         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 7, 2005

                 STATE OF TENNESSEE v. CLAUD SIMONTON

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 03-01528 James C. Beasley, Jr., Judge



                   No. W2004-02406-CCA-R3-CD - Filed October 3, 2005


Defendant, Claud Simonton, pled guilty to one count of vehicular homicide by intoxication, a Class
B felony, and one count of simple possession of cocaine, a Class A misdemeanor. Pursuant to a plea
agreement, Defendant agreed to a minimum sentence of eight years as a Range I, standard offender,
for his vehicular homicide conviction, and an eleven month, twenty-nine day sentence for his
possession conviction, without an agreement as to the manner of service of the sentences. The trial
court ordered Defendant to serve his sentences concurrently for an effective sentence of eight years.
Following a sentencing hearing, the trial court ordered Defendant to serve his eight-year sentence
in confinement. In this appeal, Defendant argues that the trial court erred in not granting
Defendant’s request for alternative sentencing. Following a thorough review of the record, we affirm
the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID
G. HAYES, JJ., joined.

Robert Wilson Jones, District Public Defender; Garland Erguden, Assistant Public Defender; and
Diane Thackery, Assistant Public Defender, Memphis, Tennessee, for the appellant, Claud
Simonton.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                            OPINION

       In January 2002, Defendant was returning to his home in Covington from Tunica,
Mississippi, when he drove his motor vehicle off the road and hit a tree in Memphis. Mary
Simonton, Defendant’s mother, was a passenger in the vehicle, and she later died of the injuries she
sustained in the accident. Defendant’s blood alcohol level was 0.17, and he had 1.1 grams of cocaine
in his possession at the time of the accident. Defendant’s blood analysis also was positive for
cocaine.

        At the sentencing hearing, Cathy Oliver said that she and Defendant attended the same high
school and had remained acquaintances over the years. She and Defendant began dating about nine
months before the sentencing hearing. Ms. Oliver said that Defendant had not driven an automobile
while they were dating. Ms. Oliver said that either she or one of Defendant’s sons drove Defendant
where he needed to go. She was aware that Defendant had a prior history of alcohol and drug
problems. Ms. Oliver said that Defendant was currently serving a nine-month sentence in Tipton
County for an unrelated DUI conviction.

        Jim Whitley, the minister of the Liberty Baptist Church in Fayette County, became friends
with Defendant after Defendant made a “profession of faith” in 1986. Reverend Whitley said that
after the accident Defendant gave “testimony as to his failure” before the congregation. Reverend
Whitley said that Defendant told the congregation “[t]hat he had gotten his eyes off the Lord and had
fallen back into some past patterns and told of the wreck and the death of his mother and took full
responsibility, very remorseful as he spoke to the church.” Reverend Whitley, however, could not
specifically recollect if Defendant told the congregation that he was under the influence of alcohol
and drugs when the accident occurred.

       Peter Simonton, Defendant’s brother, said that Defendant was well respected in the
community and a good father to his two sons. Mr. Simonton said that Defendant checked on his
mother every day, either in person or by telephone, while she was alive. Mr. Simonton said that Ms.
Simonton particularly enjoyed going to the casinos in Tunica so that she could play the slot
machines. Mr. Simonton said that either he or Defendant would take their mother to Tunica each
month.

        Mr. Simonton said that he was aware that Defendant had six prior DUI convictions. He said,
however, that Defendant had not driven an automobile since the accident. Mr. Simonton said that
Defendant’s assets had also been placed in a trust which paid for Defendant’s basic needs and the
upkeep of his house. Mr. Simonton said that he approached Defendant about establishing a trust
approximately six months after the accident, and Defendant agreed to the plan. Mr. Simonton said
that Defendant was very remorseful about the accident, and it was his belief that the seriousness of
the accident had changed Defendant’s life.

        Mary Hunt Cook, Defendant’s sister, said that Defendant was a good father, and it would be
detrimental to his sons if Defendant was not granted probation. She said Defendant was “a strong
figure,” and that people “could follow him down a good path.”

       Defendant testified that he was convicted three times of DUI in the 1980's, and then he
stopped drinking for eleven years. In the 1990's, his marriage began to fail, and he incurred three
more DUI convictions. The last DUI conviction was for an offense which occurred on November
15, 2001, two months before the accident that led to the current charges. Defendant said that he was


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currently incarcerated as a result of this DUI conviction. Defendant said that he went on disability
in 2000 because of chronic obstructive pulmonary disease. He said that he used crack cocaine “once
or twice every couple of weeks” despite his respiratory problems. Defendant said that he and his
mother went to Tunica every two weeks or “sometimes every week.” Defendant said his mother had
experienced problems with alcoholism and depression in the past, but she had overcome those
problems through “self-determination.”

        Defendant said that he thought about his mother every day. He said that it was not “a case
of me being an alcoholic or a drunk day in and day out.” Defendant said that he just “made some
bad decisions.” Defendant denied that he was addicted to either alcohol or drugs. Defendant said
that none of his DUI convictions required him to attend alcohol rehabilitation programs as part of
his sentence, although he had attended a few AA meetings in 1997 or 1998. Defendant said that he
no longer used alcohol or drugs and did not drive.

        Defendant said that he bought crack cocaine shortly before the accident occurred. He told
his mother he “had to pay a man some money.” Defendant said that he did not use the cocaine
before the accident, and that he had not used cocaine for some weeks before the accident.

        Robert Simonton, Defendant’s brother, testified on behalf of the State. He said that all of his
family, with the exception of his sister, were alcoholics at some point in time. Mr. Simonton said
his attempts to distance himself from the family’s drinking habits had caused conflict within the
family. Mr. Simonton said that he did not believe that Defendant would change, and that Defendant
would “be back up in front of the judicial system no matter what.”

        At the conclusion of the sentencing hearing, the trial court found that Defendant was not a
proper candidate for any form of probation. The trial court found that although Defendant had been
previously extended probation and served minimal time in confinement for his prior DUI
convictions, he had demonstrated little potential for rehabilitation over the years. The trial court
noted also that the alcohol problems existing in Defendant’s family would not be a positive factor
if Defendant were placed back into the community on a probated sentence. The trial court
specifically declined to accredit Defendant’s testimony that he had not used cocaine for weeks before
the accident.

        The trial court also denied Defendant’s request for probation based on its finding that a
sentence of confinement was “necessary to avoid depreciating the seriousness of the offense” and
“particularly suited to provide an effective deterrence to others likely to commit similar offenses.”
See Tenn. Code Ann. § 40-35-103(1)(B). The trial court observed that a “fair percentage of the fifty
cases [the trial court hears] every day are DUI’s.” The trial court stated,

       But what’s disturbing to me is in the community of Covington, here’s a man that is
       involved with the youth, is involved with the church, is involved with the
       community, and people obviously . . . look up to [Defendant]. He’s a figure in the
       community. And so to say that what happens to him won’t be a deterrent to others,


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       I don’t agree. I believe that [Defendant’s] testimony would be many, many times
       magnified. If he stands up in front of a church group or a youth group or a baseball
       team or a football team, and he said, if you drink and drive or if you smoke crack
       cocaine and you drive and you kill somebody, you go to jail.

        Based on the circumstances surrounding the offense, Defendant’s prior criminal history, his
lack of amenability to rehabilitation and the sentencing principles, the trial court ordered Defendant
to serve his eight-year sentence in confinement.

         In his appeal, Defendant argues that the trial court erred in not granting him full probation
or a sentence of split confinement. Defendant argues that his sobriety since the accident and his
abstinence from alcohol and drugs in the 1990's demonstrates that there is a good potential for
rehabilitation. Alternatively, Defendant contends that the trial court erred in not granting a sentence
of split confinement with drug and alcohol treatment as a condition of probation.

        When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review with a presumption that the determinations made by the trial court are
correct. Id. § 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). “If the trial court applies
inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of
correctness falls.” State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

        The Sentencing Commission Comments provide that the burden is on the defendant to show
the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments of counsel relative
to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or
enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

       Defendant is not presumed to be a favorable candidate for alternative sentencing options
because he was convicted of a Class B felony. See Tenn. Code Ann. § 40-35-102(6). Nonetheless,
because Defendant’s sentence is eight years, he is eligible for consideration for alternative sentencing
options. See id. §§ 40-35-112(a)(2); 40-35-303(a).

        When determining if incarceration is appropriate, a trial court should consider whether (1)
confinement is necessary to protect society by restraining a defendant who has a long history of
criminal conduct; (2) confinement is necessary to avoid depreciating the seriousness of the offense
or confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses; or (3) measures less restrictive than confinement have frequently or recently been
applied unsuccessfully to defendant. Tenn. Code Ann. § 40-35-103(1)(A)-(C). The trial court may


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also consider a defendant’s potential or lack of potential for rehabilitation and the mitigating and
enhancing factors set forth in Tennessee Code Annotated sections 40-35-113 and -114. Id. §§ 40-35-
103(5), -210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). The sentence
imposed should be the least severe measure necessary to achieve the purpose for which the sentence
is imposed. Tenn. Code Ann. § 40-35-103(4).

        “[S]entencing must be determined on a case-by-case basis, tailoring each sentence to that
particular defendant based upon the facts of that case and the circumstances of the defendant.” State
v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001). Defendant bears the burden of establishing
his suitability for total probation, and “that probation will be in the best interest of the defendant and
the public.” Id. at 586 (citing State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        The trial court found that a sentence of confinement was appropriate based on the seriousness
of the offense and the potential deterrent effect on others in the community as well as Defendant.
In addition, the trial court found that Defendant had been extended alternative sentencing numerous
times in the past without preventing Defendant from drinking and driving. The trial court also
considered Defendant’s lack of candor when he denied using cocaine at the time of the accident
despite the presence of cocaine in his blood. A defendant’s lack of candor may mitigate against a
grant of probation. State v. Bunch, 646 S.W.2d 158 (Tenn. 1983).

       The State argues that the trial court properly found that a sentence of confinement was
necessary on deterrence grounds under State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). When deterrence
considerations are the sole basis for imposing a sentence of confinement, the Supreme Court in
Hooper held that

        we will presume that a trial court’s decision to incarcerate a defendant based on a
        need for deterrence is correct so long as any reasonable person looking at the entire
        record could conclude that (1) a need to deter similar crimes is present in the
        particular community, jurisdiction, or in the state as a whole, and (2) incarceration
        of the defendant may rationally serve as a deterrent to others similarly situated and
        likely to commit similar crimes.

Id., at 10.

       The Supreme Court suggested five non-exclusive factors that reveal “whether a need for
deterrence is present and whether incarceration is ‘particularly suited’ to achieve that goal:”

        1) Whether other incidents of the charged offense are increasingly present in the
        community, jurisdiction, or in the state as a whole.
        ...
        2) Whether the defendant’s crime was the result of intentional, knowing, or reckless
        conduct or was otherwise motivated by a desire to profit or gain from the criminal
        behavior.


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       ...
       3) Whether the defendant’s crime and conviction have received substantial publicity
       beyond that normally expected in the typical case.
       ...
       4) Whether the defendant was a member of a criminal enterprise, or substantially
       encouraged or assisted others in achieving the criminal objective.
       ...
       5) Whether the defendant has previously engaged in criminal conduct of the same
       type as the offense in question, irrespective of whether such conduct results in
       previous arrests or convictions.

Id, at 10-12. The supreme court also recognized that “general deterrence is possible only after
specific deterrence has first been achieved.” Id, at 12. Thus, “repeated occurrences of the same type
of criminal conduct by a defendant generally warrant a more emphatic reminder that criminal actions
carry consequences.” Id.

        In the case sub judice, the trial court relied in part upon its personal knowledge of its daily
docket in finding that driving while intoxicated was a significant problem in the community. In
general, the trial court may not consider factors other than those presented in court. See Tenn. Code
Ann. § 40-35-210(g); Hooper, 29 S.W.3d at 12. In State v. Nunley, 22 S.W.3d 282, 288 (Tenn.
Crim. App. 1999), this Court noted that “a court may not consider facts outside the record that are
within the judge’s personal knowledge under the guise of taking judicial notice.” Personal
observations based on the content of the trial court’s daily docket “cannot serve as a substitute for
factual findings containing comparisons to indicate increased drug use in [the county] that would
require a need for deterrence.” State v. Fields, 40 S.W.3d 435, 442 (Tenn. 2001).

        Some evidence was presented that the case had generated a certain amount of publicity within
Covington. Reverend Whitley testified that Defendant publicly acknowledged his offense in front
of his church congregation. Ms. Cook and Peter Simonton said that Defendant was well-known in
the community and was well-respected, and Ms. Cook said that many people had spoken to her about
the offense. The State did not present any proof that the individuals in Defendant’s community who
were aware of the offense were “individuals likely to commit similar crimes.” Hooper, 29 S.W.3d
at 11. Be that as it may, we need not reach the question of whether the community’s awareness of
Defendant’s offense was “beyond that normally expected in the typical case.” Id.

        Although Defendant argues that he no longer drives or drinks alcohol, he was serving a nine-
month sentence at the time of the sentencing hearing for a DUI offense that occurred only two
months before the offense supporting the current charges. Defendant has six prior DUI convictions
beginning in 1980. Other than his 2001 DUI conviction, his DUI sentences were either entirely
suspended or suspended after service of a minimal period of confinement. Defendant’s repeated
commission of similar offenses despite his numerous arrests and convictions support a finding that
a sentence of confinement is necessary based on a need of specific deterrence even under the Hooper
analysis. See id. at 12.


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        Unlike the situation presented in Hooper, however, deterrence was not the only basis
supporting the trial court’s finding that confinement was appropriate. Defendant has been
committing DUI offenses for approximately twenty years. Defendant has been extended repeated
sentences involving no or minimal periods of confinement which have failed to deter Defendant
from driving while intoxicated. See Tenn. Code Ann. § 40-35-103(1)(A) and (C). Based on the
foregoing, we conclude that Defendant has failed to meet his burden of demonstrating that probation
“will subserve the ends of justice and the best interest of both the public and the defendant.” State
v. Dykes, 803 SW.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1 (Tenn. 2000).

        Defendant also argues that he should have been granted a sentence of split confinement with
a requirement that he attend a drug and alcohol rehabilitation program as a condition of probation.
Defendant argues that he no longer drives, and he has shown in the past that he can refrain from
drinking for an extended period of time. Defendant was fifty-four years old at the time of the
sentencing hearing. Defendant said in his pre-sentence report that he began drinking alcohol at the
age of sixteen, and he started using marijuana at the age of twenty. Although he stopped using
marijuana when he was thirty-five, Defendant said that he started using cocaine at forty-eight.
Despite his numerous DUI convictions and lengthy history of alcohol and drugs, Defendant denies
that he has a problem with alcohol or drugs. Defendant has only voluntarily participated minimally
in an alcohol rehabilitative program in the past. All of these factors reflect negatively on
Defendant’s potential for rehabilitation.

        The record supports the manner of service of the sentence imposed. Defendant failed to carry
his burden to show that he was a suitable candidate for alternative sentencing, and the trial court thus
did not err by imposing a sentence of confinement.

                                          CONCLUSION

       After a thorough review of the record, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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