        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  August 26, 2008 Session

             STATE OF TENNESSEE v. RALPH LESTER NELSON

                  Direct Appeal from the Circuit Court for Sullivan County
                            No. S53,313 R. Jerry Beck, Judge


                  No. E2008-00128-CCA-R3-CD - Filed September 23, 2008


The Defendant, Ralph Lester Nelson, pled guilty to one count of violating a motor vehicle habitual
offender order, a Class E felony; one count of driving without a seatbelt, a Class C misdemeanor;
and one count of driving without proof of financial responsibility, a Class E misdemeanor. After a
sentencing hearing, the trial court sentenced the Defendant as a multiple offender to an effective
sentence of three years in the Tennessee Department of Correction (TDOC). On appeal, the
Defendant claims that the trial court erred when it did not grant him alternative sentencing. After
a thorough review of the record and the applicable law, we affirm the judgment of the trial court.


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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and J.C. MCLIN , JJ., joined.

Terry L. Jordan, Blountville, Tennessee, for the Appellant, Ralph Lester Nelson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea
Dulany, Assistant Attorney General; H. Greeley Wells, District Attorney General; Julie R. Canter,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                           OPINION

                                             I. Facts

                                        A. Plea Hearing

       This case arises from the Defendant's arrest on November 24, 2006, for violating a habitual
motor vehicle offender order. In 1994, the Defendant was declared a habitual motor vehicle offender
(hereinafter an “HMVO”) pursuant to Tenn. Code Ann. § 55-10-616. At the guilty plea hearing, the
State gave the following account of the crime:
        [O]n November 24, 2006, Trooper John Taylor with the highway patrol observed
        Ralph Nelson in operation of a 1994 Chevrolet….Mr. Nelson was not wearing a
        seatbelt. Upon stopping the vehicle Trooper Taylor asked Mr. Nelson for his driver's
        license. Nelson couldn't present one. Once a driver's history was ran [sic] it revealed
        he was a habitual traffic offender. Mr. Nelson was also unable to produce proof of
        insurance.

At the hearing, the Defendant pled guilty to each count of the indictment.

                                      B. Sentencing Hearing

         At the sentencing hearing, the trial court heard testimony from the Defendant’s girlfriend and
the Defendant; read a letter from the Defendant’s girlfriend’s mother; and reviewed the presentence
report. The Defendant’s girlfriend, Brenda Fleenor testified that the Defendant has reformed his
behavior. Fleenor testified that during the two years of their relationship she had not seen the
Defendant drive prior to the day of the violation. She testified that the Defendant does not have a
vehicle and that he was driving her vehicle on the day of the violation. Fleenor said that she had not
seen the Defendant drink and that he had been steadily employed throughout their relationship. She
testified that she has driven him to work and would continue to do so. Also, she said she would
transport him to and from any probation obligations.

       Fleenor told the court “I’ve read the probation report, and that’s just not the man I know.”
She explained that the Defendant plays a large role in maintaining and repairing both their shared
home and Fleenor’s mother’s (Barbara Stallcup’s) home:
       He mows [Stallcup’s] yard. He’s done–he does car repairs for her and for me. He’s
       moved furniture. He’s installed windows. Just what everything needs to be done
       [sic]. My mom says he’s been a godsent [sic]. He’s been a godsent to both of us. It’s
       just the–the report is just–just not the Ralph Nelson that we know.

Fleenor said that she was in the process of filing for disability based on a “bad back” and chronic
obstructive pulmonary disease, which requires daily breathing treatments. She explained that “he’s
our 100% support. He helps my mother out. She’s a widow.” Fleenor concluded by informing the
court that the Defendant attends church with her and her daughter and is their “sole support.”

        The Defendant testified that he had not had a drink in “over two and a half years” and
attributed his sobriety to his girlfriend. In response to defense counsel’s inquiry into what happened
on the day of the offense, the Defendant said “My stupidity...The day before I was cutting a tree
and...my head got busted open and I had to go to the hospital.” He went on to explain that upon
returning home from the hospital the next day, his employer’s grandson called and asked for a ride
to the shop to pick up equipment. The Defendant stated that although he was not wearing his
seatbelt when the officer stopped his car, he had not been drinking or abusing any substance.


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        The Defendant’s presentence report was also entered into evidence. According to the
presentence report, the then thirty-eight year old Defendant dropped out of high school during the
tenth grade. He began drinking alcohol when he was seventeen years old and drank about one six-
pack of beer each night. Beginning in 1988, when he was nineteen, the Defendant accrued a number
of driving or alcohol-related offenses. He currently has: five convictions for driving under the
influence; four convictions for public intoxication; four conviction for driving on a revoked license;
three convictions for violation of an habitual traffic offender order; one conviction for possession
of marijuana; one conviction for possession of drug paraphenalia; and several miscellaneous traffic
offenses.

        The presentence report also indicated that the Defendant completed three probationary
periods with varying success. In 1996, although he tested positive for marijuana once during the
probation period, he served a one-year supervised probation period, in which no violation report was
filed. However, the Defendant was instructed to attend substance abuse and literacy courses, but he
did not complete either program. In 1999, the Defendant was ordered to serve eighteen months, but
he was released on determinate release probation after six months. However, the Defendant violated
his release by testing positive for marijuana. His probation was revoked, and the trial court ordered
the Defendant to serve thirty days. However, after his release, he violated his probation again by not
only violating the HMVO order, but also driving under the influence. In 2002, the Defendant
successfully served a term of probation. After serving six months of a two-year term, the Defendant
was released on determinate release probation and completed the remaining eighteen months of
probation without incident.

       In the presentence report, the Defendant stated that he was in good health and had no
handicap or disability. He stated that he has not abused alcohol in over two and a half years and that
he lived with Fleenor and her 10-year old daughter in a home they rented from Stallcup. The
Defendant was sporadically employed by Kwickway Construction since 1993, and he was employed
by Mike Steadman Construction at the time of the hearing.

        The defense introduced a letter praising the Defendant from Stallcup, the Defendant’s
girlfriend’s mother. Stallcup stated that she had known the Defendant for two years and confirmed
that she leases a home to her daughter and the Defendant. During the two years that she had known
the Defendant, Stallcup found him to be “a dependable and trustworthy friend.” Also, she stated that
she had never seen the Defendant drive, drink, or use drugs. Stallcup concluded by calling the
Defendant “God-sent” and explaining that he does everything from mowing the lawn to repairing
cars.

        After reviewing the evidence presented, the trial court denied the Defendant’s motion for
alternative sentencing. The court explained that although it was impressed with the Defendant’s
service to his girlfriend’s family, it remained troubled by the Defendant’s lengthy list of prior
offenses. The trial court then ordered that the Defendant serve his sentence in confinement. It is
from this judgment that the Defendant now appeals.

                                        II. Analysis

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        The Defendant contends that the trial court improperly denied alternative sentencing because
he had changed his lifestyle during the period leading up to the offense. He asserts that, like the
defendant in State v. Martin, 146 S.W.3d 64 (Tenn. Crim. App. 2004), he had shown himself open
to rehabilitation. The State claims that the trial court properly denied alternative sentencing. We
agree with the State. Therefore, we affirm the judgments of the trial court.

         When a defendant appeals the manner of service of a sentence imposed by a trial court, this
court conducts a de novo review of the record with a presumption of correctness as to the trial court’s
determination. T.C.A. § 40-35-401(d) (2005). However, this presumption of correctness arises only
if the record affirmatively shows that the trial judge considered both the sentencing principles and
all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
appealing party carries the burden of showing the sentence is improper. T.C.A. § 40-35-401(d),
Sentencing Commission Comments. Even if we prefer a different result, we may not disturb the
sentence if the trial court followed the statutory sentencing procedure, made findings of fact
adequately supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

       The Tennessee Supreme Court noted recently that, due to the 2005 sentencing amendments,
no defendant is presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A.§ 40-35-102(6) (2006)). Instead, a defendant not within
“the parameters of subdivision (5) [of T.C.A. § 40-35-102], and who is an especially mitigated or
standard offender convicted of a Class C, D, or E felony, “should be considered” as a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary.” Id. (footnote
omitted). Generally, defendants classified as Range II or Range III offenders are not to be considered
as favorable candidates for alternative sentencing.1 T.C.A. § 40-35-102(6); 2007 Tenn. Pub. Acts
512.

        The Tennessee Code recommends that, when sentencing a defendant to confinement, a trial
court should consider whether:
        (A) Confinement is necessary to protect society by restraining a defendant who has
        a long history of criminal conduct;
        (B) Confinement 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
        (C) Measures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant.



       1
        The legislature did carve out an exception to this rule where if “a defendant with at least three (3) felony
       convictions is otherwise eligible, such a defendant may still be considered a favorable candidate for any
       alternative sentencing that is within the jurisdiction of and deemed appropriate by a drug court.” 2007 Tenn.
       Pub. Acts 512.
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T.C.A. § 40-35-103 (2008). Also, the trial court may consider the mitigating and enhancing factors
set forth in T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d
435, 438 (Tenn. Crim. App. 1996). A trial court should also consider a defendant’s potential or lack
of potential for rehabilitation when determining if an alternative sentence would be appropriate.
T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.

        In conducting de novo review of a sentencing determination, we must consider (1) the
evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct; (5) any mitigating or statutory enhancement factors; (6) any
statement that the defendant made on his own behalf; and (7) the potential for rehabilitation or
treatment. T.C.A. § 40-35-102, -103, -210 (2007); see State v. Ashby, 823 S.W.2d 166, 168 (Tenn.
1991).

        In this case, the Defendant is not within the class of offenders considered to be favorable
candidates for alternative sentencing. As discussed above, in Tennessee courts are to consider
standard or especially mitigated offenders convicted of Class C, D, or E felonies as “favorable for
alternative sentencing.” T.C.A.§ 40-35-102(6). However, the Defendant is a Range II multiple
offender. See T.C.A. § 40-35-106(a)(1), (c) (2005). Therefore, the Defendant cannot avail himself
of the statutory language that favors alternative sentences for standard and especially mitigated
offenders. T.C.A. § 40-35-102(6) (2007).

        In the present case, unlike in Martin, the trial court’s determination merits a presumption of
correctness. If the record affirmatively shows that the trial judge considered the sentencing
principles and all relevant facts and circumstances, then a presumption of correctness arises as to the
trial court’s determinations. See Ashby, 823 S.W.2d at 169. Here, the record affirmatively shows
that the trial court gave due consideration and weight to the evidence presented at the plea hearing,
the presentence report, the principles of sentencing, mitigating factors, and the Defendant’s potential
for rehabilitation. Taking all of these factors into consideration, the trial court determined that the
Defendant should serve his sentence in confinement.               We conclude that the trial court’s
determination that the denial of an alternative sentence was proper is presumptively correct.

         In State v. Martin, 146 S.W.3d 64 (Tenn. Crim. App. 2004), a panel of this court reversed
the trial court’s decision to deny alternative sentencing to an HMVO violator. The Defendant argues
that the trial court should have granted him alternative sentencing because Martin’s HMVO violation
is so factually similar to his own HMVO violation. Although the respective facts of each
defendant’s underlying violation are somewhat similar, the proceedings of the Martin trial court and
the trial court here differ significantly.

        Like the Defendant, Martin had been convicted of numerous felonies and misdemeanors. In
Martin, we ultimately concluded that, given Martin’s behavior in the years leading up to his arrest
and the circumstances surrounding his violation, he “deserve[d] a sentence which [did] not involve
total confinement.” Id. at 77. However, the trial court in Martin failed to consider two mitigating


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factors when it sentenced Martin. Id. at 69-70. This omission caused the Martin denial of
alternative sentencing to lose the presumption of correctness that would ordinarily accompany it.

         Here, the trial court considered all mitigating factors in determining that incarceration was
proper. The trial court considered the claims of the Defendant, Stallcup, and Fleenor that the
Defendant was a changed man open to rehabilitation. However, while considering the evidence the
trial court frequently commented that, although it was impressed with the Defendant’s “tremendous
help,” it doubted the Defendant’s rehabilitative potential given his repeated violations of the law and
failures to comply with probation conditions. The trial court explained: “You know, usually if a
person has five or six prior felonies, hope for rehabilitation is usually weak....I’m just not sure it
would be in the best interest of the public to again place the Defendant on some type of non-
incarcerated [sentence].” We conclude that, in denying the Defendant an alternative sentence, the
trial court properly considered the Defendant’s good deeds as well as the Defendant’s extensive prior
criminal history and lack of success on probation.

        The record affirmatively establishes that the trial court based its denial of alternative
sentencing on both sentencing principles and the relevant facts and circumstances. Therefore, the
trial court properly required the Defendant to serve his sentence in confinement. The Defendant is
not entitled to relief.

                                          III. Conclusion

       After a thorough review of the record and applicable authorities, we conclude that the trial
court properly denied the Defendant alternative sentencing. We affirm the judgment of the trial
court.

                                                                    __________________________
                                                                      ROBERT W. WEDEMEYER




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