         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 20, 2001

                STATE OF TENNESSEE v. JOHN CALVIN SMITH

                 Direct Appeal from the Criminal Court for Hamilton County
                     Nos. 229720 and 229866   Douglas A. Meyer, Judge



                                  No. E2000-01109-CCA-R3-CD
                                         April 18, 2001

The defendant pled guilty to two counts of felonious possession of a weapon with an agreed sentence
of two consecutive two-year terms. In this appeal, the defendant challenges the trial court's denial
of alternative sentencing. Upon review of the record, we affirm the trial court’s denial of alternative
sentencing.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E. GLENN,
JJ., joined.

Johnny D. Houston, Jr., Chattanooga, Tennessee, for the appellant, John Calvin Smith.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
William H. Cox III, District Attorney General; and Rodney C. Strong, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant pled guilty to two counts of felonious possession of a weapon for an agreed
sentence of two consecutive two-year terms. The defendant challenges the trial court's denial of
alternative sentencing. We affirm the trial court.


                                               FACTS

       The defendant was arrested on December 11, 1998, for possession of a weapon by a felon.
While on bond for that offense, the defendant was again arrested on December 17, 1998, for
felonious possession of a weapon. He pled guilty as a Range II multiple offender to both counts of
felonious possession of a weapon, Class E felonies, for an agreed effective sentence of four years
with the trial court to determine whether alternative sentencing should be granted.

         The defendant testified at his sentencing hearing that he was a 65-year-old, disabled veteran.
He further stated that his physical problems included numerous hip replacements, cirrhosis of the
liver, glaucoma, and ulcers. Additionally, the defendant stated that he was a victim of a robbery in
1997 and almost died from a gunshot wound. He further stated that two subsequent robbery attempts
occurred since the 1997 incident. He explained that he possessed the firearms because he needed
protection.

        The defendant testified that he ran a “good time house” but ceased its operation subsequent
to the second charge in this case. We surmise from the pre-sentence report that this was an illicit
drinking and gambling establishment run out of the defendant’s residence, and the defendant did not
possess a liquor, beer or business permit. The defendant conceded he knew it was illegal to run such
an establishment and deliberately broke the law. Although the defendant was cited numerous times
in 1995 for liquor violations and for running a “disorderly house,” he was unable to remember if the
city judge warned him about “running a good time house.”

       The defendant’s prior criminal record consists of nine misdemeanor convictions, two
convictions for food stamp fraud, and one conviction for second degree murder. The defendant
admitted that he was on probation for food stamp fraud when he was convicted of second degree
murder in 1984. He further admitted that he knew it was illegal for him to possess firearms, but he
consciously chose to break the law.

       The trial judge found that the defendant deliberately engaged in illegal activities and was a
danger to society. Thus, the trial court denied the motion for alternative sentencing. The defendant
was sentenced to serve his effective four-year sentence in the custody of the Department of
Correction.


              TRIAL COURT'S DENIAL OF ALTERNATIVE SENTENCING

         The defendant challenges the trial court's denial of alternative sentencing. We conclude that
the trial court properly sentenced the defendant.

A. Standard of Review

        This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).


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        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. 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). As a Range II multiple
offender, the defendant is not presumed to be a favorable candidate for alternative sentencing.

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also Ashby, 823 S.W.2d at 169.

B. Analysis

        The trial court found that confinement was necessary “for the safety of the community.”
Although the trial court did not use the exact terminology of the statute, we conclude the trial court
found that confinement was “necessary to protect society by restraining a defendant who has a long
history of criminal conduct.” Tenn. Code Ann. § 40-35-103(1)(A). Additionally, the trial court
properly considered the defendant’s testimony at the sentencing hearing concerning his advanced age
and poor health. The court, however, placed little weight on the testimony finding that the
defendant’s health status would not prevent him from using his weapons to kill.

         We further note that “measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-103(1)(C). The
defendant’s pre-sentence report reveals that the defendant has been convicted of nine misdemeanors,
some of which involved alternative sentencing. The second degree murder was committed while he
was on probation for felony food stamp violations. Furthermore, the defendant’s second count of
felonious possession of a weapon occurred while he was on bond approximately one week from his
arrest for the first count. Accordingly, we conclude that rehabilitation of the defendant is extremely
unlikely. See Tenn. Code Ann. § 40-35-103(5). We can only conclude the trial court did not err in
denying alternative sentencing.

       The judgment of the trial court is affirmed.



                                               ___________________________________
                                               JOE G. RILEY, JUDGE




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