             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE             FILED
                           JUNE 1997 SESSION           August 12, 1997

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 03C01-9608-CC-00321
             Appellee,           )
                                 )    BLOUNT COUNTY
VS.                              )
                                 )    HON. D. KELLY THOMAS, JR.,
STEVEN J. HAYNES,                )    JUDGE
                                 )
             Appellant.          )    (Sentencing)




FOR THE APPELLANT:                    FOR THE APPELLEE:


MACK GARNER                           JOHN KNOX WALKUP
District Public Defender              Attorney General & Reporter
419 High St.
Maryville, TN 37804                   MARVIN E. CLEMENTS, JR.
                                      Asst. Attorney General
                                      450 James Robertson Pkwy.
                                      Nashville, TN 37243-0493

                                      MIKE FLYNN
                                      District Attorney General

                                      PHILLIP MORTON
                                      Asst. District Attorney General
                                      Blount County Courthouse
                                      Maryville, TN 37804




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                              OPINION
              The defendant was declared a Motor Vehicle Habitual Offender in

September 1993. During a five month period from August 1995 to January 1996, the

defendant was charged with violating the Motor Vehicle Habitual Offenders Act along with

various other traffic related offenses. On February 14, 1996, he pled guilty to all charges.

After a hearing, he received an effective sentence of six years.



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

when it refused to place him on probation or in Community Corrections. After a review

of the record, we find no error and affirm the judgment of the court below.



              As noted above, the defendant pled guilty to numerous charges.

Specifically, he pled guilty to four counts of violating the Motor Vehicle Habitual Offenders

Act, two counts of driving on a revoked license, one count of failure to yield, one count

of evading arrest, and two counts of reckless endangerment. He received a one year

sentence for the Motor Vehicle Habitual Offender violation in case #9260; a one year

consecutive sentence for the Motor Vehicle Habitual Offender violation in case #9340;

a two year consecutive sentence for the Motor Vehicle Habitual Offender violation in case

#9335; and a two year consecutive sentence for the Motor Vehicle Habitual Offender

violation in case #9343. The sentences for the remaining convictions are concurrent to

case #9260. Thus, the defendant has an effective sentence of six years.



              At his sentencing hearing, the defendant testified that he had known that

he was not supposed to drive, and that he had not driven prior to August 1995. He

testified that on August 16, 1995, he had had to drive to where his nephew was residing

in order to tell the nephew that he needed a ride to work. The defendant’s wife usually

took him to work but she was unable to do so on this day because she was hospitalized.


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While the defendant was on his way to see his nephew, he was stopped by police officers

for having only one headlight.



             The defendant testified that after this occurred, he had continued to drive

because he thought that any punishment he would receive from the first offense would

run concurrently with any subsequent offenses. Consequently, the defendant again

drove his vehicle on October 21, 1995. The defendant testified that he had been taking

the vehicle to be repaired when he was stopped by police officers.



             Then on November 5, 1995, the defendant decided to drive to his mother’s

house for dinner. He testified that he had had to drive because his wife was away taking

care of a relative. While the defendant was on his way, police officers recognized him

and attempted to pull him over. The defendant, however, sped up in an effort to get away

from the officers. He was arrested the next day at his home.



             The final violation occurred on January 13, 1996. This time the defendant

had just picked up his vehicle from the repair shop and was returning home when he was

spotted by police officers. Again the defendant increased his speed in order to get away

from the officers. He was arrested later that evening at his home.



             The defendant admitted that while trying to elude the police he had

exceeded the speed limit. However, he denied forcing other vehicles off the road in order

to avoid arrest. The defendant also admitted that he had driven his vehicle about six

other times when he had not been stopped by police. He testified that important reasons

had led him to decide to drive.



             The defendant testified that at the time of the hearing he was employed as


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a heavy equipment operator with Earthworks, Inc. He further testified that he is married

and has three children under the age of eighteen. He also testified that he does not

abuse drugs or alcohol. His pre-sentence report indicates a history of criminal offenses

that are mainly motor vehicle related.



                  The defendant now appeals and argues that he should have been placed

on full probation or in Community Corrections.1 When a defendant complains of his or

her sentence, we must conduct a de novo review with a presumption of correctness.

T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the

appealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. This

presumption, however, “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).



                  T.C.A. § 40-35-103 sets out sentencing considerations which are guidelines

for determining whether or not a defendant should be incarcerated. These include the

need “to protect society by restraining a defendant who has a long history of criminal

conduct,” the need “to avoid depreciating the seriousness of the offense,” the

determination that “confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses,” or the determination that “measures less

restrictive than confinement have frequently or recently been applied unsuccessfully to

the defendant.” T.C.A. § 40-35-103(1).



                  In determining the specific sentence and the possible combination of



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          W e recognize that there has been some question as to whether a defendant convicted of
violating the M otor V ehicle Ha bitual O ffenders Act c an b e se nten ced to probation . W e ha ve chos en to
follow the concurring opinion in State v. Michael Richmond, No. 02C 01-9 410 -CR -002 17, S helby Cou nty
(Tenn. Crim. App. filed Sept. 13, 1995, at Jackson). Most cases also appear to follow this course. Thus,
our a nalysis add resses the appro priatenes s of d enying both prob ation a nd C om m unity Co rrections.

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sentencing alternatives, the court shall consider the following: (1) any evidence from the

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

and the arguments concerning sentencing alternatives, (4) the nature and characteristics

of the offense, (5) information offered by the State or the defendant concerning

enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the

defendant’s statements in his or her own behalf concerning sentencing. T.C.A.

§ 40-35-210(b). In addition, the legislature established certain sentencing principles

which include the following:

               (5) In recognition that state prison capacities and the funds to
               build and maintain them are limited, 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 efforts at rehabilitation
               shall be given first priority regarding sentencing involving
               incarceration; and

                (6) A defendant who does not fall within the parameters of
                subdivision (5) and 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.


T.C.A. § 40-35-102.



               After reviewing the statutes set out above, it is obvious that the intent of the

legislature is to encourage alternatives to incarceration in cases where defendants are

sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,

it is also clear that there is an intent to incarcerate those defendants whose criminal

histories indicate a clear disregard for the laws and morals of society and a failure of past

efforts to rehabilitate.



               In this case, the trial judge stated that while the defendant was presumed

to be an eligible candidate for probation, the presumption had been overcome by several

factors. The court cited the defendant’s “long history of criminal conduct,” the need to

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avoid depreciating the seriousness of the offense, and the defendant’s lack of potential

for rehabilitation. The trial judge pointed out that the defendant had driven many times,

although he knew he should not, and was only charged with four driving violations despite

his being behind the wheel numerous times. The trial judge further pointed out that after

being stopped once, the defendant continued to drive and ultimately received four

different sets of offenses in a five month period. He also noted that the defendant was

dangerous because of his attempts to evade arrest and disrupt traffic. He concluded that

the defendant had made a conscious decision to violate the law. Therefore, the trial judge

ordered the defendant to serve his six year sentence in the Department of Correction.



              Thus, it is quite clear that the trial court’s conclusion is amply supported by

the evidence. Probation is not proper for this defendant; we affirm the trial court’s

decision to deny probation.



              We now turn to the question of whether the defendant should have been

granted Community Corrections. The Community Corrections Act of 1985 establishes a

community based alternative to incarceration for certain offenders and sets out the

minimum eligibility requirements. T.C.A. §§ 40-36-101 through -306. This Act does not

provide that all offenders who meet the standards are entitled to such relief. State v.

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



              The purpose of the Tennessee Community Corrections Act of 1985 is to

establish a policy to punish selected, nonviolent felony offenders through community-

based alternatives to incarceration. The goals of the Community Corrections Act include

the following: maintaining safe and efficient community correctional programs, promoting

accountability of offenders to their local community, filling gaps in the local correctional

system through the development of a range of sanctions and services, reducing the


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number of nonviolent felony offenders in correctional institutions and jails, and providing

“opportunities for offenders demonstrating special needs to receive services which

enhance their ability to provide for their families and become contributing members of their

community . . . .” T.C.A. § 40-36-104(1)-(5).



              In this case, the trial court also denied the defendant’s request for

Community Corrections. This determination was based on the same reasoning for

denying the defendant’s request for probation. Again, as the conclusion was sufficiently

supported by the evidence, we see no reason to disturb the trial court’s decision.



              Thus, we conclude that the defendant has failed to carry his burden of

demonstrating that the evidence preponderates against the trial court’s findings, and

therefore, we affirm the judgment below.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:




JOSEPH M. TIPTON, Judge



_______________________________
J. CURWOOD WITT, JR., Judge




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