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
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T.C.A. § 55-10-616.
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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).
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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
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CONCUR:
_______________________________
PAUL G. SUMMERS, Judge
_______________________________
CORNELIA A. CLARK, Special Judge
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