             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                Assigned on Briefs December 18, 2007

              STATE OF TENNESSEE v. MICHAEL ANTHONY SALES

                           Appeal from the Circuit Court for Bedford County
                             Nos. 16,142 and 16,143    Lee Russell, Judge



                       No. M2007-00743-CCA-R3-CD - Filed February 6, 2008


The defendant, Michael Anthony Sales, pleaded guilty to two counts of violating an habitual traffic
offender order and was sentenced to consecutive terms of five years and six months in the
Department of Correction for each offense. On appeal, the petitioner argues that the sentence he
received is excessive and contrary to law. We affirm the sentence of the trial court.

                    Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which ALAN E. GLENN and D.
KELLY THOMAS JR., JJ., joined.

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Michael Anthony Sales.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee.


                                                      OPINION

               On November 20, 2006, the Bedford County Grand Jury indicted the defendant on
two counts of violating an habitual traffic offender order, see T.C.A. § 55-10-613. The defendant
submitted an open guilty plea to both offenses on January 29, 2007. On March 23, 2007, a
sentencing hearing was held, and the trial court sentenced the defendant as a Range III, persistent
offender to five years and six months in the Department of Correction for each offense. The trial
court ordered the sentences be served consecutively for an effective sentence of eleven years.1




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          The trial court also sentenced the defendant to an additional ten day sentence for contempt of court to be served
consecutively with the habitual motor offender sentences. The contempt sentence was not appealed by the defendant.
               At the sentencing hearing, the State submitted the pre-sentence investigation report
and copies of the defendant’s prior conviction judgments. The State noted the defendant had five
prior felony convictions, which put him in the persistent offender category.

                 The defendant testified that he was from Lincoln County and had been living in
Shelbyville for most of his life. He testified that he worked for James Ferrell for three years before
his current incarceration and would return to work for him if he were released. The defendant
testified that he has local family and a place to live if released. The defendant testified that prior to
being incarcerated he lived with his wife, three daughters, and five grandchildren. During his
incarceration, his wife provided the family’s sole source of income.

                The defendant testified that he took full responsibility for his prior criminal record
but stressed, “I’m not that person anymore.” When questioned about his most recent domestic
assault charge, the defendant testified that he had three teenage girls and can be an overprotective
father who goes “a little bit too far.”

                The defendant admitted he had no reason to be driving when he violated the habitual
traffic offender order the first time. He testified the second offense occurred because he thought his
daughter was going into labor, and his wife was not home to drive her to the emergency room. The
defendant testified that he was stopped on his way home from the hospital.

                 The defendant testified that he was on probation for domestic violence when he
committed the habitual traffic offender violations in this case. He also admitted that he was on bond
for the first habitual traffic offender offense when he committed the second habitual traffic offender
offense.

               The defendant’s wife, Angela Sales, testified that she currently had three daughters
and five grandchildren living in the family home. Ms. Sales testified that the defendant helped to
support the family financially before being incarcerated, but she had been the only income provider
since the defendant had been incarcerated. She stated the children needed the defendant as a father
figure.

               The defendant filed a timely appeal, but in his brief argues only generally that the
sentence imposed is “excessive and contrary to law.” The State argues that the trial court properly
sentenced the defendant.

                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. T.C.A. § 40-35-401(d) (2006). 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). “The burden of showing that the sentence is improper is upon the appellant.” Id. In
the event the record fails to demonstrate the required consideration by the trial court, review of the


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sentence is purely de novo. Id. If appellate review reflects that the trial court properly considered
all relevant factors and its findings of fact are adequately supported by the record, this court must
affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                 In making its 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 guilty
plea and the sentencing hearings; (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 made in his behalf about sentencing, and (7) the potential
for rehabilitation or treatment. T.C.A. § 40-35-210(a), (b); -103(5); 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.” T.C.A. § 40-35-102(6) (2006). Nevertheless, a defendant who
commits “the most severe offenses, possesses a criminal history evincing a clear disregard for the
laws and morals of society, and [has failed] past efforts at rehabilitation” does not enjoy the
presumption. Id. § 40-35-102(5), (6); see State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001).
Furthermore, a defendant’s potential for rehabilitation or lack thereof should be examined when
determining if an alternative sentence is appropriate. T.C.A. § 40-35-103(5) (2003). Sentencing
issues are to be determined by the facts and circumstances made known in each case. See State v.
Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

                The record in this case reflects that the trial court engaged in a proper review of the
relevant sentencing principles and considerations. Accordingly, its sentencing determinations are
entitled to the presumption of correctness.

                As a persistent offender, the defendant in the present case did not enjoy the
presumption of favorable candidacy for alternative sentencing. See T.C.A. § 40-35-102(6). In this
situation, the state had no burden to justify a sentence involving incarceration. See, e.g., State v.
Michael W. Dinkins, No. E2001-01711-CCA-R3-CD (Tenn. Crim. App., Knoxville, Apr. 26, 2002);
State v. Joshua L. Webster, No. E1999-02203-CCA-R3-CD (Tenn. Crim. App., Knoxville, Dec. 4,
2000); see T.C.A. § 40-35-103(1). Thus, the burden of establishing suitability for alternative
sentencing rested upon the defendant, and he has failed to demonstrate on appeal that he carried this
burden below.

               The record supports the sentence of the trial court. The trial court properly found the
defendant to be a persistent offender because of his five prior felony convictions. See T.C.A. § 40-
35-107(a)(1). As a persistent offender he was subject to a sentence of four to six years. See T.C.A.
§ 40-35-112(c)(5). The record of the sentencing hearing shows the trial court followed the


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sentencing process outlined in Tennessee Code Annotated § 40-35-210. The trial court properly
found two enhancement factors: the defendant’s prior criminal history and his failure to comply with
the conditions of a sentence involving release into the community. See T.C.A. § 40-35-114(1), (8).
The only mitigating factor found by the court was the fact that the defendant’s criminal conduct
neither caused nor threatened bodily harm, see T.C.A. § 40-35-113(1), and was properly given little
weight. Consecutive sentencing in this case was mandatory because the second offense in this case
was committed while the defendant was on bond. See T.C.A. § 40-20-111(b).

              Furthermore, the record establishes a solid basis for the denial of alternative
sentencing. The judge explicitly pointed out that the defendant’s prior criminal record was the
primary reason for denying alternative sentencing. At one point, the judge said “[he has] been
committing felonies for over 20 years.” We agree with the trial court and need not belabor our
explanation.

              The defendant has not demonstrated any reversible error committed by the lower
court and we accordingly affirm the judgments below.

                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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