         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs January 27, 2004

              STATE OF TENNESSEE v. DAVID CLINTON YORK

                   Direct Appeal from the Criminal Court for Clay County
                             No. 4028    Lillie Ann Sells, Judge



                      No. M2003-00525-CCA-R3-CD - Filed May 3, 2004


The defendant, David Clinton York, an inmate in the Clay County Jail, pled guilty to felony escape
and was sentenced as a Range III, persistent offender to five years in the Department of Correction.
On appeal, he argues that the trial court erred in determining that he was a persistent offender, in
denying alternative sentencing, and in applying the enhancement and mitigating factors. Following
our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

Michael R. Giaimo, Livingston, Tennessee, for the appellant, David Clinton York.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William Edward Gibson, District Attorney General; and John A. Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

        At the defendant’s initial sentencing hearing held on September 3, 2002, the State related
what its proof would have been had the case gone to trial:

               [O]n the date of the offense, August 31, 2001, [the defendant] was
               being incarcerated, had not made bond for a charge of aggravated
               assault, two charges of aggravated assault. . . . Which had occurred
               several days prior to August 31st, 2001. While being an inmate at the
               Clay County Jail, while [the defendant] was an inmate, the jail’s
               cook, Mr. Emerson Wilson, began serving lunch one day around
                 noontime. In order to do that, he takes for the prisoners who are
                 under lockdown, takes a tray or cart back through the holding cell to
                 deliver the different, to different persons.

                         While he was back there, [the defendant] was able to be out
                 of his cell, he walked down the way there, out through this single
                 door to get outside of the holding area, through a door there at the
                 side of the jail and out.

                        An investigation revealed that he was gone and they began
                 looking for him immediately and he was located about a week later
                 by Deputy Bean and another deputy . . . in a location out in the
                 county, in Clay County. Sheriff Rhoten would testify that he had not
                 given him permission, Sheriff Rhoten of Clay County, he had not
                 given him permission to leave. That’s basically what the state proof
                 would show.

        Michael Newport of the Tennessee Board of Probation and Parole testified that he prepared
the defendant’s presentence report from information he received from the Clay County Sheriff’s
Department, the District Attorney General’s case file, and the Clay County Circuit Court Clerk’s
Office. He also interviewed Deputy Bean of the Clay County Sheriff’s Department. As to the
defendant’s prior convictions, Newport said that the defendant had three convictions for receiving
stolen property over $100 committed on January 1, 1987, in Monroe County, Kentucky, Circuit
Court Case Nos. 87CR005, 87CR006, and 87CR007. The defendant also had a fourth conviction,
in Monroe County, Kentucky, Circuit Court Case No. 87CR008, for receiving stolen property over
$100, with that offense occurring on January 17, 1987. Copies of the four indictments, as well as
a certified copy of the judgment entered on May 27, 1987, for these offenses were admitted into
evidence. Newport said that the defendant also had convictions in the United States District Court,
Western District of Kentucky, for three counts of unlawful transportation of stolen firearms and two
counts of sale and disposal of stolen firearms. According to copies of the federal indictments, which
were admitted into evidence along with a certified copy of the judgment for these offenses, the
offense dates for the three counts of unlawful transportation of stolen firearms were December 1986,
December 24, 1986, and January 17, 1987, while the offense dates for the two counts of sale and
disposal of stolen firearms were December 1986 and December 24, 1986.

        Newport testified his investigation further revealed that the defendant had been convicted in
Polk County, Arkansas, Circuit Court Case No. CR-74-59 of grand larceny, with the offense
occurring on November 10, 1974.1 Newport said that, according to federal probation office records,
the defendant had used an alias, Randy Combee, in the past. Newport also identified certified copies
of judgments from the Polk County, Arkansas, Circuit Court in Case Nos. CR-74-61 and CR-74-62


        1
         W e note that Newport said “November 10th, 1984,” when testifying; however, according to the indictment
which was admitted into evidence, the offense date was November 10, 1974.

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wherein the defendant had pled guilty to burglary and grand larceny in each case, with the offenses
occurring on November 20, 1974, and November 15, 1974, respectively. According to the certified
copies of the judgments and the indictments for Polk County, Arkansas, Circuit Court Case Nos. CR-
74-63 and CR-74-64, which were admitted into evidence as well, the defendant was convicted of
burglary and grand larceny in each case, with all of the offenses occurring on November 15, 1974.
Additionally, Newport identified a certified judgment and indictment from the Polk County,
Arkansas, Circuit Court in Case No. CR-75-11, wherein the defendant had pled guilty to escape from
jail, with the offense occurring on December 20, 1974. With the exception of the judgment in Case
No. CR-74-62, which listed the defendant as “David Clinton York, alias Randy Combee,” all of the
Polk County, Arkansas, Circuit Court judgments listed the defendant as “Randy Combee.”

         Newport also identified a certified judgment and indictment from Polk County, Florida,
Circuit Court Case No. CF74-1331 showing that the defendant had been convicted of rape, with that
offense occurring in June 1974. Newport said that his investigation revealed that the defendant was
on federal parole at the time he committed the instant offense and that he was acquitted of the
charges for which he was being held at the time he escaped. Newport acknowledged that the drug
test he administered to the defendant was “clean” and that most of the defendant’s prior convictions
occurred over twenty-five years ago.

        Burton Putman, the defendant’s federal probation officer, testified that the defendant had
been convicted of three counts of unlawful transportation of stolen firearms and two counts of sale
and disposal of stolen firearms into interstate commerce on August 18, 1987, and had received a total
sentence of twenty years. The defendant was in federal custody from August 1987 until May 19,
2000, when he was paroled. During his supervision of the defendant’s parole, Putman discovered
that the defendant had used an alias, Randy Combee. Putman identified a Kentucky federal court
indictment that listed the defendant as “David Clinton York, a/k/a Randy Combee.” Putman also
believed that the Randy Combee named in the Arkansas judgments was the same person as the
defendant. Putman said that the defendant was on federal parole on August 31, 2001, when he
committed the instant offense.

        On cross-examination, Putman acknowledged that only one of the Arkansas judgments listed
the defendant as “David Clinton York, alias Randy Combee” while the others listed him as “Randy
Combee.” He said he never asked the defendant if he had used that particular alias “because that was
done way before [his] involvement with [the defendant].” The defendant was frequently tested for
drugs while under Putman’s parole supervision, and no illegal substances were ever detected.
Putman said that a parole violation warrant was issued “following a DUI [the defendant] received
in the State of Kentucky in June of 2001. And then it was amended to include those charges that he
was eventually acquitted of in Clay County and now has been amended again to include the felony
escape.” Asked by the court if he had reviewed the defendant’s prior criminal history with him,
Putman replied, “No . . . [t]hat would have been done by an officer in my capacity in Bowling Green,
Kentucky who wrote the pre-sentence report in 1987.” In response to the court’s inquiry as to
whether the defendant’s convictions under the name of Randy Combee had been used in federal
court to enhance his sentence, Putman said, “As far as the enhancement . . . I’m not sure at that time.


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That would have been pre-guideline, federal guideline. About that time is when the guidelines came
into being. So he was an old case, an[] old guidelines case.” Putman said that a presentence report,
which would have included the defendant’s entire criminal history, had been prepared, but he did
not bring a copy with him to court. Putman then identified a federal presentence report handed to
him by the prosecutor and acknowledged that the defendant’s Polk County, Arkansas, convictions
were included in the report. Putman said that, because the Arkansas judgments were a part of the
federal presentence report, it was likely that the court considered those convictions when sentencing
the defendant.

        Because the State sought to have the defendant classified as a career offender, the trial court
continued the sentencing hearing to a later date to allow the State time to gather additional proof as
to whether the defendant and Randy Combee were the same person. At the continuation of the
hearing held on November 25, 2002, the State informed the court that it had been unable to obtain
additional information regarding the defendant’s Arkansas convictions under the name of Randy
Combee due to the age of those convictions. The State then elected to proceed to have the defendant
classified as a Range III offender, rather than a career offender. At the conclusion of the hearing, the
trial court sentenced the defendant as a Range III offender to five years in the Department of
Correction. Subsequently, on December 4, 2002, the trial court entered written findings of fact
regarding the defendant’s sentence.

                                             ANALYSIS

                                         Standard of Review

         When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken 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 presumption does not apply to the legal conclusions reached
by the trial court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d
163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9
(Tenn. 2000). However, this court is required to give great weight to the trial court’s determination
of controverted facts as the trial court's determination of these facts is predicated upon the witnesses’
demeanor and appearance when testifying.

       In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation


                                                  -4-
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001).

        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 the sentence
imposed by the trial court is erroneous.

                                    I. Persistent Offender Classification

        The defendant argues that the trial court erred in classifying him as a persistent offender,
saying he did not have the requisite number of prior felony convictions because the State failed to
prove that he “was in fact the individual known as Randy Combee.” He contends he only had three
prior felony convictions and, accordingly, should have been classified as a Range II offender.

       Tennessee Code Annotated section 40-35-107(a)(1) defines a “persistent offender” as a
defendant who has received “[a]ny combination of five (5) or more prior felony convictions within
the conviction class or higher, or within the next two (2) lower felony classes, where applicable.”
A multiple offender is defined as a defendant who has received “[a] minimum of two (2) but not
more than four (4) prior felony convictions within the conviction class, a higher class, or within the
next two (2) lower felony classes, where applicable.” Tenn. Code Ann. § 40-35-106(a)(1).

         We respectfully disagree that, even as “David York,” the defendant has only three prior
felony convictions. By our count, even excluding those convictions solely in the name of Randy
Combee, the defendant has five prior felony convictions, thus justifying the court’s sentencing him
as it did. As we have set out, he was convicted in state and federal courts2 as “David York” and
“David Clinton York, a/k/a Randy Combee,”3 respectively, in Kentucky for felony stolen property
offenses occurring on January 17, 1987, and in the same Kentucky state court (as “David York”) for
felony stolen property offenses occurring on January 1, 1987. He was convicted in the Kentucky
federal court, according to the judgment, as “David Clinton York” for felony firearms offenses
occurring in December 1986 and January 1987. As “David Clinton York,” he was convicted in Polk
County, Florida, for a rape committed in June 1974; and he was convicted as “David Clinton York,
alias Randy Combee” in Polk County, Arkansas, for burglary and grand larceny, which had been
committed on November 15, 1974. We note that this Arkansas sentence was to be served
concurrently with the series of sentences imposed on “Randy Combee.”

         As this court explained in State v. Cottrell, 868 S.W.2d 673, 678 (Tenn. Crim. App. 1992),

         2
          Counts 1, 4, and 7 of the federal indictment, which were dismissed following the defendant’s pleas of guilty
to Counts 2, 3, 5, 6, and 8, recited his previous convictions as being the state convictions in Arkansas and Florida, some
of which, as we have stated, were solely in the name “Randy Combee.”

         3
          The federal indictment listed the defendant as “David Clinton York, a/k/a Randy Combee,” while the judgment
listed him as “David Clinton York.”

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name similarity “constitutes prima facie evidence of identity,” the court noting that the name “Scottie
Cottrell” appeared both in the indictment which was the basis for the appeal, as well as the previous
judgment that was the basis for enhanced punishment. Likewise, in State v. Woodson, 705 S.W.2d
677, 679 (Tenn. Crim. App. 1985), this court explained, quoting Beeler v. State, 206 Tenn. 160, 166,
332 S.W.2d 203, 206 (1959), that “‘[a] majority of the authorities hold that the identity of name of
the defendant and the person previously convicted is prima facie evidence of the identity of the
person, and in the absence of rebutting evidence, supports a finding of such identity.’”

        These authorities make it clear that the State sufficiently proved that this defendant, “David
Clinton York,” had at least five prior felony convictions of sufficient grade to justify his being
sentenced as a Range III, persistent offender. Even if his argument were correct that the State did
not sufficiently prove that David York and Randy Combee are the same person, the fact remains that,
as David York, the defendant’s record of convictions qualified him as a persistent offender.
Accordingly, this assignment is without merit.

                               II. Denial of Alternative Sentencing

       The defendant argues that, had he not been classified as a persistent offender, he would have
been eligible for an alternative sentence because his sentence was eight years or less. At the
sentencing hearing, the defendant’s request for alternative sentencing was that “he’s been
incarcerated without any kind of break for fifteen months straight since he was picked up on the
indictment, at that time for aggravated assault, later indicted for attempted first degree murder.”

         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 in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated section 40-35-303(a) states
that a defendant shall be eligible for probation, subject to certain exceptions, if the sentence imposed
upon the defendant is eight years or less. Even if eligible, however, the defendant is not
automatically entitled to probation as a matter of law. See id. § 40-35-303(b). The burden is upon
the defendant to show that he is a suitable candidate for probation. Id.; State v. Goode, 956 S.W.2d
521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).
 In order to meet this burden, the defendant “must demonstrate that probation will ‘subserve the ends
of justice and the best interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d
448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.
1990)).

        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 part of the record. State v. Parker, 932 S.W.2d 945,
958 (Tenn. Crim. App. 1996). A trial court may deny alternative sentencing and sentence a
defendant to confinement based on any one of the following considerations:




                                                  -6-
               (A) Confinement is necessary to protect society by restraining a
               defendant who has a long history of criminal conduct;

               (B) Confinement is 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

               (C) Measures less restrictive than confinement have frequently or
               recently been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1).

       In denying alternative sentencing, the trial court stated:

               An alternative sentence, I can’t find that . . . . By a preponderance of
               the evidence, the court finds that this defendant possesses a criminal
               history which evidences his clear disregard for the law and society
               and a failure of past efforts to rehabilitate the defendant. And that
               would have been the presumption of alternative sentencing. I can’t
               make that with his criminal history. It’s too extensive, too lengthy to
               do that.

         Although the defendant was sentenced as a Range III offender, and thus not entitled to a
presumption of being a favorable candidate for alternative sentencing, he would not have been
entitled to this presumption even if he had been sentenced as a Range II offender, as he argues should
have occurred. The presentence report shows that the defendant has spent the large bulk of his life,
since 1965 when he was adjudged delinquent and sentenced to confinement in a Kentucky juvenile
facility, in various federal and state penal institutions. The trial court determined that he was not
entitled to alternative sentencing, and we agree.

                   III. Application of Enhancement and Mitigating Factors

        Lastly, the defendant argues that the trial court erred in its application of the enhancement
and mitigating factors, making his five-year sentence excessive. Specifically, he argues that
“[w]ithout the significant weight of the prior criminal history, the enhancement and mitigating
factors could have canceled each other out and the court would have been left with the minimum
sentence in the Range which should have been four (4) years.”

        The defendant was convicted of felony jail escape, a Class E felony. The sentencing range
for a Class E felony in Range III is not less than four nor more than six years. Tenn. Code Ann. §
40-35-112(c)(5). The sentence to be imposed for a Class B, C, D, or E felony is presumptively the
minimum in the range unless there are enhancement factors present. Id. § 40-35-210(c).
Procedurally, the trial court is to increase the sentence within the range based on the existence of


                                                 -7-
enhancement factors, and then reduce the sentence as appropriate for any mitigating factors. Id. §
40-35-210(e). Here, the trial court applied enhancement factor (2), “[t]he defendant has a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range,” Tenn. Code Ann. § 40-35-114(2) (2003), and assigned it “a great deal of weight.”
The court applied one mitigating factor, “[t]he defendant's criminal conduct neither caused nor
threatened serious bodily injury,” Tenn. Code Ann. § 40-35-113(1) (2003), and assigned it “some
weight.” The weight given to each factor is left to the sound discretion of the trial court. State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

       In setting the defendant’s sentence at five years, the trial court stated:

                       The court has considered all the evidence in this case that I’ve
               heard, the sentencing report. I’ve considered the sentencing and the
               arguments that the counsel have made in this case. I’ve considered
               the major characteristics of the criminal conduct and all the mitigating
               and enhancement factors. I’ve considered my major findings as I
               have stated above, I have considered them all.

                       The potential or the lack of potential for rehabilitation
               treatment, the court finds really none based on his criminal history.
               If you haven’t learned enough by the time you’re fifty something
               years of age, you’re rehabilitative history is very important. There’s
               not a lot, as we said, before him there. He was in custody and was
               found not guilty by a jury. I don’t know the facts of that case or
               anything about it, but he decided to leave the jail while he was being
               held for a felony. With this criminal history, we’re going to go with
               five years range three[.]

       We conclude that the trial court did not abuse its discretion in giving great weight to the
defendant’s very substantial record of convictions over nearly a forty-year period.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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