            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE              FILED
                         MARCH 1998 SESSION
                                                       June 10, 1998

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 03C01-9705-CR-00196
            Appellee,           )
                                )    SULLIVAN COUNTY
VS.                             )
                                )    HON. PHYLLIS H. MILLER,
SCOTTY L. HAYCRAFT,             )    JUDGE
                                )
            Appellant.          )    (Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:


GERALD L. GULLEY, JR.                JOHN KNOX WALKUP
P.O. Box 1708                        Attorney General & Reporter
Knoxville, TN 37901
   (On Appeal)                       TIMOTHY F. BEHAN
                                     Asst. Attorney General
LESLIE HALE                          425 Fifth Ave., North
Asst. Public Defender                Cordell Hull Bldg., Second Fl.
P. O. Box 839                        Nashville, TN 37243-0493
Blountville, TN 37617
   (At Trial)                        H. GREELEY WELLS, JR.
                                     District Attorney General

                                     ROBERT H. MONTGOMERY
                                     Asst. District Attorney General
                                     P.O. Box 526
                                     Blountville, TN 37617




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                       OPINION



                 In July 1996, the Sullivan County grand jury indicted the defendant on one

count of violating the Motor Vehicle Habitual Offenders Act.1 He pled guilty and was

sentenced as a Range III persistent offender and was ordered to serve five years in the

Tennessee Department of Correction. In this appeal, the defendant argues that the trial

court erred when it denied his request to be placed on Community Corrections. After a

review of the record and applicable law, we find no error and affirm the judgment of the

court below.



                 When a defendant complains of his/her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, "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 Community Corrections Act of 1985 establishes a community based

alternative to incarceration for certain offenders and sets out the minimum eligibility

requirements. T.C.A. §§ 40-36-101 through -306. This Act does not provide that all

offenders who meet the standards are entitled to such relief. State v. Taylor, 744 S.W.2d

919, 922 (Tenn. Crim. App. 1987).



                 The purpose of the Tennessee Community Corrections Act of 1985 is to


       1
           T.C.A. § 55-10-616.

                                              2
establish a policy to punish selected, nonviolent felony offenders through community-

based alternatives to incarceration. The goals of the Community Corrections Act include

the following: maintaining safe and efficient community correctional programs, promoting

accountability of offenders to their local community, filling gaps in the local correctional

system through the development of a range of sanctions and services, reducing the

number of nonviolent felony offenders in correctional institutions and jails, and providing

“opportunities for offenders demonstrating special needs to receive services which

enhance their ability to provide for their families and become contributing members of their

community . . . .” T.C.A. § 40-36-104(1)-(5).



              Before one is entitled to community corrections, he or she must be eligible

pursuant to T.C.A. § 40-36-106(a). Mere eligibility, of course, does not end the inquiry.

We must also look to the Criminal Sentencing Reform Act of 1989. Under this Act, trial

judges are encouraged to use alternatives to incarceration. T.C.A. § 40-35-102(6) states

that “a defendant who does not fall within the parameters of subdivision (5) and 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.” Militating against alternative sentencing are the following

considerations:

               Confinement is necessary to protect society by restraining a
               defendant who has a long history of criminal conduct;
               [c]onfinement 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 [m]easures less restrictive than
               confinement have frequently or recently been applied
               unsuccessfully to the defendant...


T.C.A. §40-35-103(1)(A)-(C). See also State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).



                                             3
              In sentencing the defendant, the trial court noted that as a Range III

persistent offender, the defendant is not presumed to be a favorable candidate for an

alternative sentence. In denying the defendant’s request for Community Corrections, the

trial judge pointed to the defendant’s previous history of criminal convictions and the

defendant’s previous history of unwillingness to comply with the conditions of a sentence

involving release in the community. The record certainly supports these findings. The

defendant has a criminal record dating from 1984. He has been convicted of numerous

crimes including burglary, arson, robbery, forgery, passing bad checks, larceny, assault,

and theft. In addition, he has been convicted of numerous traffic offenses including

multiple convictions for driving on a revoked license and one conviction for driving while

under the influence. He has been given alternative sentences in the past and has failed

to comply with the requirements. Past sentences of probation have had to be revoked.



              The defendant argues that he should have been granted Community

Corrections so that he could receive treatment for his problems with alcoholism. However,

after looking at the defendant’s record, which included only one alcohol related offense,

the trial judge stated, “I find that you do not have a drug or alcohol problem, just from your

criminal history. You just have a problem of obeying the law.”



              The record clearly supports the trial court’s denial of Community Corrections.

The defendant’s lengthy criminal history and his failure to rehabilitate despite being given

numerous opportunities to do so are sufficient reasons to deny the defendant’s request.

Thus, the judgment of the court below is affirmed.



                                                   __________________________________
                                                   JOHN H. PEAY, Judge




                                              4
CONCUR:



_______________________________
PAUL G. SUMMERS, Judge



_______________________________
CORNELIA A. CLARK, Special Judge




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