State v. Lawrence White

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED MAY SESSION, 1999 June 25, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9810-CC-00324 )

Appellee, ) HARDIN COUNTY )

V. ) HON. C. CREED McGINLEY, JUDGE )

LAWR ENC E EU GEN E WH ITE, ) (HABITUAL MOTOR VEHICLE ) OFFENDER STATUTE; POSSESSION Appe llant. ) OF DR UG PAR APHER NALIA)

FOR THE APPELLANT: FOR THE APPELLEE:

GUY T. WILKINSON PAUL G. SUMMERS District Public Defender Attorney General & Reporter

RICHARD W. DeBERRY J. ROSS DYER Assistant Public Defender Assistant Attorney General 117 Fo rrest Ave nue N orth 2nd Floor, Cordell Hull Building Camden, TN 38320 425 Fifth Avenue North Nashville, TN 37243

G. ROBERT RADFORD

District Attorn ey Ge neral

JOHN W. OVERTON, JR.

Assistant District Attorney General P.O. Box 484

Savannah, TN 38372-0484

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Defen dant, La wrence Eugen e W hite, appe als as o f right fro m his sentencing in the Ha rdin County Circuit Court. Defendant pled guilty pursuant to a plea agreem ent with the State to o ne (1) co unt of violation of the habitual motor vehicle offende r statute (C ount O ne) and one (1) c ount of possession of drug paraphern alia (Coun t Two). In re turn, Defe ndant re ceived a one (1) ye ar, six (6) month sentence for Count One and a sentence of eleven (11) months, twenty-nine (29) days for Count Two. In addition, Defendant agree d to pa y a fine in the amount of $750.00. The trial court was to determine the manner of service of the sentence. Defe ndan t’s sole issue on appeal is the trial court’s denial of alternative sentencing in the form of Com munity C orrection s. W e affirm the judgm ent of the tria l court.

When an accused challenges the length, range or the manner of service of a sentence, this court h as a du ty to condu ct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-40 1(d). This presum ption is “conditioned upon the affirm ative showing in the record that the trial cou rt cons idered the se ntenc ing prin ciples and a ll relevant facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, this court must consider: (a) the evidence, if any received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

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own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. Code Ann. § § 40-35-1 02, -103 , and -21 0; see State v. S mith, 735 S.W.2d 859, 863 (T enn. Crim. A pp. 1987).

If our rev iew refle cts tha t the trial court followed the statutory sentencing procedure, impo sed a lawful s enten ce afte r havin g given due consideration and proper weight to the factors and principles set out u nder the sentencing law, and made finding s of fac t adeq uately supported by the record, then we may not mo dify the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

At the senten cing hea ring, Defe ndant te stified that he moved to Hardin Coun ty in 1994 as a disabled American veteran. Defendant described that when he takes his medications, the “law thinks I’m drunk.” While Defendant denied that he drank that much, he stated he has to drive to Mem phis every week to go to th e VA hosp ital. To subs idize h is incom e, he p erform ed m echa nical m ainten ance on veh icles. On the evening in questio n, Defen dant wa s driving so meon e’s truck w ith faulty brakes to his ho me to perfor m the repair s. Because the brakes were not functioning properly, he was unable to come to a complete stop at the stop sign and he was pulled over by the police a s a result. In summ ation, Defend ant stated, “I don’t rape, steal, rob or none of the above. I’m just trying to get along and sooner or later d ie from what I go t in Vietnam.”

The State did not present any proof at the sentencing hearing other than Defendant’s presentence report. The report included the following convictions:

Habitual Motor Vehicle Offender Violation 1/10/96

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(Arrest 6/9/95)

Driving While Intoxicated, Third Offense 1/10/96 (Arrest 6/9/95)

Driving While Intoxicated 6/13/88 (Arrest 5/29/88)

Driving on Revoked License 9/23/87 (Arrest 2/2/87)

Driving on Revoked License 6/20/87 (Arrest 1/29/87)

Driving on Revoked License 12/31/86 (Arrest 9/30/86)

In the prese ntenc e repo rt, Defe ndan t explain ed in h is state men t that the vehicle he was driving at the time of the offense was no t his own, a nd neithe r was the pipe with marijuana. He fur ther ex plaine d that b ecau se he did not have any fa mily mem bers in the area that could drive, he had to drive back and forth to the VA Hosp ital in Memphis. Finally, the prese ntence report verified that Defendant did not have a stable history of employment, although he received assistance from the governm ent.

The trial court found that Defendant had a prior history of driving infractions, including a prior felony conviction for violation of the habitual motor vehicle offender statute. In consideration of the record as a whole, the court held that his prior record outweighed any presumption for alternative sentencing. Defendant’s prior record, combined with his admission of contin ued fe lony vio lations of the la w by dr iving his vehicle weekly to Memphis, were sufficient reason to the trial cou rt to deny any form of alternative senten cing. See Tenn. C ode Ann . § 40-35-103 (1)(A) and (C ).

A defen dant w ho “is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candida te for alternative

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sentencing option s in the abse nce o f evidence to the contrary.” Tenn. Code Ann. § 40-35-102 (6). Our sentencing law also provides that “convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation, shall be given first priority regarding sentences involving incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to eight (8) years or less who is not an offender for who m inc arcera tion is a priority is presumed eligible for alternative sentencing unless sufficient evidence rebuts the presu mptio n. Howe ver, the ac t does no t provide tha t all offende rs who m eet the criteria are en titled to s uch re lief; rather, it requires that sentencing issues be determined by the facts and circu mstan ces pre sented in each c ase. See State v. Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).

W hile the Com munity Co rrections Ac t allows ce rtain eligible o ffenders to participate in community-based alternatives to incarceration, a defendant must first be a suitable ca ndidate for alternative senten cing. Te nn. Co de Ann . § 40-36-103. W hile Defendant does meet the eligibility requirements of Tennessee Code Annotated section 40-36-106(a), the Ac t does not pro vide tha t the offe nder is autom atically entitled to su ch relief. State v. Grand berry, 803 S.W.2d 706, 707 (Tenn. Crim. A pp. 199 0); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). A defendant’s potential or lack of potential for rehab ilitation w as ap propr iately considered by the trial court in determining that Defendant should not be granted an alterna tive sen tence . Tenn . Cod e Ann . § 40-3 5-103 (5). As the trial c ourt no ted, it was only two (2) years ago that the Defendant committed the exact same felony offense, violation of the habitual motor vehicle offender sta tute. In addition, where the defendant’s history indicates a clear disre gard for th e laws an d mora ls of society

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and a failure of pas t efforts to rehab ilitate, the trial cou rt did not abu se its discretion in denying an alternative sentence. State v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994). As admitted by the Defendant, he has co ntinue d to co mm it this felony offense o n a regu lar basis. This indicates a poor potential for rehabilitation.

It is Defendant’s burden to prove his suitability or need for alternative sentencing, and Defendant has failed to meet this burden. Ashby, 823 S.W.2d at 169. W e affirm the judgm ent of the tria l court.

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THOMAS T. W OODALL, Judge

CONCUR:

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JOHN H. PEAY, Judge

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JOE G. RILEY, Judge