State v. White

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 22, 1997
• Docket: 03C01-9602-CC-00067
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY 1997 SESSION July 22, 1997

STATE OF TENNESSEE, ) Cecil Crowson, Jr. NO. 03C01-9602-CC-00067 Appellate C ourt Clerk ) Appellee ) BLOUNT COUNTY ) V. ) HON. D. KELLY THOMAS ) JUDGE RODNEY A. WHITE, ) ) (Sentencing) Appellant )

FOR THE APPELLANT: FOR THE APPELLEE:

Raymond Mack Garner John Knox Walkup District Public Defender Attorney General and Reporter 318 Court Street 450 James Robertson Parkway Maryville, Tennessee 37804-4912 Nashville, Tennessee 37243-0493

Natalee Staats Hurley Lisa A. Naylor Assistant Public Defender Assistant Attorney General 318 Court Street 450 James Robertson Parkway Maryville, Tennessee 37804-4912 Nashville, Tennessee 37243-0493

Michael L. Flynn District Attorney General 363 Court Street Maryville, Tennessee 37804-5906

Charles A. Carpenter Assistant District Attorney General 363 Court Street Maryville, Tennessee 37804-5906

OPINION FILED:

Affirmed

William M. Barker, Judge Opinion The appellant, Rodney A. White, appeals as of right his sentence following his

plea of guilty for driving on a revoked license in violation of the Motor Vehicle Habitual

Offenders Act, a Class E felony. The appellant argues on appeal that the trial court

erred in refusing to grant him full probation or in the alternative by not allowing him to

serve his sentence on community corrections. Additionally, the appellant argues that

the trial court erred in ordering a period of incarceration followed by community

corrections. Having reviewed the record and finding no reversible error, we affirm the

trial court’s judgment.

On August 7, 1995, the appellant was indicted for driving on a revoked license

in violation of the Motor Vehicle Habitual Offenders Act. On October 17, 1995, the

appellant pled guilty to the charged offense and the trial court scheduled a sentencing

hearing on November 28, 1995.

At that hearing, the appellant testified that he was a recovering alcoholic and

had recently started attending outpatient alcoholic dependency programs and AA

meetings. The appellant, who at the time of the hearing was thirty-four years old,

stated that he began drinking when he was seventeen and that this was the first time

he had sought treatment for his alcohol dependency. He also testified that on

previous occasions he had completed sentences of probation without any violations.

The appellant’s wife and mother both testified that since the appellant had begun

treatment for his alcohol addiction, he was a different person.

The trial court considered the appellant’s testimony and that of his family

members, but also noted that the appellant had a significant history of criminal

behavior including six D.U.I. convictions, five driving on a revoked license convictions,

one sexual battery conviction, more than twenty public intoxications, and one habitual

motor vehicle offender adjudication. The court ordered the appellant to serve a two-

year sentence as a Range II multiple offender with six months confinement in the

county jail followed by eighteen months on community corrections.

2 The appellant first argues that the trial court erred by refusing to allow him to

serve his whole sentence on probation or on community corrections. This issue is

without merit.

When an appellant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)

(1990). The burden of showing that the sentence is improper is upon the appealing

party. Id. (Sentencing Commission Comments). This presumption, however, is

conditioned upon an 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). In this case, the record on appeal does not

affirmatively show that the trial court properly considered the statutory guidelines as

provided in Tennessee Code Annotated section 40-35-103, and unfortunately, the

judgment of the trial court is not accompanied by a presumption of correctness.

Accordingly, our review of the appellant’s sentence is de novo.

This appellant has been convicted of more than forty alcohol-related crimes in

the last seventeen years, including six D.U.I. convictions, over twenty public

intoxication convictions, and five convictions for driving on a revoked license. We

recognize that the appellant may now be a recovering alcoholic, and he is to be

commended for seeking treatment and counseling for his alcohol problem, but we also

note that the appellant did not begin his treatment until after his adjudication of guilt in

this case and only eighteen days prior to his sentencing hearing.

The record also reflects that the appellant has previously received fines and

partially suspended jail sentences, but those punishments have had no effect on the

appellant’s continued criminal behavior. Accordingly, we find that some incarceration

is necessary to protect society from the appellant because of his long history of

criminal conduct and because measures less restrictive than confinement have

frequently or recently been applied unsuccessfully to the appellant. See Tenn. Code

3 Ann. § 40-35-103(1)(A) and (C). Clearly, the record does not indicate that the

appellant is entitled to probation.

The appellant argues, however, that he is at least entitled to serve his entire

sentence on community corrections because he meets all of the eligibility criteria for

community corrections. We agree that the appellant is statutorily eligible to be

considered for a community correction sentence. See Tenn. Code Ann. § 40-36-

106(a) (Supp. 1996). Although the appellant is eligible for a community corrections

sentence, he is a Range II offender and thus not presumed to be a favorable

candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (Supp. 1996);

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Moreover, the fact

that the appellant may be eligible for community corrections or some other type of

alternative sentencing does not mean that he is entitled to such sentencing. Given the

appellant’s extensive history of alcohol-related offenses, coupled with a prior violent

felony conviction, we agree with the trial court that confinement for a period of six

months is proper in this case.

The appellant also argues that the trial court improperly imposed split

confinement in this case by first ordering a period of incarceration followed by

community corrections. As authority for that proposition, the appellant relies upon the

unreported opinion of a panel of this Court in State v. Richmond, No. 02C01-9410-CR-

00217 (Tenn. Crim. App., Jackson, Sept. 13, 1995). The appellant misreads

Richmond. In that case, a panel of our Court held that while Tennessee Code

Annotated, section 55-10-616(c), precluded a trial court from suspending the sentence

for one convicted of violating the habitual motor vehicle statute, that prohibition did not

preclude a trial court from considering placing an habitual motor vehicle offender on

community corrections since a community corrections sentence is not probation.

Nothing in that case suggests that a sentence involving a period of incarceration

4 followed by community corrections was improper.

The judgment of the trial court is affirmed.

WILLIAM M. BARKER, JUDGE

CONCUR:

JOSEPH M. TIPTON, JUDGE

CURWOOD WITT, JUDGE