           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

          STATE OF TENNESSEE v. CHRISTOPHER D. THACKER

                 Direct Appeal from the Circuit Court for Sequatchie County
                              No. 3756 J. Curtis Smith, Judge



                    No. M1999-01426-CCA-R3-CD - Decided June 30, 2000


The defendant pled guilty to vehicular assault as the result of intoxication and driving on a revoked
license. The trial court imposed a three-year sentence for the vehicular assault, and, on appeal, the
defendant contends that the trial court erred by refusing the defendant's request for a community
corrections sentence. We conclude that the trial court did not abuse its discretion and affirm the
judgment.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

WADE, P.J., delivered the opinion of the court, in which RILEY and OGLE , JJ., joined.

B. Jeffery Harmon, Assistant Public Defender, Jasper, Tennessee, for the appellant, Christopher D.
Thacker.

Paul G. Summers, Attorney General & Reporter, Clinton J. Morgan, Assistant Attorney General, and
Stephen Strain, District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                 The defendant, Christopher D. Thacker, entered pleas of guilt to vehicular assault as
the result of intoxication, a Class D felony, and driving on a revoked license. While the record does
not include the sentence on the latter offense, the trial court imposed a Range I, three-year sentence
for the vehicular assault. Six other counts, which included two more charges of vehicular assault,
two charges of driving under the influence (including driving under the influence, third offense), one
charge of driving on a revoked license (second offense), and one charge of failure to remain at the
scene of an accident involving death or personal injury, were retired upon the defendant's plea. In
this appeal of right, the defendant contends that the trial court erred by refusing to allow his
vehicular assault sentence to be served in a community corrections program. While the record is not
complete because of the failure on the part of the defendant to include a transcript of the hearing on
the guilty plea, the evidence available suggests that the trial court had a sound basis for the denial
of community corrections.
               A recitation of the facts is included in the report filed by the Department of
Correction. On February 16, 1998, the defendant, who acknowledged that he had been drinking
alcohol, drove his 1985 Camaro head-on into a 1995 Ford Escort. The accident took place in the
northbound lane of Highway 127 in Sequatchie County. The defendant was driving in a southerly
direction. As a result of the accident, Rebecca Goss (the driver of the Ford Escort), Elaine Lofty,
and Mary Rigby were injured. Ms. Goss suffered several broken toes on her left foot. The vehicle
she was driving, which was owned by her father, was a total loss. The defendant left the scene on
foot and was ultimately found almost two miles away. He initially contended that an unknown
person had been driving his vehicle.

               The trial court found that the defendant had a prior history of criminal behavior, that
there was more than one victim of the offense, and that the defendant had a previous history of
unwillingness to comply with conditions involving release in the community. See Tenn. Code Ann.
§ 40-35-114(1), (3), (8). The trial court observed that the defendant, nearly 26 years of age at the
time sentence was imposed, had a lengthy history of arrests, many of which were alcohol related,
which began at age 19 and continued until this offense. After observing that the defendant was
already incarcerated in the "workhouse" because of a domestic violence situation at the time of
sentencing, the trial court imposed a sentence of three years, denied any consideration for probation,
and concluded that a Department of Correction sentence was necessary to protect society from future
criminal conduct.

                When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review with a presumption that the determinations
made by the trial court 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); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate
factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of the sentence.

                Our review requires an analysis of (1) the evidence, if any, received at the trial and
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments
of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any
mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and
(7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case
demonstrates that the trial court made adequate findings of fact.

                Among the factors applicable to probation consideration are the circumstances of the
offense; the defendant's criminal record, social history and present condition; and the deterrent effect
upon and best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285 (Tenn.1978).

                Especially mitigated or standard offenders convicted of Class C, D, or E felonies are,

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of course, presumed to be favorable candidates "for alternative sentencing options in the absence of
evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none
of which apply here, probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). Moreover, in Ashby, our supreme
court encouraged the grant of considerable discretionary authority to our trial courts in matters such
as these. 823 S.W.2d at 171. See State v. Moss, 727 S.W.2d 229, 235 (Tenn.1986). "[E]ach case
must be bottomed upon its own facts." State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.
1987). "It is not the policy or purpose of this court to place trial judges in a judicial straight-jacket
in this or any other area, and we are always reluctant to interfere with their traditional discretionary
powers." Ashby, 823 S.W.2d at 171.

               One of the purposes of the Community Corrections Act of 1985 was to provide an
alternative means of punishment for "selected, nonviolent felony offenders in front-end community
based alternatives to incarceration . . . ." Tenn. Code Ann. § 40-36-103(1). The Community
Corrections sentence provides a desired degree of flexibility that may both benefit the defendant and
serve legitimate societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn.1990). Even in cases
where the defendant meets the minimum requirements of the Community Corrections Act of 1985,
the defendant is not necessarily entitled to be sentenced under the Act as a matter of law or right.
Taylor, 744 S.W.2d at 922. The following offenders are eligible for Community Corrections:

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

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

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

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

                       (5) Persons who do not demonstrate a present or past pattern
                of behavior indicating violence;

                        (6) Persons who do not demonstrate a pattern of committing
                violent offenses; and

                         (7) Persons who are sentenced to incarceration or on escape
                at the time of consideration will not be eligible.


Tenn. Code Ann. § 40-36-106(a) (emphasis added).

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               Additionally, there is a "special needs" category of eligibility for Community
Corrections:

               Felony offenders not otherwise eligible under subsection (a), and who
               would be usually considered unfit for probation due to histories of
               chronic alcohol, drug abuse, or mental health problems, but whose
               special needs are treatable and could be served best in the community
               rather than in a correctional institution, may be considered eligible for
               punishment in the community under the provisions of this chapter.

Tenn. Code Ann. § 40-36-106(c) (emphasis added). To be eligible for Community Corrections
under subpart(c), the defendant must first be eligible for probation under Tenn. Code Ann. § 40-35-
303. State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).

               The defendant complains that due to his chronic alcohol and drug abuse and mental
health problems, he qualified under the special needs section and should have been sentenced to a
community corrections program. In response, the state first points out that the defendant has failed
to include in the record a transcript of the guilty plea and argues that this court should treat the
judgment of the trial court as presumptively correct. In the alternative, the state contends that a
community corrections sentence was properly denied due to the defendant's prior criminal history,
an escape from the workhouse in September of 1998, and the escalating nature of his criminal
conduct since the age of 19.

                Initially, the record is incomplete. The failure to include the guilty plea hearing
transcript requires this court to presume that any missing information would have supported the
three-year sentence to the Department of Correction. See State v. Keen, 996 S.W.2d 842 (Tenn.
Crim. App. 1999); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (stating that when
necessary parts of the record are missing on appeal, this court must presume that the trial court's
decision was correct). More importantly, the investigative report provided by the Department of
Correction, which is included in the record in its entirety, supports the decision of the trial court.
Although the defendant has no prior felony convictions, he has been convicted of theft of property
under $500.00, two instances of driving under the influence, driving on a revoked license, assault,
possession of drug paraphernalia, evading arrest, resisting arrest, misdemeanor escape, public
intoxication, and underage drinking. While the defendant was on probation on the theft offense, he
violated the terms of his release, resulting in a revocation. The defendant was also on probation
when this offense was committed. While on bail for this offense, the defendant was charged with
and eventually convicted of the assault, possession of drug paraphernalia, escape, and evading arrest
offenses. The defendant was in custody at the time sentence was imposed.

                The Department of Correction report indicates that the defendant acknowledges a
problem with alcohol. Although he denies having any drug dependency, he has used marijuana and
barbiturates. On the positive side, while in jail awaiting the disposition of this case, he began to
participate in a substance abuse treatment program.


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               The defendant is not married, has no children, and resides with his grandfather. His
work history is minimal and he has no assets. In our view, the trial court did not abuse its discretion
by denying the defendant a community corrections sentence. State v. Grigsby, 957 S.W.2d 541, 547
(Tenn. Crim. App. 1997). The defendant has been unable to meet his burden of showing that his
special needs can be better addressed in a community corrections program. The failure of the
defendant to respond in a positive fashion to prior attempts at rehabilitation supports the conclusion
reached by the trial court. Prior alternative sentences have been unsuccessful.

               Accordingly, the judgment is affirmed.




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