            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1999
                                                                 FILED
                                                                       May 5, 1999
STATE OF TENNESSEE,              )
                                                            Cecil Crowson, Jr.
                                 )   No. 02C01-9810-CC-00325
                                                          Appellate Court Clerk
      Appellee                   )
                                 )   HARDIN COUNTY
vs.                              )
                                 )   Hon. C. Creed McGinley, Judge
CHRISTOPHER WAYNE                )
SNODGRASS,                       )   (Motor Vehicle Habitual Offender)
                                 )
      Appellant                  )



For the Appellant:                   For the Appellee:

Guy T. Wilkinson                     Paul G. Summers
District Public Defender             Attorney General and Reporter

Richard W. DeBerry                   Patricia C. Kussmann
Asst. District Public Defender       Assistant Attorney General
117 Forrest Avenue North             Criminal Justice Division
Camden, TN 38320                     425 Fifth Avenue North
                                     2d Floor, Cordell Hull Building
                                     Nashville, TN 37243-0493


                                     G. Robert Radford
                                     District Attorney General

                                     John W. Overton, Jr.
                                     Asst. District Attorney General
                                     P. O. Box 484
                                     Jackson TN 38372




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                              OPINION



        The appellant, Christopher Wayne Snodgrass, pled guilty to violation of the

Motor Vehicle Habitual Offender's Act, a class E felony. The trial court imposed a

sentence of eighteen months confinement in the Department of Correction.1 On

appeal, the appellant argues that the trial court erred by denying a community

corrections sentence.



                                         BACKGROUND



        The appellant was declared a motor vehicle habitual offender by order of the

Hardin County Circuit Court on May 15, 1991. In 1994, the appellant was convicted

of violating the Motor Vehicle Habitual Offender's Act and received a one year

sentence to the Department of Correction. Following his release from confinement,

he received a gunshot wound to the head resulting in paralysis to his arm. The

appellant moved to Florida in early 1995 and continued to reside in that state until

March of 1998. Due to the gunshot wound, he was unable to work so he ". . . just

kind of piddled around." While in Florida the appellant applied for and was issued a

driver's license. In March of 1998, the appellant returned to the state of Tennessee.

He related that he was unaware that his Florida driver's license was                  ". . . no good

in Tennessee until [he] got pulled over . . . and . . . carried . . . to jail." On June 1,

1998, a state trooper stopped the appellant for driving with expired tags on his

vehicle. After discovering that the appellant was driving in violation of the court's

order of May 15, 1991, the appellant was again charged as a motor vehicle habitual

offender.




        1
         The negotiated plea agreement provided a sentence recommendation of eighteen
mon ths. The man ner of se rvice of the senten ce was subm itted to the trial co urt for its
determination.

                                                 2
       The presentence report revealed that the appellant is thirty-four years old and

dropped out of school in the ninth grade. Currently, he is unemployed and receiving

a monthly income based upon his disability. The presentence report indicates three

prior convictions for driving under the influence and two convictions for driving on a

revoked license all occurring in 1989 and 1990. The appellant testified that he

stopped drinking four years ago.



       The trial court denied community corrections and imposed a full term of

incarceration for the appellant. As grounds for the denial, the trial court observed,

       This is not the first time he’s been convicted of this particular crime, so
       ignorance really is no excuse.
               The prior record consists of driving offenses, including the prior
       felony conviction of violation of the habitual motor vehicle offender
       statute. And on the record in front of the Court, the Court finds that
       that weighs against the presumption for the eligibility for alternative
       sentencing.
               Having been through this entire situation before as he was in
       1994, the Court finds that it’s inexcusable to go out and intentionally
       violate the same law again. Therefore, a prior felony record as well as
       prior driving offenses, the Court finds he’s not eligible for alternative
       sentencing.

The appellant now seeks review of this sentence.



       The appellant’s sole challenge on appeal is the denial of a community

corrections sentence. Review by this court of the manner of service of a sentence is

de novo with a presumption that the determination made by the trial court is correct.

Tenn. Code Ann. § 40-35-401(d) (1997). This presumption only applies if the record

demonstrates that the trial court properly considered the relevant sentencing

principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the case before

us, the record makes such a showing. Accordingly, we apply the presumption.



       Initially, we must determine whether the appellant is a suitable candidate for

alternative sentencing. As the appellant was convicted as a Range I standard

offender of a Class E felony, he is entitled to the presumption of alternative

sentencing absent evidence to the contrary. Tenn. Code Ann. § 40-35-102(5), (6)

                                          3
(1997). However, this presumption may be rebutted by “evidence to the contrary.”

Tenn. Code Ann. § 40-35-102(6); see also State v. Bingham, 910 S.W.2d 448, 454

(Tenn. Crim. App. 1995). Guidance as to what constitutes evidence to the contrary

may be found in Tenn. Code Ann. § 40-35-103(1) (A-C). If it is shown that the

appellant has a long history of criminal conduct, that the appellant has not been

rehabilitated with less restrictive methods, or that confinement is necessary to avoid

depreciating the seriousness of the offense or to provide an effective deterrence to

others, alternative sentences may be denied. Id. See also Bingham, 910 S.W.2d at

454 (citing Ashby, 823 S.W.2d at 169). Finally, the defendant's potential or lack of

potential for rehabilitation should be considered in determining whether he should

be granted an alternative sentence. Tenn. Code Ann. § 40-35-103(5). The

appellant contends that he has demonstrated his potential for rehabilitation by taking

the required classes to receive a driver's license in Florida.



       In the instant case, the trial court found that the presumption for an

alternative sentence was rebutted by the appellant’s prior record of driving offenses.

We agree. The record demonstrates that the appellant has one prior conviction for

this same offense and five misdemeanor driving offenses. Measures less restrictive

than confinement have frequently or recently been applied unsuccessfully to the

defendant. Tenn. Code Ann. § 40-35-103(1)(C). Moreover, this appellant has

shown blatant disregard for the laws of this State by continuing to drive his vehicle

after loss of his driving privilege. We conclude that the record contains more than

sufficient “evidence to the contrary” to rebut the presumption favoring the alternative

sentencing option of community corrections.



       The judgment of the trial court is affirmed.




                                          4
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




_______________________________________
JOSEPH M. TIPTON, Judge



_______________________________________
L. T. LAFFERTY, Senior Judge.




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