State v. Douglas Rains ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
MAY 1999 SESSION
July 12, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9808-CC-00249
Appellee, )
) BENTON COUNTY
VS. )
) HON. JULIAN P. GUINN,
DOUGLAS McARTHUR RAINS, ) JUDGE
)
Appellant. ) (DUI, HMVO Violation)
FOR THE APPELLANT: FOR THE APPELLEE:
TERRY J. LEONARD PAUL G. SUMMERS
9 North Court Square Attorney General and Reporter
P.O. Box 957
Camden, TN 38320 J. ROSS DYER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
G. ROBERT RADFORD
District Attorney General
BETH BOSWELL
Assistant District Attorney General
P.O. Box 686
Huntingdon, TN 38344-0686
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Douglas McArthur Rains, pled guilty in Benton County to
violating the Habitual Motor Vehicle Offender law ("HMVO"), a Class E felony, and
to driving under the influence ("DUI"), third offense.1 The trial court sentenced
defendant as a Range I standard offender to one year incarceration on the HMVO
offense, and to eleven months, twenty-nine days on the DUI offense. The court
ordered the sentences to run consecutively. In this appeal as of right, defendant
contends that the trial court erred in denying him an alternative sentence and in
ordering consecutive service of his sentences. Upon our review of the record, we
AFFIRM the judgment below.
ALTERNATIVE SENTENCING
The presentence report reflects that defendant has three prior DUI
convictions as well as a conviction for public intoxication. He received a partially
suspended sentence on each of the DUI offenses. At the sentencing hearing,
defendant admitted to being an alcoholic, but testified that he had been alcohol free
for seven months.
In sentencing defendant, the trial court rejected alternative sentencing
because of the circumstances of the offense, defendant's prior criminal record, and
his refusal to accept responsibility for his actions. The court additionally noted that
probation had been tried and failed, and that there was "no reason to believe that
probation in this instance would serve the ends of justice." The judge further stated
that he considered confinement necessary to protect society and to avoid
depreciating the seriousness of the offenses.
1
Defendant was indicted for DUI, fourth offense. At the sentencing hearing,
defendant's attorney referred to defendant's conviction as a fourth offense DUI. However,
the judgment form indicates that defendant was convicted of DUI, third offense.
2
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Under the Criminal Sentencing Reform Act of 1989, trial judges are
encouraged to use alternatives to incarceration. 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. Tenn. Code Ann. § 40-35-102(6).
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d at 169. Additionally, a court should consider the
defendant’s potential or lack of potential for rehabilitation when determining if an
alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State
v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
Defendant has not carried his burden of demonstrating that the trial court's
denial of alternative sentencing in this case is improper. Indeed, we agree with the
trial court that incarceration is appropriate in this case. Defendant has a significant
history of criminal conduct; repeated episodes of driving under the influence are
very serious offenses; and less restrictive measures have been repeatedly, but
unsuccessfully, applied. Moreover, we are convinced that the specter of significant
jail time is particularly appropriate in this state's attempts to keep repeat drunk
drivers off the road. This issue is, therefore, without merit.
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CONSECUTIVE SENTENCES
With respect to ordering defendant's sentences to run consecutively, the trial
court stated that it was necessary "to jail [defendant] as long as possible to keep
[him] out of the vehicle before [he] kill[ed] somebody's child or [himself]."
A court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that:
[t]he defendant is an offender whose record of criminal activity is
extensive; [or]
[t]he defendant is a dangerous offender whose behavior indicates little
or no regard for human life, and no hesitation about committing a
crime in which the risk to human life is high.
Tenn. Code Ann. § 40-35-115(b)(2), (4); see also State v. Black, 924 S.W.2d 912,
917 (Tenn. Crim. App. 1995). Furthermore, the court is required to determine
whether the consecutive sentences (1) are reasonably related to the severity of the
offenses committed; (2) serve to protect the public from further criminal conduct by
the offender; and (3) are congruent with general principles of sentencing. State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
Although the trial judge did not state specifically which statutory factor he was
utilizing for imposing consecutive sentences, the tenor of his remarks indicate that
he considered defendant to be a dangerous offender. See T.C.A. § 40-35-
115(b)(4). This Court has found a defendant with DUI convictions to satisfy that
definition. See, e.g., State v. Richard E. Nelson, C.C.A. No. 01C01-9601-CR-
00034, Wilson County (Tenn. Crim. App. filed September 18, 1997, at Nashville),
perm. to app. denied (Tenn. 1998); State v. Anthony Raymond Bell, C.C.A. No.
03C01-9503-CR-00070, Roane County (Tenn. Crim. App. filed March 11, 1996, at
Knoxville), perm. to app. denied (Tenn. 1996).
Furthermore, defendant is an offender whose record of criminal activity is
"extensive." T.C.A. § 40-35-115(b)(2). He has four prior convictions, beginning in
1991, and all involve intoxication. Given that the instant DUI offense is of a similar
nature, it is "particularly appropriate that we consider this prior criminal activity."
Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996) (holding
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consecutive sentences appropriate where the defendant had four similar prior
convictions). We further find that the effective sentence of one year, eleven months
and twenty-nine days is reasonably related to the severity of defendant's offenses
and will protect the public from further episodes of defendant's drunk driving. See
Wilkerson, 905 S.W.2d at 939. This issue is, therefore, without merit.
The judgment below is affirmed.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOHN H. PEAY, JUDGE
____________________________
THOMAS T. WOODALL, JUDGE
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