         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs March 19, 2002

                 STATE OF TENNESSEE v. DONALD KING, JR.

                    Appeal from the Circuit Court for Blount County
          No. C-12150, 51, 12568, 12868, 12935-37  D. Kelly Thomas, Sr., Judge



                                 No. E2001-00836-CCA-R3-CD
                                        April 16, 2002

The Defendant, Donald King, Jr., pled guilty to three drug offenses (one Class C felony, one Class
D felony, and one Class A misdemeanor), two habitual motor vehicle offender offenses, driving
under the influence, and felony reckless endangerment. The plea agreement included an effective
five year sentence, with the manner of service to be determined by the trial court. After a hearing,
the trial court denied an alternative sentence and ordered the Defendant to serve his sentence in the
Department of Correction. The Defendant now appeals, contending that the trial court erred in
denying him an alternative sentence. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

Julie A. Rice, Knoxville, Tennessee, for the Appellant, Donald King, Jr.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Mike Flynn, District Attorney General; and William R. Reed, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                            OPINION

        At the sentencing hearing the Defendant testified that he suffers from several physical and
mental impairments. He is forty-one years old, married and a high school graduate. He is 100%
disabled and receives disability payments from Social Security. He suffers from alcohol abuse and
drug addictions, yet is taking two narcotics under a physician’s advice for pain management. He has
been in several rehabilitation programs, but continues to have problems with drugs and alcohol. At
the time of the sentencing hearing, the Defendant had been attending Narcotics Anonymous and
Alcoholics Anonymous for several weeks. On the day he pled guilty, he ingested cocaine, and had
also consumed alcohol after pleading guilty but before his sentencing hearing.
        The presentence report reveals an extensive criminal history of more than twenty convictions,
albeit involving relatively minor crimes. The presentence report also indicates that, after his
interview for the report, the Defendant drove away in spite of his revoked license. The Defendant
denied that he drove away from the interview.

       In sentencing the Defendant, the trial court ruled as follows:
                       I’ve reviewed the presentence report, I’ve listened to the
               testimony, looked at all the court files. Mr. King does need
               treatment, but I don’t think he’s appropriate for treatment in this
               community. The reason I say that is because he has been involved in
               many, many treatment programs. And during the course of that time,
               has managed to be convicted of DUI three times and assault three --
               four times. And is here in court today with a charge of reckless
               endangerment with .22 shots hitting a neighboring house.

                        I think Mr. King is a dangerous offender. He continues to use
               illegal drugs. He used cocaine the day he was up here to plead guilty
               and he continues to drink alcohol. There’s nothing in the record to
               make me think that he would succeed on probation at all. I’m going
               to recommend that he be housed at the Special Needs. He’s going to
               need medical treatment as well as substance abuse treatment. But I
               don’t think that any of that can be provided in the community and us
               count on him not being dangerous to himself or to some other person.

The Defendant now asks this Court to overturn the trial court’s decision and sentence him to an
alternative sentence involving split confinement and intensive probation.

        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. See 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).


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        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court 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 we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        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); State v. Lane, 3 S.W.3d 456, 462
(Tenn. 1999). Guidance regarding what constitutes “evidence to the contrary” which would rebut
the presumption of alternative sentencing can be found in Tennessee Code Annotated § 40-35-
103(1), which sets forth the following 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[.]

See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 170 (Tenn.
1991).

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. § 40-35-103(5).

        The record in this case supports the trial court’s denial of an alternative sentence. In spite
of repeated attempts at drug rehabilitation, and repeated convictions for drug offenses, the Defendant
continues to use illegal drugs. In spite of repeated convictions for driving under the influence, and
repeated convictions for driving with a revoked license and reckless driving, the Defendant continues
to drive. The Defendant has proven himself to be unable and/or unwilling to conform his behavior
to the law, in spite of numerous convictions, including, in addition to those already mentioned,
assault and vandalism. The record contains sufficient “evidence to the contrary” to rebut the
presumption that the Defendant is entitled to an alternative sentence. Accordingly, this issue is
without merit and we therefore affirm the judgment of the trial court.


                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE

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