State v. Randy Fiveash

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 20, 1998
• Docket: 02C01-9611-CR-00429
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

NOVEMBER 1997 SESSION FILED January 20, 1998

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) NO. 02C01-9611-CR-00429 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, RANDY C. FIVEASH, ) JUDGE ) Appellant. ) (Denial of Alternative Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

GERALD D. SKAHAN JOHN KNOX WALKUP 140 North Third Street Attorney General and Reporter Memphis, TN 38103-2007 DEBORAH A. TULLIS Assistant Attorney General Cordell Hull Building - 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

WILLIAM L. GIBBONS District Attorney General

THOMAS D. HENDERSON Assistant District Attorney General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947

OPINION FILED:

AFFIRMED PURSUANT TO RULE 20

JOE G. RILEY, JUDGE ORDER

The appellant, Randy C. Fiveash, entered a plea of guilty to the offense of

driving in violation of the Habitual Motor Vehicle Offenders (HMVO) Act, a Class E

felony. He received a sentence of one (1) year as a Standard Offender with the

issue of alternative sentencing reserved for judicial determination. The sole issue

presented in this appeal is whether the trial court erred in denying community

corrections. We AFFIRM the sentence of the trial court pursuant to Rule 20 of the

Tennessee Court of Criminal Appeals.

On July 20, 1995, appellant drove in violation of the HMVO Act. He pled

guilty to this offense and asked for alternative sentencing in the form of placement

in the community corrections program. Appellant claimed that he drove that day

because his wife was sick and was unable to take him to work. He admitted he was

an alcoholic, but that he had begun attending Alcoholics Anonymous and had

stopped drinking. He admitted using marijuana four (4) days prior to his interview

with the community corrections officer who prepared the pre-sentence evaluation.

The pre-sentence evaluation reveals that the appellant had numerous prior

convictions during the period of 1986 through 1994, including four (4) D.U.I.

convictions, five (5) reckless driving convictions, and five (5) convictions for driving

while license suspended, canceled, or revoked (DWLSCR). In addition, he had a

prior probation violation as well as other misdemeanor convictions. After the last

DWLSCR conviction, appellant was declared an HMVO on January 25, 1994.

Although appellant is entitled to a presumption of alternative sentencing, his

prior record supports the trial court’s decision that he was not an appropriate

candidate. The trial court called appellant’s driving record “horrendous” and noted

that he could have killed himself or others. The court based its decision in part

upon appellant’s previous violation of probation and his smoking marijuana while

2 disposition of the instant offense was pending. The court also found that to grant

community corrections in spite of all these factors would depreciate the seriousness

of the offense.

After thoroughly reviewing the record, the briefs, and the law governing the

issue presented by the defendant, we conclude that the trial court did not err by

denying alternative sentencing. Accordingly, pursuant to Rule 20 of the Tennessee

Court of Criminal Appeals, we AFFIRM the sentence of the trial court.

JOE G. RILEY, JUDGE

CONCUR:

GARY R. WADE, JUDGE

DAVID G. HAYES, JUDGE