            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                           SEPTEMBER SESSION, 1996


STATE OF TENNESSEE,             )      C.C.A. NO. 02C01-9510-CC-00324
                                )
      Appellee,                 )
                                )
                                                                   FILED
                                )      HENRY COUNTY                March 26, 2008
VS.                             )
                                )      HON. JULIAN P. GUINN        Cecil Crowson, Jr.
                                                                    Appellate Court Clerk
MICHAEL BELLEW,                 )      JUDGE
                                )
      Appellant.                )      (Direct Appeal-Motor Vehicle Offender)




FOR THE APPELLANT:                     FOR THE APPELLEE:

GUY T. WILKINSON                       CHARLES W. BURSON
District Public Defender               Attorney General and Reporter
24th Judicial District
P. O. Box 663                          MARY ANNE QUEEN
Camden, TN 38320                       Legal Assistant

                                       ELLEN H. POLLACK
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37219

                                       ROBERT RADFORD
                                       District Attorney General
                                       P. O. Box 686
                                       Huntingdon, TN 38344



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       Appellant Michael Bellew pled guilty in the Henry County Circuit Court to

operating a motor vehicle in violation of the Motor Vehicle Habitual Offenders Act. As

a Range I standard offender, Appellant received a sentence of two years in the

Tennessee Department of Correction. In this direct appeal, he presents the following

issue: whether his sentence is excessive



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



                            I. FACTUAL BACKGROUND

       On November 7, 1994, a Henry County Grand Jury indicted Appellant for driving

on a revoked license in violation of Tennessee Code Annotated Section 55-50-504. He

was also indicted for failing to abide by the terms of his habitual offender status in

violation of Tennessee Code Annotated Section 55-10-616.            On April 13, 1995,

Appellant pled guilty to violating the Motor Vehicle Habitual Offenders Act. The first

count of the indictment was dismissed. Following a sentencing hearing on May 22,

1995, the trial court imposed a sentence of two years.



                                  II. SENTENCING

       Appellant alleges that his sentence is excessive. He argues that the trial court

erred in determining the length of his sentence by failing to apply certain applicable

mitigating factors.



       When an appeal challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d) (1990).

However, this presumption of correctness is “conditioned upon the affirmative showing

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that the trial court in the record considered the sentencing principles and all relevant

facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the

event that the record fails to demonstrate such consideration, review of the 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 conducting a

review, this Court must consider the evidence, the presentence report, the sentencing

principles, the arguments of counsel, the nature and character of the offense, mitigating

and enhancement factors, any statements made by the defendant, and the potential

for rehabilitation or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.

1993). The defendant bears the burden of showing the impropriety of the sentence

imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).



       We note initially that, because the record demonstrates that the trial court

adequately considered the sentencing principles and all relevant facts and

circumstances, our review of Appellant’s sentence will be de novo with a presumption

of correctness.



       In the absence of enhancement and mitigating factors, the presumptive length

of sentence for a Class B, C, D, and E felony is the minimum sentence in the statutory

range while the presumptive length of sentence for a Class A felony is the midpoint in

the statutory range. Tenn. Code Ann. § 40-35-210(c) (Supp. 1995). Where one or

more enhancement factors apply but no mitigating factors exist, the trial court may

sentence above the presumptive sentence but still within the range. Id. § 40-35-210(d).

Where both enhancement and mitigating factors apply, the trial court must start at the

minimum sentence, enhance the sentence within the range as appropriate to the

enhancement factors, and then reduce the sentence within the range as appropriate

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to the mitigating factors. Id. § 40-35-210(e). The weight afforded an enhancement or

mitigating factor is left to the discretion of the trial court so long as the trial court

complies with the purposes and principles of the Tennessee Criminal Sentencing

Reform Act of 1989 and its findings are supported by the record. State v. Hayes, 899

S.W.2d 175, 185 (Tenn. Crim. App. 1995).



       Appellant was convicted of violating the Motor Vehicle Habitual Offender Act, a

Class E felony. See Tenn. Code Ann. § 55-10-616. As a Range I standard offender

convicted of a Class E felony, Appellant’s statutory sentencing range was one to two

years. See id. § 40-35-112(a)(5). The trial court found the following enhancement

factors applicable to the sentence:

              (1) the defendant has a previous history of criminal
              convictions or criminal behavior in addition to those
              necessary to establish the appropriate range;
              (2) the defendant has a previous history of
              unwillingness to comply with the conditions of a
              sentence involving release in the community; and
              (3) the felony was committed while on probation from a
              prior felony conviction.

Id. § 40-35-114(1), (8), (13). The trial court found no mitigating factors. At the

conclusion of the sentencing hearing, the trial court imposed a sentence of two years.

Appellant does not contest the application of the three enhancement factors but

maintains that the trial court failed to consider four applicable mitigating factors. We

will address each in turn.



                  1. NO THREAT OF SERIOUS BODILY INJURY

       Appellant first contends that the trial court should have applied mitigating factor

(1), which states that “[t]he defendant’s criminal conduct neither caused nor threatened

serious bodily injury.” Tenn. Code Ann. § 40-35-113(1). Appellant points out that he

was not driving under the influence of an intoxicant at the time of his arrest and argues

that he created no greater threat than any other driver. However, as a habitual offender


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with an extensive record of driving-related offenses, Appellant has demonstrated that

he is indeed a greater threat than the average driver. By means of the Motor Vehicle

Habitual Offenders Act, the General Assembly of Tennessee, as a matter of public

policy, has determined that certain drivers are such a threat that they should not be

allowed to operate a motor vehicle. Appellant is just such a driver, and his presence

behind the wheel, in and of itself, constitutes a threat of serious bodily injury to other

drivers. Thus, we conclude that mitigating factor (1) is inapplicable.



                            2. STRONG PROVOCATION

       Appellant also asserts that the trial court should have applied mitigating factor

(2), which states that “[t]he defendant acted under strong provocation.” Tenn. Code

Ann. § 40-35-113(2). Appellant argues that, at the time of his arrest, he was en route

to Michigan to be with his family and to seek employment. He fails to explain why it

was necessary for him to drive himself cross-country, knowing full-well that any driving

was in direct violation of the terms of his habitual offender status. The circumstances

surrounding Appellant’s decision to drive to Michigan fall well short of the strong

provocation necessary to mitigate a sentence.           Thus, mitigating factor (2) is

inapplicable.




 3. SUBSTANTIAL GROUNDS TENDING TO EXCUSE OR JUSTIFY CRIMINAL

                                       CONDUCT

       Appellant next maintains that the trial court should have applied mitigating factor

(3), which states that “[s]ubstantial grounds exist tending to excuse or justify the

defendant’s conduct, though failing to establish a defense.” Tenn. Code Ann. § 40-35-

113(3). Appellant argues that his desire to find gainful employment in Michigan near

his family constitutes a substantial ground tending to excuse or justify his actions.

While we can appreciate the difficulties accompanied with the loss of driving privileges,

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we do not believe that Appellant’s interest in returning to Michigan, however admirable

his motivation may have been, rises to the level of excusing or justifying his actions.

Thus, mitigating factor (3) is inapplicable.



                       4. DESIRE TO PROVIDE NECESSITIES

       Finally, Appellant insists that the trial court should have applied mitigating factor

(7), which states that “[t]he defendant was motivated by a desire to provide necessities

for his family or himself.”    Tenn. Code Ann. § 40-35-113(7).          In support of the

application of this factor, Appellant argues that his decision to violate the terms of his

habitual offender status was motivated by a desire to find employment in Michigan so

he could provide for his family. However, mitigating factor (7) is more properly

addressed to individuals who, because of their destitution, choose to steal bread, milk,

or other basic necessities for their children or themselves due to their dire

circumstances.    See State v. Williamson, No. 03C01-9210-CR-00371, 1993 WL

335433, at *2 (Tenn. Crim. App. Sept. 1, 1993), perm. app. denied (Tenn. Mar. 7,

1994). We believe that, if Appellant had the means to put fuel in his car and to keep

it in good working order for the trip to Michigan, he had the means to arrange for some

other form of travel, whether with a friend or family member or on some form of public

transportation. Thus, mitigating factor (7) is inapplicable.



       Even if one or all of these mitigating factors applied to Appellant’s sentence, the

extensiveness of his criminal history in the area of operating a motor vehicle and his

repeated willingness to disregard the terms of his punishment more than justify a

sentence of two years. Therefore, we conclude that the trial court acted within its

discretion in enhancing Appellant’s sentence to two years.



       Accordingly, the judgment of the trial court is affirmed.



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                         ____________________________________
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
DAVID H. W ELLES, JUDGE




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