         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                            JULY SESSION, 1998          October 30, 1998

                                                    Cecil W. Crowson
STATE OF TENNESSEE,           )                   Appellate Court Clerk
                                   C.C.A. NO. 01C01-9708-CC-00322
                              )
      Appellee,               )
                              )
                              )    FRANKLIN COUNTY
VS.                           )
                              )    HON . THOM AS W. G RAHAM
LARRY ALAN MORRIS,            )    JUDGE
                              )
      Appe llant.             )    (Sentencing)



FOR THE APPELLANT:                 FOR THE APPELLEE:

VICKI FRYE-FOWLKES                 JOHN KNOX WALKUP
116 Firs t Avenu e, N.W .          Attorney General and Reporter
Win cheste r, TN 37 398
                                   DARYL J. BRAND
                                   Senior Counsel
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243

                                   J. MICHAEL TAYLOR
                                   District Attorney General

                                   STEVEN M. BLOUNT
                                   Assistant District Attorney
                                   324 Dinah Shore Blvd.
                                   Win cheste r, TN 37 398



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION

      On May 15, 1997, Appellant, Larry Alan Morris, pled guilty to aggravated

assa ult by causing serious bodily injury with the use of a deadly weapon. The

parties agreed, as a part of the plea agreem ent, that Appellan t would serve a five

year senten ce. The mann er of service was left to the discretion of the trial cour t.

Fran klin Coun ty Circuit Court Judge, the Honorable Thomas W. Graham,

sentenced Appellant to five years imprisonment on July 21, 1997. At the request

of the State, the trial court noted on the judgment that the court suggested that

Appellant be placed in a special need s facility. Appella nt appe als from the length

of his sentence and a denial of community corrections placement or other

alternative s entenc e.

      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.




                                       FACTS




      The facts presented at the sentencing hearing revealed that on June 22,

1996, Appellant was at the Estill Springs M obile Hom e Park in Fran klin County,

drinking and hanging out with friends. An altercation arose between Appellant

and the victim, Gary Taylor, due either to Mr. Taylor’s lack of parking expertise

or due to Mr. Taylor yelling at his father, a friend of Appellant. Each participant

recounts that the other was the first to escalate to physical violenc e. Th e victim

remem bers hitting App ellant once or twice with a chain. Mr. Taylor’s father

attempted to break up the fight, but Mr. Taylor responded by telling Appellant that

he was going to get a gun and blow Appellant’s head off. Mr. Taylor went looking

for a gun, an d indee d found one, bu t laid it aside. Mr. Taylor then went to the


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trailer where Appellant was. In response to Mr. Taylor’s threats, Appellant

emerged from the trailer, wielding a steak knife. The two again became entangled

in an altercation. Both parties agree that M r. Taylor jum ped on Appella nt,

attempting to wrestle the knife from A ppellant’s grasp. A ppellant stabbe d Mr.

Taylor four times , caus ing se rious in jury to M r. Taylo r’s head and lung. Mr. Taylor

got up, ran into the road, and collapsed.



       Proof prese nted a t the se ntenc ing he aring s howe d that A ppella nt as a

lengthy history of mental health problems, some related to alcohol and marijuana

abuse. Appellant has been hospitalized several time s, and doctors have

prescribed antipsych otic med ication. Ap pellant’s w ife testified that when not

taking his medicine, A ppellant was, at tim es, delusional, wo uld loose his tem per,

and loose control of his actions . Accord ing to the presentence report, Appellant

has a h istory of non -comp liance with his treatm ent prog ram.



       Appellant also has a history of arrests for violent behavior, including an

incident where he shot into a newly completed house after a dispute with the

contractor, and an incident where he beat up a mechanic because he had

impro perly repaired App ellant’s wife’s car. Appellant has been convicted for

reckless driving, driving under the influence of an intoxicant, and driving with a

revoked license. A t the time o f this crime, charges were pending against

Appellant for driving under the influence of an intoxicant, driving on a revoked

license, and possession of marijuana.




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      When a defe ndan t com plains of his or her sen tence, w e mus t condu ct a

de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). The burden of showing that the sentence is improper is upon the

appealing party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission

Comments. This pre sump tion, howe ver, is cond itioned up on an a ffirmative

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

all the releva nt facts an d circum stance s. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). The Sente ncing Refo rm A ct also provid es tha t the trial c ourt sh all

place on the record either orally or in writing what enhancement or mitigating

factors it found, if any. These findings are crucial for review of the trial c ourt’s

decis ion up on ap peal.



                             LENGTH OF SENTENCE




      Appellant complains that he received th e “maxim um sen tence” for his

conviction. However, as a Range I offender convicted of a Class C felony the

maximum sente nce th e App ellant c ould re ceive w as six (6) years. In any event

any issue with respect to the length of sentence has been waived by the e ntry

and acceptanc e of Appellant’s g uilty plea wherein the parties agreed to a

sentence of five (5) years. Under these circumstances Appellant may not appeal

from the leng th of the sentenc e impose d. Tenn. R . Crim. P. 37(b)(2 )(ii).




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                   DENIAL OF ALTERNATIVE SENTENCING




      Tennessee       Code     Annotated     §40-35-103      sets   out    sentencing

considerations which are guidelines for determining whether or not a defendant

shou ld be incarcerated. These include the need “to protect society by restraining

a defendant having a long history of criminal conduct,” the need “ to avoid

depreciating the seriousness of the offense,” the determination that “confinement

is particularly suited to provide an effective deterrence to others likely to c omm it

similar offenses,” or the determination that “measures less restrictive than

confinement have frequently or recently been applied unsuccessfully to the

defendant.” Ten n. Co de An n. § 40 -35-1 03(1) . In dete rminin g the s pecific

sentence and the possible combination of sentencing alternatives, the court s hall

consider the followin g: (1) the e vidence , if any, received at the trial and the

sentencing hearing; (2) the presentence report; (3) the principles of sentencing

and arg umen ts as to sentencing alternatives; (4) the nature and characteristics

of the criminal conduct involved; (5) evidence and information offered by the

parties on the enhancemen t and mitigating factors in §§ 40-35-113 and 40-35-

114; and (6) a ny statem ent the de fendan t wishes to mak e in his o wn be half about

sentencing. Tenn. Code Ann.§ 40-35-210(b). In addition, the legislature

establish ed certa in senten cing princ iples whic h include the followin g:



      (5) In recog nition that sta te prison capacities and the funds
      to build and maintain them are limited, convicted felons
      committing the most severe offenses, possessing criminal
      histories evincing a clear disregard for the laws and
      mora ls of society, and evincing failure of past efforts at
      rehabilitation shall be given first priority regarding
      sentencing involving incarceration, and




                                    -5-
      (6) A defendant who does not fall within the parameters of
      subdivision (5) and is an espec ially mitigated or standa rd
      offender convic ted of a Class C, D, o r E felon y is
      presumed to be a favorable cand idate for alternative
      sentencing options in the absence of evidence to the
      contrary.


Tenn. Code Ann.§ 40-35-102.



      An examination of the statutes set out above, reveal that the intent of the

legislature is to encourage alternatives to incarceration in cases w here

defend ants are sentenced as standard or mitigated offenders convicted of C, D,

or E felonies. However, it is also clear that there is an intent to incarcerate those

defend ants whose criminal histories indicate a clear disregard for the laws and

morals of society and a failure of past efforts at rehabilitation.



      As a Range I standard offender convicted of a Class C felony A ppella nt is

presu mptive ly entitled to some form of sentencing apart from one involving

incarceration in the penitentiary. However, for the reasons discussed below a

placement in the community corrections program is not one of the alternatives for

which Appellant is eligible.



Community Corrections



      The Community Corrections Act of 1985 established a community based

alternative to incarceration for certain offenders and set out the minimum

eligibility requirem ents for a placement in the program. Tenn. Code Ann. Sec.

40-36-101 -- 306. One of the eligibility requirements for community corrections

is a non-viole nt crime . Tenn. Code Ann. Sec. 40-36-106(a)(3), (5), (6). Given the

                                         -6-
nature of the crime in the instant case and Appellant’s record of violent acts, he

is ineligible for community corrections unless he can dem onstra te that d espite his

general ineligibility for the program, he has “special needs” due to alcohol or drug

abuse, or mental health problems and that those needs can be better served in

the com munity rather than a co rrectional facility. Tenn. Code Ann. Sec. 40-36-

106(c).



      In this case the record reveals that Appellant does indeed have some

mental health problems due to alcohol and drug abuse. However, the record also

shows that com mun ity base d treatm ent pro gram s have failed w ith App ellant in

the past. Appellant has a history of non-compliance with such programs. Indeed,

after the offense in this case, Appellant again failed in treatment and was

hospitalized after threatening his daughter and a neighbor. The trial court was

entirely correct in finding that any special needs Appellant had would in fact be

better served in, rather than out of, the p enitentiary. T hus, it was not error to

deny Appellant a placement in community corrections.



Other Alternative Sentencing



      Desp ite his ineligibility for community corrections Appellant remains

presu mptive ly entitled to certain other forms of non-incarcerative sentencing.

Howeve r, as stated earlier, this presumption may be rebutted by proof that

confinem ent is nec essary:       (1) to protect society from a defendant with a

long history o f crimin al mis beha vior, (2) to avoid depreciating the seriousness of

the offense, (3) to deter others who are likely to commit similar crimes, or (4)

because measures less restrictive than confinement have been applied to the

                                         -7-
defendant without success. In the matter sub judice, the trial court found that

confinement was necessary to protect the public from Appellant’s violent

outbursts. This finding was based upon evidence of Appellant’s inability to control

his temper, to responsibly follow a cours e of ps ychiatr ic treatment, and to control

his alcohol consumption.



       The trial court further fou nd tha t confin eme nt is ne cess ary to a void

depreciating the seriousness of the offense. The trial court noted that Appellant

used a deadly w eapon in inflicting serio us injury tha t nearly killed h is victim. The

court also indicated that Appellant’s repe ated failure to successfully complete or

maintain treatment for his alcohol and mental problems demonstrates that

measures less restrictive than confin eme nt have not be en su cces sful in

rehabilitating Appellant. Upon this evidence, the trial court found that Appellant

was not a suitable candidate for alternative sentencing. We agree.



       Accordingly, the judgment of the trial court is affirmed.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
DAVID G. HAYES, JUDGE

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