         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                      FILED
                                   AT KNOXVILLE                     August 24, 1999

                                                                   Cecil Crowson, Jr.
                            JULY SESSION, 1999                     Appellate C ourt
                                                                       Clerk



STATE OF TENNESSEE,                )   C.C.A. NO. 03C01-9811-CR-00392
                                   )
      Appellee,                    )
                                   )
                                   )   SULLIVAN COUNTY
VS.                                )
                                   )   HON. R. JERRY BECK,
ANTHONY D. SANDERS,                )   JUDGE
                                   )
      Appe llant.                  )   (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SULLIVAN COUNTY


FOR THE APPELLANT:                     FOR THE APPELLEE:

THOMAS R. BRANDY                       PAUL G. SUMMERS
245 Broad Street                       Attorney General and Reporter
Kingsport, TN 37660
                                       ERIK W. DAAB
JULI E A. M ART IN (O n App eal)       Assistant Attorney General
P.O. Box 426                           425 Fifth Avenu e North
Knoxville, TN 37901-0426               Nashville, TN 37243

                                       GREELEY W ELLS
                                       District Attorney General

                                       TERESA MURRAY-SMITH
                                       MARY K. HARVEY
                                       Assistant District Attorneys General
                                       Blountville, TN 37617




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION
       The Defen dant, An thony D . Sande rs, appe als as of righ t pursua nt to Rule

3 of the Tennessee Rules of Appellate Procedure. He wa s con victed, u pon h is

plea of guilty, of vehicular homicide by intoxication,1 a Class C felony at the time

the offense was committed.2 The agreed sentence was the statutory minimum

of three yea rs as a R ange I standard offender. The manner of service of the

sentence was left to the discretion of the trial judge. The judge ordered that the

sentence be served in the Department of Correction. The Defendant appeals,

arguing that the trial judge erred b y not allowing his sen tence to be se rved on

probation or allowing some other se ntencing alternative to incarc eration. W e

affirm the ju dgme nt of the trial co urt.



       The Defendant was the drive r of an a utom obile in volved in a on e-veh icle

acciden t. The passenger of the vehicle, who w as the Defe ndan t’s brother-in-law

at the tim e, was thrown from th e vehic le and killed w hen th e vehic le ran off the

road and ove rturned. S hortly after the acciden t, the Defendant gave conflicting

statem ents concerning whether it was the Defendant or his passenger who was

driving.    The Defendant’s blood alcohol content was determined to be .22

percen t.



       When an accused challenges the length, ran ge, or m anner o f service of a

sentence, this Court has a duty to conduct a de novo review of th e sente nce with


       1
           Tenn. Code Ann. § 39-13-213(a)(2)(1991).
       2
          The legislature has subsequently amended the vehicular homicide statute, providing
that a conviction involving intoxication constitutes a Class B felony. Tenn. Code Ann. § 39-13-
213(b)(1995).

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a presumption that the determinations made by the trial co urt are co rrect. Tenn.

Code Ann. § 40-3 5-401 (d). Th is pres ump tion is “conditioned up on the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



      When conducting a de novo review of a sentence, this Court must

consider: (a) the e videnc e, if any, received at the trial and sentencing hearing; (b)

the presentence re port; (c) the p rinciples o f sentenc ing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Tenn . Code Ann. §§ 40-35-1 02, -103 , -

210; State v. Thomas, 755 S.W .2d 838, 844 (Tenn. Crim . App. 1988 ).



      If our review reflects that the trial court followed the statutory sentencing

procedure, that the co urt imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then w e may no t modify the sen tence even if we would have

preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



      Tennessee Code A nnotated § 4 0-35-102 outlines whe n alternative

sentencing is appropriate. A defendant who is "an especially mitigated or

standard offender convicted of a Class C, D, or E felony is presumed to be a

                                         -3-
favora ble candida te for alternative sentencing options in absence of evidenc e to

the contrary." Tenn. Code Ann. § 40-35-102(6). Furthermore, the trial court must

presume that a defendant sentenced to eight years or less and not an offender

for whom incarceration is a priority is subject to alternative sentencing and that

a sentence other than incarceration would result in successful rehabilitation

unless sufficient evidence rebuts the presumption.



      Even though probation must be considered, a defendant is not

autom atically entitled to proba tion as a m atter of law. Fletcher, 805 S.W.2d at

787. Factors such as the defendant's potential for rehabilitation, the nature and

seriousness of the offense, and deterrence o f others in committing the crime, and

whether the record reflects multiple or recent unsuccessful sentencing measures

other than confinement, can be us ed to rebut the p resump tion that alternative

senten cing is ap propriate . Id. at 788-89.




      The sentencing of this Defendant is governed by the Sentencing Reform

Act of 1989. Through the enactment of Tennessee Code Annotated § 40-35-102,

the legislature establishe d certain senten cing principles which include the

following:

             (5) In recognition that state prison capac ities and the funds
      to build and m aintain them are limited, convicted felons committing
      the most severe offenses, possessing criminal histories evincing a
      clear disregard for the laws and morals of society, and evincing




                                        -4-
       failure of past effo rts at rehab ilitation shall be given first prior ity
       regardin g sente ncing invo lving incarc eration;

Tenn. C ode Ann . § 40-35-102 (5).


       The Defen dant wa s convicte d of a Class C felony which carries with it the

statutory presumption that he is a favorable candidate for alternative sentencing

options in the abs ence o f evidence to the contrary. Even though a Class C felony

may be qu ite a se rious o ffense , the leg islature has provided that there is a

presu mptio n of eligibility for alternative sentencing options for all Class C

felonies. Also, the principles of sentencing reflect that the sentence should be no

greater than that dese rved for the offense committed and should be the least

severe measure necessary to achie ve the p urpos es for w hich th e sen tence is

imposed. Tenn. Code Ann. § 40-35-103(2), (4). The court should also consider

the poten tial for reh abilitatio n or trea tmen t of the D efend ant in d eterm ining the

sentence a lternative. Tenn. C ode Ann . § 40-35-103 (5).



       At the time of the sentencing h earing, the De fendant was twenty-four years

old and married. He dropped out of high school during the tenth grade. He had

one child by a prior marriage, and he was providing some support for this child.

He had held a variety of jobs a nd ha d app arently been regularly employed since

the time he dropped out of school. At the time o f the ac ciden t which led to h is

conviction for vehicular homicide, he had no history of criminal convictions,

although he admitted to a history of alcohol usage while under age and also to

a history of some marijuana usage.



       In determining that the State had presented su fficient eviden ce to

overcome the presumption that the Defendant was a favorable candidate for

                                           -5-
alternative sentencing options, the trial judge noted the Defendant’s history of

illegal drug usage, observed that the Defendant had been untruthful to the police

officers shortly after th e accide nt occurred, and expressed his opinion that

confinement was necessary to avoid depreciating the seriousness of the offense

and to provide deterren ce. Beyond these conc erns, howe ver, it is obvious from

this record that the trial judge was concerned primarily with the D efend ant’s

condu ct subsequent to the accident which caused the death of the victim.



       The vehicular homicide occurred on February 26, 1995. The Defendant

was found guilty of a DUI which occurred on April 25, 1996. While on probation

for the DUI conviction he was found guilty of driving on a revoked license on June

15, 1996 and ag ain on F ebruary 19, 199 7. At the sentencing hearing in October

of 1998, a witness testified that she had observed the De fenda nt drivin g, aga in

with his license revoked, in July of 1998. We believe that these actions by the

Defen dant, which obviously reflect adversely on the Defendant’s potential for

rehabilitation, weigh heavily in favor of upholding the presumptively correct

discretion exercised by the trial judge in this case.3



       The record in this ca se affirm atively shows that the trial judge considered

the sentencing principles and all relevant facts and circumstances. Trial judges

are traditionally vested with broad discretion ary autho rity in sentencing matters.

Based upon our careful review of this record, and particularly in view of the

Defe ndan t’s continued disregard for the laws of this state, we are unab le to



       3
           The record on appeal reflects that the Defendant was sentenced on October 16,
1998. The Defendant testified at that time that he no longer consumed alcoholic beverages.
He was released on appeal bond. On November 21, 1998 he was arrested on a charge of
public intoxication which led to the revocation of his appeal bond.

                                           -6-
conclude that the trial judge erred or abused his discretion by ordering that the

Defe ndan t’s sentence be served in the Department of Correction. The judgment

of the trial court is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




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