         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs February 25, 2003

              STATE OF TENNESSEE v. BUREN EFFORD LANEY

                     Appeal from the Criminal Court for Sullivan County
                             No. S45,384   R. Jerry Beck, Judge



                                  No. E2002-01579-CCA-R3-CD
                                         March 27, 2003

Buren E. Laney, convicted on his guilty plea to the offense of violation of an habitual traffic offender
order, appeals from the lower court’s imposition of a six-year incarcerative sentence. Because we
disagree with Laney, a career offender, that the sentence imposed was improper, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER , JJ., joined.

Richard A. Spivey, Kingsport, Tennessee, for the Appellant, Buren Efford Laney.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and B. Todd Martin, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

               By his own admission, the defendant, who was 60 years old at the time of sentencing,
drove a vehicle on a public roadway in Sullivan County despite the existence of an habitual traffic
offender order prohibiting him from doing so. The defendant pleaded guilty to the offense, a Class
E felony, see Tenn. Code Ann. § 55-10-616(b) (1998), but the length and manner of service of the
sentence was not addressed by the plea agreement.

                The evidence before the court at the sentencing hearing consisted solely of the
presentence report and the stipulation of facts recited at the plea acceptance hearing. The defendant
did not dispute that he had sufficient prior convictions to qualify him for career offender
classification. See id. § 40-35-108 (1997) (career offender). He likewise did not dispute that he was
on parole at the time he committed the offense in question. The defendant conceded that he
possessed a very lengthy criminal history, but he requested that the court allow him some
dispensation in sentencing due to his advanced age and his success for a number of years on parole.
Defense counsel also informed the court, without offering actual proof,1 that there had been two prior
attempts to have the defendant’s driving privileges restored, although those attempts were
unsuccessful due to the defendant’s inability to pay the fines.

                After hearing the arguments of the parties, the court imposed a six-year sentence and
found that the defendant’s abysmal prior record, which the court classified as “a world class prior
record situation,” disqualified him for any form of alternative sentencing. Thus, the court ordered
that the sentence be served in the Tennessee Department of Correction. Based upon the defendant’s
status as a parolee at the time of the offense, the court also ordered the sentence be served
consecutively to the sentence for which the defendant was on parole. See Tenn. R. Crim. P. 32(3)(A)
(mandatory consecutive sentencing for felony committed while on parole for a felony).

               In this appeal, the defendant claims that the trial court should have granted him
probation or some other form of alternative sentencing. He takes issue with the court’s application
of enhancement and mitigating factors and its balancing of those factors. He likewise challenges the
sufficiency of the state’s showing that the nature and circumstances of the offense warranted a
sentence of confinement.2 For the reasons that follow, we hold that the defendant’s appellate
challenge is without merit.

                We begin with a review of the relevant law. In making a felony sentencing
determination, the trial court, at the conclusion of the sentencing hearing, determines the range of
sentence and then determines the specific sentence and the propriety of sentencing alternatives by
considering (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, (6) any statements the defendant wishes
to make in the defendant's behalf about sentencing, and (7) the potential for rehabilitation or
treatment. See Tenn. Code Ann. § 40-35-210(a), (b), -103(5) (1997) and (Supp. 2002); State v.
Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

                A defendant who "is 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 options in the
absence of evidence to the contrary." Tenn. Code Ann. § 40-35-102(6) (1997). However, a
defendant who commits “the most severe offenses, possess[es] a criminal histor[y] evincing a clear
disregard for the laws and morals of society, and [has failed] past efforts at rehabilitation” does not



         1
             See Trotter v. State, 508 S.W.2d 808, 809 (Tenn. Crim. App. 197 4) (statements of counsel are not evidence).

         2
          The defendant does not challenge the length of sentence imposed by the trial court. Indeed, such a challenge
would be without legal foundation. The law provides that a career offender shall receive the maximum sentenc e within
the Range III classification , see Tenn. Co de A nn. § 4 0-35 -108 (c) (1997 ), which in this case is six years, see id. § 40-35-
112(c)(5) (four-to-six-year sentence appropriate for Range III offender convicted of Class E felony).



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enjoy the presumption. See id. § 40-35-102(5), (6) (1997); State v. Fields, 40 S.W.3d 435, 440
(Tenn. 2001). A sentence involving confinement is appropriate when

       (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 especially 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)(A) - (C) (1997).

               Furthermore, the defendant’s potential for rehabilitation or lack thereof should be
examined when determining whether an alternative sentence is appropriate. Id. § 40-35-103(5)
(1997). Sentencing issues are to be determined by the facts and circumstances presented in each
case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

                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 of the record with a presumption that the
determinations made by the trial court are correct. See 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). Likewise, the trial court has an affirmative duty to state on the
record, either orally or in writing, which enhancement and mitigating factors it found and its findings
of fact. Tenn. Code Ann. §§ 40-35-209(c), 40-35-210(f) (Supp. 2002); State v. Troutman, 979
S.W.2d 271, 274 (Tenn. 1998); State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim. App. 1999).

               The record before us is deficient in reflecting that the lower court considered
enhancement and mitigating factors or made any findings relative to the factors. For this reason, we
will conduct a de novo review unaccompanied by the presumption of correctness.

                 The defendant nominally challenges the lower court’s application of an enhancement
factor for the defendant’s prior criminal history. See Tenn. Code Ann. § 40-35-114(2) (Supp. 2002).
The defendant’s record of convictions, even absent those used to qualify him for career offender
classification, is one of the most pervasive and dismal that this court has had the occasion to review.
This factor applies and is entitled to great weight.

               The defendant committed this offense while he was on parole. His sentence receives
enhancement on this basis. See id. § 40-35-114(14)(B) (Supp. 2002). Given the extent of the
defendant’s prior involvement in correctional settings, this factor is entitled to substantial weight.




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                Turning to mitigating factors, the defendant argues that the court should have
considered that his conduct neither caused nor threatened serious bodily injury, his age, his poor
health, and the support of his family. See id. § 40-35-113(1), (13) (1997). First of all, there is no
evidence about the manner in which the defendant was operating the vehicle on the occasion in
question. Furthermore, because his criminal history consists in large measure of disregard of rules
of the road, we are not inclined to mitigate his sentence for lack of actual or threatened serious bodily
injury. The defendant’s operation of a vehicle has been barred by the State of Tennessee, and he
should not receive any mitigating credit simply because the record does not show that he endangered
or injured anyone in the course of his illegal conduct.

                We are similarly unimpressed by the defendant’s bid for mitigation based upon his
age, poor health, and family support. He has not proposed how or why we should consider his age
of 60 at the time of sentencing to be worthy of mitigation. He likewise has not proposed to us how
or why his self-reported “fair” health should afford him mitigation. He is apparently still young
enough and healthy enough to violate the habitual traffic offender order against him, and his past
criminal record as well as the commission of the present offense illustrate his inclination to do so.
Likewise, his family support is only marginally demonstrated by the statement in the presentence
report that he will live with his sister if given non-incarcerative sentencing. The record is devoid of
any evidence that his family is willing to support him in rehabilitative efforts. Mitigation credit is
inappropriate for these proposed factors.

               Having considered the enhancement and mitigating factors, we turn more squarely
to the question of alternative sentencing. As a career offender, the defendant is not entitled to the
presumption of favorable candidacy for alternative sentencing. See id. § 40-35-102(6) (1997).
Moreover, the defendant is an appropriate candidate for a sentence of confinement for other reasons.
The defendant’s long history of criminal conduct is pervasive and extensive. Also, the fact that he
has declined the opportunity to reform his conduct on numerous past occasions, through both non-
incarcerative and incarcerative means, supports an order of confinement. See id. § 40-35-103(1)(A),
(C) (1997). Likewise, it would be ludicrous to suggest, at this late date, that the defendant possesses
any measurable potential for rehabilitation. See id. § 40-35-103(5) (1997).

                Given all of these factors, we have no hesitation whatsoever in concluding that the
lower court appropriately ordered that the defendant serve his sentence in the Department of
Correction. While it may be regrettable that the defendant will spend at least a portion of his senior
years in an incarcerative setting, the unfortunate facts of this case are of his own making. We cannot
fathom how a different result might be reached given those facts. Cf. Jerry Lynn Hopson v. State,
No. 03C01-9308-CR-00249, slip op. at 3-4 (Tenn. Crim. App., Knoxville, Sept. 27, 1994) (“it is
inconceivable that a career offender would be eligible for an alternative to confinement”), perm.
app. denied (Tenn. 1995).

               In so holding, we have rejected the defendant’s contention that the evidence does not
support a finding that the crime was “especially violent, horrifying, shocking, reprehensible,
offensive or otherwise of an excessive or exaggerated degree” such as would warrant a denial of


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probation. The law to which the defendant somewhat obliquely refers is simply inapplicable in this
case. It is true that the circumstances of the offense, or in other words, the need to avoid depreciating
the seriousness of the offense, is an appropriate basis for denying an alternative sentence, not merely
a probationary sentence. See State v. Charles Chesteen, No. E1999-00910-CCA-R3-CD, slip op.
at 11, (Tenn. Crim. App., Knoxville, June 8, 2000); State v. Housewright, 982 S.W.2d 354, 357
(Tenn. Crim. App. 1997). In that regard, the circumstances of the offense cannot be used as the sole
basis for denying an alternative sentence unless they are “especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree.” Housewright, 982
S.W.2d at 357 (citations omitted) (emphasis added). The sole basis for denying an alternative
sentence in this case is not the nature and circumstances of the offense. The defendant in this case
has earned his incarcerative sentence for a multitude of reasons.

                We therefore affirm the lower court’s imposition of incarcerative sentencing.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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