                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                  AT KNOXVILLE

                       STATE OF TENNESSEE V . VERNON E. HAAS

                  Direct Appeal from the Criminal Court for Sullivan County
                            No. S42,003 R. Jerry Beck , Judge



                     No. E1999-00690-CCA-R3-CD - Decided June 8, 2000


Defendant Vernon E. Haas pled guilty to the Class E felony offense of violating a Habitual Motor
Vehicle Offender order that prohibited him from driving. The trial court subsequently sentenced
Defendant as a Range II multiple offender to a term of two years and three months in the Tennessee
Department of Correction. Defendant raises the following issue in this appeal: whether the trial
court erred when it failed to impose probation or a Community Corrections sentence. The judgment
of the trial court is affirmed.

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

WOODALL , J. delivered the opinion of the court, in which RILEY, J. and GLENN, J. joined.

Stephen M. Wallace, District Public Defender, Joseph F. Harrison, Assistant Public Defender,
Blountville, Tennessee, and Steve McEwen, Mountain City, Tennessee, for the appellant, Vernon
E. Haas, on appeal; Frank L. Slaughter, Bristol, Tennessee, for the appellant Vernon E. Haas, at trial.

Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney, Assistant Attorney General,
H. Greeley Wells, Jr., District Attorney General, and Mary Katharine Harvey, for the appellee, State
of Tennessee.

                                             OPINION

                                         BACKGROUND

        At the beginning of the sentencing hearing, Defendant stipulated that he was a Range II
multiple offender based on his prior criminal record. Defendant also stipulated that enhancement
factor (1) was applicable to his sentence because he had a previous history of criminal convictions
in addition to those necessary to establish the appropriate range and enhancement factor (8) was
applicable because he had a previous history of unwillingness to comply with the conditions of a
sentence involving release into the community. In addition, the trial court found that mitigating
factor (1) was applicable because Defendant’s criminal conduct did not cause or threaten serious
bodily injury.
       Defendant testified during the sentencing hearing that if the trial court imposed probation,
he would abide by the probation requirements. Defendant testified on cross-examination that in
addition to the conviction in this case, he had previously been convicted of violating a Habitual
Motor Vehicle Offender order. Defendant admitted that he had driven a vehicle in violation of a
Habitual Motor Vehicle Offender order more than just the two occasions for which he was convicted.

        At the conclusion of the sentencing hearing, the trial court found that Defendant had been
in continuous trouble with the law since he was a young man. The court also found that Defendant
had previously received probation in another case and that probation had been revoked. The court
then imposed a sentence of two years and three months and the court denied Defendant’s request for
alternative sentencing.

                                            ANALYSIS

       Defendant contends that the trial court erred when it failed to impose probation or a
Community Corrections sentence in this case. Defendant has not challenged the length of his
sentence.

                                                 A.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). 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).

        In conducting a de novo review of a sentence, this court must consider: (1) the evidence, if
any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the
criminal conduct involved; (5) any statutory mitigating or enhancement factors; (6) any statement
made by the defendant regarding sentencing; and (7) the potential or lack of potential for
rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210 (1997 & Supp. 1999).

       Initially, we note that under Tennessee law, especially mitigated or standard offenders
convicted of a class C, D, or E felony and who do not possess a criminal history evincing a clear
disregard for the laws and morals of society and a failure of past efforts at rehabilitation are
presumed to be favorable candidates for alternative sentencing options, absent evidence to the
contrary. Tenn. Code Ann. § 40-35-102(5), (6) (1997). Because Defendant was sentenced as a
Range II multiple offender, he is not presumed to be a favorable candidate for alternative sentencing.

        We also note that because Defendant’s sentence is eight years or less and none of the
statutory exceptions apply, Defendant was eligible for probation. See Tenn. Code Ann. §
40-35-303(a) (1997). Further, as an offender convicted of a nonviolent felony offense, Defendant

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was eligible for the Community Corrections Program. See Tenn. Code Ann. § 40-36-106(a) (Supp.
1999). However, even though Defendant was eligible for probation, he was “not automatically
entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b) (1997) (Sentencing
Commission Comments). Similarly, the fact that Defendant satisfied the minimum requirements of
the Community Corrections Act does not mean that he is entitled to be sentenced under the Act as
a matter of law or right. State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App. 1998).

         When determining suitability for alternative sentencing, the sentencing court considers the
following factors: (1) whether confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct; (2) whether confinement is necessary to avoid
depreciating the seriousness of the offense; (3) whether confinement is particularly suited to provide
an effective deterrent to others likely to commit similar offenses; (4) whether measures less
restrictive than confinement have frequently or recently been applied unsuccessfully to the
defendant; and (5) whether the defendant has poor potential for rehabilitation. See Tenn. Code Ann.
§ 40-35-103(1) (1997); State v. Housewright, 982 S.W.2d 354, 356–57 (Tenn. Crim. App. 1997).

                                                  B.

         Defendant contends that the trial court erroneously failed to apply two mitigating factors: (3)
substantial grounds exist tending to excuse or justify his criminal conduct, though failing to establish
a defense; and (11) the offense was committed under such unusual circumstances that it is unlikely
that a sustained intent to violate the law motivated the criminal conduct. See Tenn. Code Ann. § 40-
35-113(3), (11) (1997). Defendant contends that applicability of these two mitigating factors
demonstrates that he deserved alternative sentencing.

        We do not agree that Defendant’s claim in the presentence report that he needed to drive his
vehicle to get to work so that he would not be fired is sufficient to establish “substantial grounds”
tending to excuse or justify his criminal conduct and thus, we conclude that mitigating factor (3) was
not applicable. We also conclude that mitigating factor (11) was not applicable. Defendant
expressly admitted during the sentencing hearing that he had driven a vehicle in violation of a
Habitual Motor Vehicle Offender order more than just the two occasions for which he was convicted.
Defendant obviously had no respect for the law prohibiting him from driving. Regardless, even
assuming arguendo that the trial court erred when it failed to apply these factors, the trial court’s
denial of probation was justified based on Defendant’s poor potential for rehabilitation.

        The presentence report in this case indicates that besides the fact that he has been declared
a Habitual Motor Vehicle Offender, Defendant’s prior criminal record consists of one conviction for
aggravated assault, one conviction for simple assault, one conviction for harassment, one conviction
for possession of a weapon with intent to go armed, one conviction for reckless driving, two
convictions for DUI, and four convictions for driving on a revoked license (it also appears that
Defendant was convicted of several other offenses, but because the presentence report is not entirely
clear as to the convictions for those particular offenses, we have given Defendant the benefit of the
doubt and we do not consider them). The record also indicates that Defendant was previously placed
on probation and his probation was revoked because he committed new offenses and he made a false

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statement on his monthly report. Defendant’s lengthy criminal record demonstrates a clear disregard
for the laws of society and the previous revocation of his suspended sentence demonstrates a failure
of past efforts at rehabilitation. Clearly, Defendant has an extremely poor potential for rehabilitation
and society needs protection from this Defendant who has a long history of criminal conduct. Under
these circumstances, we conclude that the trial court did not abuse its discretion when it denied
alternative sentencing in this case. Defendant is not entitled to relief on this issue.

        Accordingly, the judgment of the trial court is AFFIRMED.




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