet the

criteria are entitled to such relief; rather, it requires that sentencing issues be

determined by the facts and circumstances presen ted in eac h case . See State

v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss,

727 S.W .2d 229 , 235 (T enn. 19 86)).




                                          -3-
      Additionally, the principles of sentencing reflect that the se ntenc e sho uld

be no greater than that deserved for the offense committed and should be the

least severe me asure necessary to achieve the purposes for which the sentence

is imposed . Tenn. Co de Ann. § 4 0-35-103(3 )-(4). The cou rt should also consider

the potential for rehabilitation or treatment of the defendant in determining the

senten ce alterna tive. Id. § 40-35-10 3(5).



      About 1:30 one morning, a Blount County deputy sheriff observed a

vehicle, driven by th e Defe ndant, cross the center line a couple of times and

noted that the vehicle wa s not pro perly displa ying a licen se plate. T he dep uty

initiated a stop of the ve hicle b ut the d river refu sed to stop. A length y pursu it

followed, during which two other law enforcement vehicles eventually joined the

pursuit. At some point the D efenda nt stoppe d the veh icle and a ttempte d to flee

on foot. The officers were able to catch and tackle the Defendant, and the

charges which led to his guilty pleas followed.



      The presen tence re port reflects that at the time of sentencing the

Defendant was thirty-one years old, single, and employed as a concre te finisher.

He testified that h e com pleted the eleventh grade. The Defendant has a rather

lengthy history of criminal conduct spanning a ten-yea r period. His convictions

include possession of marijuana, two DUIs, three convictions for driving on a

revoked license, and tw o felon y habitu al traffic o ffende r convic tions in Georgia.

He had violated probation in Georgia and subsequently had served time in the

Geo rgia penitentiary. In addition, while he was out on bond awaiting disposition

of the charges in the case sub judice, he was aga in arrested for driving on a

revoked license and was convicted of that offense in the Blount County General

                                         -4-
Sessions Court. He was sentenced to ten days in jail and six months probation

for that offense.



      The Defe ndan t testified that on the m orning in question, when the o fficers

turned on their blue lights, “it scared me and I run.” He testified that he fled from

the officers because he was afraid of being shot or beaten. He never gave a

rational or reasonable explanation of why he was afraid of being shot or beaten

by the Blount County deputy sheriffs who pursued him. He admitted that at the

time the officers attempted to stop him, he had been drinking and smoking

marijuana. He admitted that he had been a regular user of ma rijuana on a d aily

basis for several years, but he stated he had recently quit.         A drug screen

administered in conjunction with the preparation of the presentenc e report was

negative. He testified that he stopped smoking marijuana at the time he was

arrested for the cha rges disc ussed herein.



      At the conclusion of the sentencing hearing, the trial judge stated that he

was denying any senten ce alte rnative to con finem ent be caus e of the Defe ndan t’s

lengthy criminal re cord, his decision to continue driving on a revoked license even

after being charged in these cases, the circumstances surrounding the offense,

and the De fenda nt’s len gthy his tory of m arijuan a use . The ju dge s pecific ally

found that the Defendant failed to demonstrate any potential for rehabilitation.



      In this appeal, the D efendant as ks this Court to reverse the judgment of the

trial court and remand this case for an alternative sentence such as split

confinement, work release, or full probation. We decline to do so. Trial judges

are traditionally vested with broad discretionary authority in sentencing matters.

                                         -5-
Based on the Defe ndan t’s leng thy crim inal rec ord for offens es sim ilar to these,

the failure of less restrictive measures and past attempts at rehabilitation, and the

Defe ndan t’s continued disre gard for the laws of this state, w e are un able to

conclude that the trial judge erred or abused his discretion by ordering that the

Defen dant’s se ntence s be serv ed in con fineme nt.



      The judgment of the trial court is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE




CONCUR:



___________________________________
JAMES CURWOOD WITT, JR., JUDGE


___________________________________
L.T. LAFFERTY, SENIOR JUDGE




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