        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 15, 2007

                 STATE OF TENNESSEE v. JAMES DAVID MAY

                  Direct Appeal from the Circuit Court for Bedford County
                              No. 14691    Lee Russell, Judge



                 No. M2006-02143-CCA-R3-CD - Filed September 18, 2007


The defendant, James David May, pled guilty in the Bedford County Circuit Court to one count of
jail escape, a Class E felony. He was sentenced as a Range II, multiple offender to three years and
six months in the Department of Correction. On appeal, the defendant challenges the imposition of
incarceration, arguing that it would be more appropriate to sentence the defendant to community
corrections. Following our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN EVERETT
WILLIAMS, JJ., joined.

Andrew Jackson Dearing, III, Assistant Public Defender (on appeal), and Michael Collins, Assistant
Public Defender (at trial), for the appellant, James David May.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
W. Michael McCown, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                           OPINION

                                             FACTS

        During April 2000, the defendant was incarcerated in the Bedford County Jail for violation
of parole. He was assigned to a work crew stationed at a site in Bedford County. On April 19, 2000,
the defendant escaped from the work site, met up with an acquaintance, and fled to Louisiana, where
he worked for a time with a traveling carnival. The defendant remained at large until 2006, when
he was apprehended and returned to Tennessee, where he was charged with felony jail escape. On
August 3, 2006, the defendant pled guilty to felony escape.
        At the sentencing hearing, the defendant testified on his own behalf, saying that his past
problems with the law had taught him the importance of staying out of trouble. He said that he was
single but planned to marry the mother of his two young children as soon as he was released from
custody. The defendant testified that he had completed the tenth grade and planned to take the
G.E.D. test within the month. He said that he had not used alcohol or drugs within the past six years.
He informed the court that he had experience in performing contract labor and planned to seek
similar employment upon release.

        On cross-examination, the defendant acknowledged that he had fathered two other children
with a second woman and that he did not support these children. He admitted that his prior sentence
of community corrections had been revoked, as had two prior grants of parole, and that he had
previously escaped from confinement, resulting in a conviction for misdemeanor jail escape.

       The trial court sentenced the defendant to three years and six months incarceration. The court
found that the defendant was not an appropriate candidate for community corrections, taking into
account his prior criminal convictions and repeated violations of community corrections and parole
requirements.

                                            ANALYSIS

         On appeal, the defendant argues that community corrections is a more appropriate sentence
than incarceration. When a defendant challenges the length or manner of a sentence, this court
conducts a de novo review, with a presumption that the determinations of the court from which the
appeal is taken are correct. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). The presumption
of correctness is conditional, and applies only where there is an “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 party challenging the sentence imposed by
the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-
35-401, Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169. In this case, the defendant has
the burden of illustrating that the sentence imposed by the trial court is erroneous.

        The Tennessee Criminal Sentencing Reform Act of 1989, enacted to “promote justice,” Tenn.
Code Ann. § 40-35-102 (2006), provides that the sentence imposed upon an offender should be the
“least severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(4) (2006). Thus, trial judges are “encouraged” to use “alternatives to
incarceration that include requirements of reparation, victim compensation or community service.”
Tenn. Code Ann. § 40-35-103(6) (2006). An especially mitigated or standard offender convicted
of a Class C, D, or E felony should be considered as a favorable candidate for alternative sentencing
in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6) (2006).

         If an offender meets the criteria under Tennessee Code Annotated section 40-35-102(6), the
trial court “must presume that he is subject to alternative sentencing.” Ashby, 823 S.W.2d at 169.
However, if the court is presented with “evidence sufficient to overcome the presumption, then it


                                                 -2-
may sentence the defendant to confinement according to the statutory provision.” Id. The
presumption in favor of alternative sentencing may be overcome “by facts contained in the
presentence report, evidence presented by the state, the testimony of the accused or a defense
witness, or any other source provided it is made a part of the record.” State v. Parker, 932 S.W.2d
945, 958 (Tenn. Crim. App. 1996).

        The defendant is not an especially mitigated or standard offender entitled to the presumption
of alternative sentencing set forth in Tennessee Code Annotated section 40-35-102(6). He is
classified as a multiple offender based on prior convictions of two counts of aggravated burglary and
one count of felony theft. See Tenn. Code Ann. § 40-35-106 (2006). Nonetheless, the defendant
asserts that he meets the eligibility criteria for community corrections, set forth in Tennessee Code
Annotated section 40-36-106. To qualify for consideration for punishment in the community, an
offender must meet all of the following criteria:

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

              (B) Persons who are convicted of property-related, or drug- or alcohol-related
       felony offenses or other felony offenses not involving crimes against the person as
       provided in title 39, chapter 13, parts 1-5;

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

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

               (E) Persons who do not demonstrate a present or past pattern of behavior
       indicating violence; [and]

              (F) Persons who do not demonstrate a pattern of committing violent
       offenses[.]

Tenn. Code Ann. § 40-36-106(a)(1).

        Assuming, arguendo, that the defendant satisfies these six requirements, it does not
necessarily follow that community corrections is the most appropriate sanction in this case.
Tennessee Code Annotated section 40-36-106 establishes only the eligibility requirements for
community corrections. It does not create an entitlement of freedom from confinement. The trial
court retains the discretion to impose incarceration in appropriate cases.

       The defendant has not carried his burden of establishing that the trial court erred in
sentencing him to incarceration. The trial court arrived at its determination after considering all
relevant sentencing principles and the facts and circumstances particular to this case. The court


                                                -3-
found multiple factors justifying an enhancement of the defendant’s sentence above the advisory
minimum established by the Tennessee Sentencing Guidelines. The court considered the defendant’s
long previous history of criminal convictions, including convictions for theft, aggravated burglary,
misdemeanor jail escape, and driving under the influence. The court found that the defendant led
the commission of an offense involving two or more criminal actors and that the defendant before
trial or sentencing failed to comply with the conditions of a sentence involving release into the
community. See Tenn. Code Ann. § 40-35-114(1), (2), (8) (2006). Defense counsel, recognizing
that the record amply supported a sentence of incarceration, did not request probation at the
sentencing hearing: “Judge, we’d ask the Court to give [the defendant] a minimum sentence or as
close to a minimum sentence as the Court sees fit. We know the Court’s not going to give [the
defendant] probation, so I’m not going to sit in front of the Court and argue that.” Yet, on appeal,
the defendant argues that community corrections is a more appropriate form of punishment than
incarceration.

        The Tennessee Criminal Sentencing Reform Act of 1989 enumerates several principles a
court should consider before imposing a sentence of confinement. Confinement is appropriate where
“necessary to protect society by restraining a defendant who has a long history of criminal conduct”;
“necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited
to provide an effective deterrence to others likely to commit similar offenses”; or where “[m]easures
less restrictive than confinement have frequently or recently been applied unsuccessfully to the
defendant[.]” Tenn. Code Ann. § 40-35-103(1)(A)-(C) (2006). The trial court found that the
defendant’s lengthy history of violation of the conditions of parole and alternative sentencing, along
with his myriad prior convictions, justified a sentence of confinement:

       [E]very time or virtually every time [the defendant has] been given any kind of a
       break by a judge, he has been revoked. He has violated the terms of his release, every
       time or virtually every time. And for that reason I find him to be a very, very poor
       risk to get alternative sentencing, and I find that he is highly likely to repeat unless
       he is incarcerated.

       The record supports this determination by the trial court.

                                          CONCLUSION

      We conclude that the trial court properly sentenced the defendant to incarceration.
Accordingly, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




                                                 -4-
