              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            NOVEMBER 1997 SESSION
                                                               FILED
STATE OF TENNESSEE,             *      C.C.A. # 02C01-9611-CR-00436

               Appellee,        *      SHELBY COUNTY
                                                                January 12, 1998
VS.                             *      Hon. Joseph B. Dailey , Judge

JOHN W. THOMAS,                 *      (Motor Vehicle Habitual Offense)
                                                               Cecil Crowson, Jr.
               Appellant.       *
                                                               Appellate C ourt Clerk




For Appellant:                         For Appellee:

Walker Gwinn                           John Knox Walkup
Assistant Public Defender              Attorney General and Reporter
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103                      Kenneth W. Rucker
(on appeal)                            Assistant Attorney General
                                       Criminal Justice Division
J.T. Harris                            450 James Robertson Parkway
Assistant Public Defender              Nashville, TN 37243-0493
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103                      Terrell L. Harris
(at sentencing hearing)                Assistant District Attorney General
                                       Criminal Justice Complex
Of Counsel:                            201 Poplar Avenue, Third Floor
                                       Memphis, TN 38103
A.C. Wharton, Jr.
Shelby County Public Defender




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              The defendant, John W. Thomas, pled guilty to two separate violations

of the order declaring him a motor vehicle habitual offender. The trial court imposed

concurrent, Range III sentences of five years for each of the two Class E felonies;

the workhouse sentence is to be served in the Shelby County Corrections Center.



              In this appeal of right, the defendant complains that the trial court

should have granted placement in a Community Corrections program. We find no

error and affirm the judgment of the trial court.



              On May 8, 1995, the defendant was barred from operating his

automobile under the provisions of the Motor Vehicle Habitual Offenders Act. See

Tenn. Code Ann. § 55-10-616. W hile the order prohibiting operation of the vehicle

was in effect, the defendant continued to drive. Indicted for incidents occurring on

July 13 and July 25, 1995, the defendant waived his right to a trial by jury and

entered pleas of guilt on each charge.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at


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the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-

102(6). With certain statutory exceptions, none of which apply here, probation must

be automatically considered by the trial court if the sentence imposed is eight years

or less. Tenn. Code Ann. § 40-35-303(a), (b).



              The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103. The Community Corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets

the minimum requirements of the Community Corrections Act of 1985, however,

does not mean that he is entitled to be sentenced under the act as a matter of law

or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following

offenders are eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as

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             provided in title 39, chapter 2 [repealed], parts 1-3 and
             5-7 or title 39, chapter 13, parts 1-5;

             (3) Persons who are convicted of nonviolent felony
             offenses;

             (4) Persons who are convicted of felony offenses in
             which the use or possession of a weapon was not
             involved;

             (5) Persons who do not demonstrate a present or past
             pattern of behavior indicating violence;

             (6) Persons who do not demonstrate a pattern of
             committing violent offenses; and

             (7) Persons who are sentenced to incarceration or on
             escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



             Here, the defendant meets the threshold qualifications for both

probation and Community Corrections. He contends that the trial court failed to set

forth specific findings of fact in denying an alternative sentence. The state

concedes that the rulings were less than adequate. The 1989 Act does provide that

the record of the sentencing hearing "shall include specific findings of fact upon

which application of the sentencing principles was based." Tenn. Code Ann. § 40-

35-209(c). While we acknowledge that the trial judge should comply with the

provisions of § 40-35-209(c), we are nonetheless able to conclude from our de novo

review that the record is adequate to support the denial of an alternative sentence

under the Community Corrections Act.



             The defendant, thirty-three years of age, is single and resides in

Memphis with his girlfriend, Deardra Barry, and her two children. He provides some

support. Described as a valuable employee, he is employed by Jones Brothers

Tree and Landscape Company where, except for a five-month period, he has been

employed since May 27, 1994. The defendant acknowledges a history of substance

                                           4
abuse, including cocaine usage during the 1980's and an alcohol addiction for the

last several years. At the time of the sentencing hearing, he attended a school for

alcoholics. From all appearances, neither of the violations of the order prohibiting

driving involved the use of alcohol. The defendant acknowledges an "extensive

prior criminal record" over the last ten years, much of which is alcohol or driving

related. His other offenses, however, include selling a controlled substance, petit

larceny, assault and battery, attempt to commit a felony, robbery, burglary, and

inhaling toxic vapors. The trial court denied the petition based upon the defendant's

prior criminal history. The trial judge was particularly distressed that the defendant

had continued to drive after his arrest on the first charge.



              The defendant has established himself as a valuable, dependable

employee. The record demonstrates that he has undertaken some treatment for his

addiction to alcohol. While serious violations of a court order, the current offenses

are of a non-violent nature. He is supportive of his girlfriend and her children. All of

these things are favorable indicators for a placement in a Community Corrections

program. On the other hand, the defendant's prior criminal history cannot be

described as anything other than extensive. His past includes both felonies and

misdemeanors and several instances of incarceration. Predicate offenses were

required before the defendant qualified as a motor vehicle habitual offender. W ithin

a period of two weeks, the defendant was discovered violating a court order

prohibiting the operation of an automobile on two separate occasions.



              A sentence of confinement is often necessary to protect society by

restraining the defendant who has a long history of criminal activity or is necessary

to avoid depreciating the seriousness of the offenses. Tenn. Code Ann. § 40-35-

103(1)(A), (B). Corrective measures less restrictive than incarceration have not


                                            5
been successful for the defendant. Tenn. Code Ann. § 40-35-103(1)(C). Because

the defendant pled guilty as a Range III offender, he is not entitled to the statutory

presumption that he is a favorable candidate for alternative sentencing. State v.

Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); Tenn. Code Ann. § 40-35-

102(6). Nonetheless, the defendant has demonstrated some potential for

rehabilitation and treatment; the trial court has left open the possibility of some form

of alternative sentence by denying the petition for Community Corrections "at least

at this point." While the defendant has made a compelling argument that he should

qualify for the program, "it is not the policy or purpose of this court to place trial

judges in a judicial [strait jacket on matters of sentencing]." Ashby, 823 S.W.2d at

171. Sentencing must require an individualized, case-by-case approach. State v.

Moss, 727 S.W.2d 229, 235 (Tenn. 1986). That necessarily embodies the exercise

of discretion at the trial court level. See State v. Fletcher, 805 S.W.2d 785 (Tenn.

Crim. App. 1991). Although a reasonably close issue, the better alternative, in our

view, is to defer to the determination of the trial court. The record supports the

conclusion reached.



              Accordingly, the judgment is affirmed.



                                            ________________________________
                                            Gary R. Wade, Judge

CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Joe G. Riley, Judge



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