IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 1997 SESSION
FILED
STATE OF TENNESSEE, * C.C.A. # 02C01-9611-CR-00436
Appellee, * SHELBY COUNTY
January 12, 1998
VS. * Hon. Joseph B. Dailey , Judge
JOHN W. THOMAS, * (Motor Vehicle Habitual Offense)
Cecil Crowson, Jr.
Appellant. *
Appellate C ourt Clerk
For Appellant: For Appellee:
Walker Gwinn John Knox Walkup
Assistant Public Defender Attorney General and Reporter
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103 Kenneth W. Rucker
(on appeal) Assistant Attorney General
Criminal Justice Division
J.T. Harris 450 James Robertson Parkway
Assistant Public Defender Nashville, TN 37243-0493
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103 Terrell L. Harris
(at sentencing hearing) Assistant District Attorney General
Criminal Justice Complex
Of Counsel: 201 Poplar Avenue, Third Floor
Memphis, TN 38103
A.C. Wharton, Jr.
Shelby County Public Defender
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, John W. Thomas, pled guilty to two separate violations
of the order declaring him a motor vehicle habitual offender. The trial court imposed
concurrent, Range III sentences of five years for each of the two Class E felonies;
the workhouse sentence is to be served in the Shelby County Corrections Center.
In this appeal of right, the defendant complains that the trial court
should have granted placement in a Community Corrections program. We find no
error and affirm the judgment of the trial court.
On May 8, 1995, the defendant was barred from operating his
automobile under the provisions of the Motor Vehicle Habitual Offenders Act. See
Tenn. Code Ann. § 55-10-616. W hile the order prohibiting operation of the vehicle
was in effect, the defendant continued to drive. Indicted for incidents occurring on
July 13 and July 25, 1995, the defendant waived his right to a trial by jury and
entered pleas of guilt on each charge.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 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). The
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
2
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the 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).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann. §
40-36-103. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets
the minimum requirements of the Community Corrections Act of 1985, however,
does not mean that he is entitled to be sentenced under the act as a matter of law
or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following
offenders are eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
3
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
Here, the defendant meets the threshold qualifications for both
probation and Community Corrections. He contends that the trial court failed to set
forth specific findings of fact in denying an alternative sentence. The state
concedes that the rulings were less than adequate. The 1989 Act does provide that
the record of the sentencing hearing "shall include specific findings of fact upon
which application of the sentencing principles was based." Tenn. Code Ann. § 40-
35-209(c). While we acknowledge that the trial judge should comply with the
provisions of § 40-35-209(c), we are nonetheless able to conclude from our de novo
review that the record is adequate to support the denial of an alternative sentence
under the Community Corrections Act.
The defendant, thirty-three years of age, is single and resides in
Memphis with his girlfriend, Deardra Barry, and her two children. He provides some
support. Described as a valuable employee, he is employed by Jones Brothers
Tree and Landscape Company where, except for a five-month period, he has been
employed since May 27, 1994. The defendant acknowledges a history of substance
4
abuse, including cocaine usage during the 1980's and an alcohol addiction for the
last several years. At the time of the sentencing hearing, he attended a school for
alcoholics. From all appearances, neither of the violations of the order prohibiting
driving involved the use of alcohol. The defendant acknowledges an "extensive
prior criminal record" over the last ten years, much of which is alcohol or driving
related. His other offenses, however, include selling a controlled substance, petit
larceny, assault and battery, attempt to commit a felony, robbery, burglary, and
inhaling toxic vapors. The trial court denied the petition based upon the defendant's
prior criminal history. The trial judge was particularly distressed that the defendant
had continued to drive after his arrest on the first charge.
The defendant has established himself as a valuable, dependable
employee. The record demonstrates that he has undertaken some treatment for his
addiction to alcohol. While serious violations of a court order, the current offenses
are of a non-violent nature. He is supportive of his girlfriend and her children. All of
these things are favorable indicators for a placement in a Community Corrections
program. On the other hand, the defendant's prior criminal history cannot be
described as anything other than extensive. His past includes both felonies and
misdemeanors and several instances of incarceration. Predicate offenses were
required before the defendant qualified as a motor vehicle habitual offender. W ithin
a period of two weeks, the defendant was discovered violating a court order
prohibiting the operation of an automobile on two separate occasions.
A sentence of confinement is often necessary to protect society by
restraining the defendant who has a long history of criminal activity or is necessary
to avoid depreciating the seriousness of the offenses. Tenn. Code Ann. § 40-35-
103(1)(A), (B). Corrective measures less restrictive than incarceration have not
5
been successful for the defendant. Tenn. Code Ann. § 40-35-103(1)(C). Because
the defendant pled guilty as a Range III offender, he is not entitled to the statutory
presumption that he is a favorable candidate for alternative sentencing. State v.
Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); Tenn. Code Ann. § 40-35-
102(6). Nonetheless, the defendant has demonstrated some potential for
rehabilitation and treatment; the trial court has left open the possibility of some form
of alternative sentence by denying the petition for Community Corrections "at least
at this point." While the defendant has made a compelling argument that he should
qualify for the program, "it is not the policy or purpose of this court to place trial
judges in a judicial [strait jacket on matters of sentencing]." Ashby, 823 S.W.2d at
171. Sentencing must require an individualized, case-by-case approach. State v.
Moss, 727 S.W.2d 229, 235 (Tenn. 1986). That necessarily embodies the exercise
of discretion at the trial court level. See State v. Fletcher, 805 S.W.2d 785 (Tenn.
Crim. App. 1991). Although a reasonably close issue, the better alternative, in our
view, is to defer to the determination of the trial court. The record supports the
conclusion reached.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
David G. Hayes, Judge
_____________________________
Joe G. Riley, Judge
6
State v. John Thomas
Combined Opinion