         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 20, 2001

             STATE OF TENNESSEE v. GLENN RUSSELL PARVIN

                 Direct Appeal from the Criminal Court for Sullivan County
                    No. S42853, S42893, S43039    R. Jerry Beck, Judge



                                  No. E2000-01756-CCA-R3-CD
                                        August 29, 2001


        The Sullivan County grand jury issued presentments against the defendant on one count of
operating a motor vehicle without a face shield; two counts of speeding; three counts of driving
under the influence; three counts of driving on a revoked license; two counts of driving on revoked
license after second or subsequent conviction for driving while intoxicated; one count of driving on
revoked license after second or subsequent conviction for driving under the influence; one count of
driving while intoxicated, fourth offense; and one count of driving under the influence, fourth
offense. The charges resulted from three separate cases. The defendant pled to all of the crimes in
two different plea hearings and the defendant was sentenced as a career offender to a total of
eighteen years, with a minimum jail time of 585 days, and with his last six years to be served on
probation. The trial court sentenced the defendant as a career offender and did not apprise the
defendant of the possibility that he could be sentenced as a persistent offender, as opposed to a career
offender. He moved to withdraw his guilty pleas on this ground. The trial court denied his motion,
and he appeals the denial. Furthermore, the defendant waived his right to request probation or
alternative sentencing in one case, and the state agreed to allow the defendant to serve probation in
one case. In the third case, the defendant requested probation or alternative sentencing. The trial
court denied his request, citing his extensive criminal history in support of its denial. The defendant
also appeals this denial. After reviewing the record and applicable case law, we find these issues to
be without merit and therefore affirm the lower court’s denial of defendant’s motion to withdraw his
guilty pleas and its denial of probation or alternative sentencing.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN,
JJ., joined.

Steve McEwen, Mountain City, Tennessee, on appeal; and Terry L. Jordan, Assistant Public
Defender, Blountville, Tennessee, at trial; for appellant, Glenn Russell Parvin.
Paul G. Summers, Attorney General & Reporter; Glen C. Watson, Assistant Attorney General;
Greeley Wells, District Attorney General; and B. Todd Martin, Assistant District Attorney, for
appellee, State of Tennessee.

                                               OPINION

                                        Statement of the Facts

         On March 30, 1999, the defendant, Mr. Glenn Russell Parvin, was arrested for operating a
motorcycle without a face shield, speeding, driving under the influence, driving on a revoked license,
and driving on revoked license after second or subsequent conviction for driving while intoxicated
[hereinafter Case S42,893]. On June 3, 1999, the defendant was arrested for speeding, driving under
the influence, driving on a revoked license, driving on a revoked license after a second or subsequent
conviction for driving while intoxicated, and driving while intoxicated, fourth offense [hereinafter
Case S42,853]. On July 5, 1999, the defendant was arrested for driving under the influence, driving
under the influence, fourth offense, driving on a revoked license, and driving on a revoked license
after a second or subsequent conviction for driving while intoxicated [hereinafter Case S43,039].
Thereafter, Sullivan County grand juries issued presentments against the defendant for the crimes
committed on the above dates.
         On December 15, 1999, the defendant pled guilty to the charges in Case S42,893. He entered
an open plea with the court, reserving the determination of the length and manner of sentencing for
the court. The court scheduled a hearing to determine whether the defendant would receive
probation or alternative sentencing in lieu of jail time. However, before the date of that hearing, the
defendant entered into a plea agreement with the state regarding Case S42,893, in which the state
agreed to enter a nolle prosequi for the charges of speeding and driving a motorcycle without a face
shield. In return, the defendant agreed to waive his right to request probation or alternative
sentencing for the remaining counts of the indictment.
         On January 20, 2000, the court held a plea hearing in which the defendant pled guilty to the
charges in Cases S42,853 and S43,039. At this hearing, the trial court fully advised the defendant
of all of his rights, including his right against self-incrimination, right of confrontation, and right to
compulsory due process. The court advised the defendant of the maximum and minimum possible
ranges of sentencing that he could receive for these charges. Furthermore, the trial court fully
apprised the defendant of all of his additional constitutional rights.
         After being apprised of his rights, the defendant stated that he understood those rights and
knowingly and voluntarily relinquished them. The prosecutor then read the facts to which the parties
had stipulated. These stipulations included the facts of the crimes to which the defendant was
pleading guilty, as well as the defendant’s previous six felony convictions and his status as a career
offender. After the prosecutor read these stipulations onto the record, the trial court explained to the
defendant that because he would be sentenced as a career offender if he pled guilty, he was waiving
his right to require the prosecution to prove all of the felonies underlying his classification as a career
offender.
         After ensuring that the defendant’s pleas were voluntary and not the products of coercion
the trial court sentenced the defendant for Case S42,893, in which the defendant had previously

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entered an open plea of guilt, as well as Cases S42,853 and S43,039. The court sentenced the
defendant as a career offender to a total of eighteen years, six years per case to be served
consecutively, with a mandatory 585 days to be served in jail. The defendant waived his right to
request probation or alternative sentencing for case S42,859 in his plea agreement with the state.
However, he did not waive his right to request probation or alternative sentencing in Case S42,853,
and the court agreed to hear this issue at a later date. With regard to case S43,039, the state agreed
that the defendant could serve his six-year sentence for this case on probation after serving his
sentences for the first two cases, S42,893 and S42,853.
         Thereafter, the defendant filed a motion to withdraw his guilty pleas, and the court held a
hearing on the defendant’s motion on April 25, 2000. At this hearing, the defendant argued that the
State could not use his pre-1989 felony convictions to enhance his sentence, as those convictions
occurred before the enactment of the Tennessee Criminal Sentencing Reform Act. Furthermore, the
defendant argued that he should be allowed to withdraw his guilty plea because he was not advised
of the fact that the trial court or a jury would have the discretion to sentence him as a Range III
persistent offender, as opposed to a Range IV career offender. The defendant based his argument
on the language of the statute, which reads that an individual previously convicted of five or more
felonies may be classified as a persistent offender. See Tenn. Code Ann. § 40-35-10(a)(1) (1997).
         The defendant argued that the trial court should apply the standard of review set forth in
Tenn. R. Crim. P. 32(f) that applies when the defendant has pled guilty but has not yet been
sentenced, i.e. whether there is a “fair and just reason” to withdraw the guilty plea. The defendant
argued that the stricter standard of review, i.e., to correct manifest injustice, which is applied when
a defendant has pled guilty and been sentenced, should not apply, because the defendant pled guilty
and was sentenced almost simultaneously, thus not allowing the defendant an opportunity to
challenge his plea before being sentenced. The court denied the defendant’s motion, stating that the
motion failed under both of the standards set forth under Rule 32(f).
         Subsequently, a hearing was held on June 17, 2000 to decide the unresolved issue of whether
the court would allow the defendant to receive probation or alternative sentencing in lieu of jail time
for case S42,853. The defendant argued that he should be placed on probation or in a community
corrections program because his crimes were a result of his untreated alcoholism and because his
conduct neither threatened nor caused serious bodily injury. The court denied the defendant’s
request based upon the defendant’s extensive criminal record.
         For the reasons stated in fra., we find that the trial court properly denied the defendant’s
request for probation or alternative sentencing. Furthermore, we hold that the allegation that
petitioner’s guilty plea was involuntarily entered is without merit.
                                     Withdrawal of Guilty Pleas
         The defendant alleges that it was error for the trial court to deny his motion to withdraw his
pleas of guilt. Specifically, the defendant asserts that his pleas were not made knowingly because
the trial court failed to advise him that he could be sentenced as a persistent offender, as opposed to
being sentenced as a career offender. The defendant, who was sentenced to three six-year sentences
for his commission of three Class E felonies, relies on Tennessee Code Annotated Sections 40-35-
108(a)(3) and 40-35-107(a)(1) to support his argument that a defendant convicted of a Class E felony
who has six prior felony convictions may be sentenced as either a career or persistent offender. The
statutes provide, in pertinent part,


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        (a) A “career offender” is a defendant who has received:
        ...
        (3) At least six (6) prior felony convictions of any classification if the defendant’s
        conviction offense is a Class D or E felony.

Tenn. Code Ann. § 40-35-108(a)(3) (1997).
       (a) A “persistent offender” is a defendant who has received:
       (1) Any 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.

Tenn. Code Ann. § 40-35-107(a)(1) (1997) (emphasis added). The defendant asserts that because
an individual with “five or more” felony convictions may be sentenced as a persistent offender, the
defendant, who had six prior felony convictions, could have been sentenced as either a persistent or
a career offender by the trial court and that it was error for the trial court not to advise the defendant
of this possibility.
        However, in his negotiated pleas with the state for two of the three cases, namely Cases
S42,853 and S43,039, the defendant stipulated to the fact that he was a career offender. Once a
defendant stipulates that he is a career offender, he or she can no longer challenge that classification,
and the trial court must sentence the defendant as a career offender. Tennessee Code Annotated
Section 40-35-108(c) provides that “[a] defendant who is found by the court beyond a reasonable
doubt to be a career offender shall receive the maximum sentence within the applicable Range III.”
Tenn. Code Ann. § 40-35-108(c) (1997). In short, the trial court does not have any discretion when
sentencing a career offender. See State v. Albert Franklin, No. 02C-01-9404-CR-00081, 1994 WL
697928 at *1 (Tenn. Crim. App. at Jackson, Dec. 14, 1994).
        After the defendant pled guilty to Cases S42,853 and S43,039 and the trial court learned
of the defendant’s stipulated status as a career offender, the trial court sentenced the defendant to
six years for each case, based upon the maximum sentence within the applicable sentencing
range. See Tenn. Code Ann. § 40-35-108(1) (1997); see also Tenn. Code Ann. § 40-35-108(c)
(1997) (stating that career offenders must receive the maximum sentence allowed within the
applicable Range III for that offense); Tenn. Code Ann. § 40-35-112(c)(5) (1997) (stating that the
maximum sentence for a Class E Felony under Range III is six years). Because the trial court had
no choice but to sentence the defendant as a career offender in Cases S42,853 and S43,039, the
trial court was not required to apprise the defendant that he could be sentenced as a persistent
offender.
        Although neither party addresses the issue in its brief, the defendant did not stipulate to the
fact that he was a career offender as part of a negotiated plea with the state in Case S42,893, as the
defendant did not negotiate a sentence for Case S42,893, but rather entered an open plea of guilt with
the court. Although the defendant did not stipulate to the fact that he was a career offender in this
case, as once the trial court finds that the defendant has the requisite number of prior felony
convictions beyond a reasonable doubt, see Tenn. Code Ann. § 40-35-108(c) (1997), the trial court
has no choice but to sentence the defendant as a career offender, id.



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        The defendant does not dispute the validity of any of his six prior felony convictions.
Therefore, the trial court, upon finding that the defendant had been convicted of six prior felonies,
had no choice but to sentence the defendant as a career offender. The trial court properly apprised
the defendant of the maximum range of punishment for his sentence as a career offender, and thus
the defendant was properly apprised of all applicable sentencing considerations. Therefore, the
defendant’s assertion that the trial court erroneously denied his motion to withdraw his guilty pleas
based upon the court’s failure to properly apprise him of all sentencing considerations is without
merit.
                          Request for Probation or Alternative Sentencing
        The defendant argues that the trial court erroneously denied his request to be placed on
probation or, in the alternative, Community Corrections in Case S42,853. Specifically, the defendant
argues that he is a viable candidate for probation or alternative sentencing (1) because he is presumed
to be a suitable candidate for probation or alternative sentencing under Tennessee Code Annotated
Section 40-35-102(6); (2) because he committed the crimes as a result of his alcoholism, for which
he should receive treatment, not incarceration; (3) because his crimes were nonviolent, as no one was
seriously injured by his actions; and (3) because he would be incarcerated for a disproportionately
long amount of time for these nonviolent offenses if he is not granted probation or alternative
sentencing.
               Standard of Review for a Trial’s Court’s Sentence Determination
        This Court's review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is simply de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated Section 40-35-210, to consider the following
factors in sentencing:
        (1) the evidence, if any, received at the trial and the 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) evidence and information offered by the parties on the enhancement and
        mitigating factors in §§ 40-35-113 and 40-35-114; and
        (6) any statement the defendant wishes to make in his own behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b) (Supp. 2000).

       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) (1997). A trial court must presume that a defendant
sentenced to eight years or less and who is not an offender for whom incarceration is a priority is


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subject to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993).
It is further presumed that a sentence other than incarceration would result in successful
rehabilitation of the defendant unless rebutted by sufficient evidence in the record. Id. at 380.
        However, the presumption that a defendant is a suitable candidate for alternative sentencing
or probation may be rebutted by evidence to the contrary. Such evidence may include the following
sentencing considerations:
        (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) (1997). A court may also apply the mitigating and enhancement
factors set forth in Sections 40-35-113 and -114, as they are relevant to the Section 40-35-103
considerations. Id. § 40-35-210(b)(5). Finally, a court should consider the defendant’s potential or
lack of potential for rehabilitation when determining whether to grant an alternative sentence. Id.
§ 40-35-103(5).
                    Denial of Probation or Alternative Sentencing Was Proper
        The defendant argues that he is a suitable candidate for probation or alternative sentencing
on four grounds. However, we find the defendant’s arguments unpersuasive.
        First, the defendant argues that the trial court improperly failed to presume that the defendant
was a suitable candidate for alternative sentencing, as he meets the requirements of Section 40-35-
102(6), which sets out the criteria for this presumption. However, contrary to his contention, the
defendant does not meet the requirements for this presumption, as the presumption applies only to
either especially mitigated or standard offenders. See Tenn. Code Ann. § 40-35-102(6) (1997). The
defendant possesses a lengthy prior criminal history, which includes six felony convictions. Due to
these prior convictions, the defendant cannot be classified as an especially mitigated or standard
offender. See Tenn. Code Ann. § 40-35-109(1) (1997); Tenn. Code Ann. § 40-35-105(a)(3) (1997).
Therefore, the trial court did not err by refusing to presume that the defendant was a suitable
candidate for alternative sentencing or probation.
        Moreover, while the defendant was eligible to receive a probationary sentence because he
received a sentence of less than eight years, see Tenn. Code Ann. § 40-35-303(a) (Supp. 2000), the
defendant has the burden of proving that he is a suitable candidate for probation, see Tenn. Code
Ann. § 40-35-303(b) (Supp. 2000). The defendant has failed to meet that burden. As outlined supra,
when imposing a sentence of confinement, the trial court should consider whether:
        (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



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

Tenn. Code Ann. § 40-35-103(1) (1997). The defendant’s criminal record is extensive, containing
a total of forty-four criminal offenses, six of which are felonies. Additionally, in the past nine years,
courts have revoked the defendant’s parole twice and his probation twice. Furthermore, two of the
cases involved in this appeal involve crimes that the defendant committed while released on bond.
Therefore, at least two of the above criteria militate in favor of the trial court’s sentence of
incarceration, his lengthy criminal history and his tendency to violate terms of his probation, parole,
or bond. See id. §§ 40-35-103(1)(A), (C).
         Despite his lengthy criminal record, the defendant argues that his prior convictions are mostly
drug- or alcohol-related, thus evidencing his untreated alcoholism. The defendant alleges that he
should receive treatment for his alcoholism and that the trial court erred by refusing to consider the
defendant’s alcoholism as a mitigating factor. While a trial court may elect to consider a defendant’s
alcoholism as a mitigating factor, the court may also elect to give that mitigating factor less weight
than an enhancing factor. See, e.g., State v. Cross, No. E1998-00364-CCA-R3-CD, 1999 WL
1097968 at *1 (Tenn. Crim. App. at Knoxville, Dec. 6, 1999) (upholding a trial court’s denial of
alternative sentencing to a defendant who pled guilty, inter alia, to a DUI charge where the trial
court considered the defendant’s alcoholism as a mitigating factor, but afforded the enhancing factors
more weight). In the instant case, the record does not reflect that the trial court considered this
factor. However, upon reviewing the matter, we remain convinced that the denial of the defendant’s
request for alternative sentencing was appropriate, based upon the defendant’s prior criminal record.
         Additionally, the defendant alleges that he is a proper candidate for probation or alternative
sentencing because his crimes were nonviolent and resulted in no serious bodily injury. However,
our courts have consistently held that driving under the influence of an intoxicant creates a great
danger of risk to human life. See State v. Lawrence, 849 S.W.2d 761 (Tenn. 1993) (stating that
Tenn. Code Ann. § 39-11-503 outlaws an intoxicated person’s mere physical control of a vehicle
because an intoxicated person’s physical control of a vehicle renders it a lethal instrumentality); State
v. Young, No. M1998-00402-CCA-R3-CD,1999 WL 1179574 at *9 (Tenn. Crim. App. at Nashville,
Dec. 15, 1999) (stating that a defendant who has been convicted of multiple DUI’s may be sentenced
consecutively as a dangerous offender because of the inherent danger of driving under the influence,
quoting State v. Carl E. Campen, No. 01C01-9512-CC-00433, 1997 WL 661728 at *4 (Tenn. Crim.
App. at Nashville, Oct. 24, 1997)). Therefore, the defendant’s contention that his actions were not
dangerous because they did not result in bodily injury is not persuasive.
         Finally, the defendant argues that either he should be released on probation or serve an
alternative sentence, because, if he is denied probation, he will be required to serve an extraordinary
amount of time before he is eligible for probation. Specifically, the defendant states that he will be
required to serve 1,704 days before he will begin to serve his sentence for the case at issue, Case
S42,853. As stated above, the trial court’s sentencing determinations are entitled to a presumption
of correctness if the trial court properly considered the sentencing principles and all relevant facts
and circumstances. In the instant case, the trial court simply alluded to the defendant’s lengthy,
“terrible record” when denying the defendant’s request for probation or alternative sentencing.
However, we find that the sentence was properly imposed, and probation was properly denied. As


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discussed supra, the trial court properly categorized the defendant as a career offender per Section
40-35-108(1), in light of the defendant’s six prior felony convictions, and therefore, the sentence
imposed in Case S42,853, a six-year sentence, was properly imposed. Therefore, because the trial
court properly exercised its discretion, the defendant’s argument that the length of his sentence is too
great is without merit.
        In light of the above considerations, we hold that the defendant has failed to meet his burden
of proving that he is a suitable candidate for probation or alternative sentencing per Tennessee Code
Annotated Section 40-35-303(b).
                                              Conclusion
        For the forgoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.




                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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