State v. Haynes ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE 1997 SESSION August 12, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 03C01-9608-CC-00321
Appellee, )
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.,
STEVEN J. HAYNES, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
419 High St.
Maryville, TN 37804 MARVIN E. CLEMENTS, JR.
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
PHILLIP MORTON
Asst. District Attorney General
Blount County Courthouse
Maryville, TN 37804
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was declared a Motor Vehicle Habitual Offender in
September 1993. During a five month period from August 1995 to January 1996, the
defendant was charged with violating the Motor Vehicle Habitual Offenders Act along with
various other traffic related offenses. On February 14, 1996, he pled guilty to all charges.
After a hearing, he received an effective sentence of six years.
In this appeal as of right, the defendant complains that the trial court erred
when it refused to place him on probation or in Community Corrections. After a review
of the record, we find no error and affirm the judgment of the court below.
As noted above, the defendant pled guilty to numerous charges.
Specifically, he pled guilty to four counts of violating the Motor Vehicle Habitual Offenders
Act, two counts of driving on a revoked license, one count of failure to yield, one count
of evading arrest, and two counts of reckless endangerment. He received a one year
sentence for the Motor Vehicle Habitual Offender violation in case #9260; a one year
consecutive sentence for the Motor Vehicle Habitual Offender violation in case #9340;
a two year consecutive sentence for the Motor Vehicle Habitual Offender violation in case
#9335; and a two year consecutive sentence for the Motor Vehicle Habitual Offender
violation in case #9343. The sentences for the remaining convictions are concurrent to
case #9260. Thus, the defendant has an effective sentence of six years.
At his sentencing hearing, the defendant testified that he had known that
he was not supposed to drive, and that he had not driven prior to August 1995. He
testified that on August 16, 1995, he had had to drive to where his nephew was residing
in order to tell the nephew that he needed a ride to work. The defendant’s wife usually
took him to work but she was unable to do so on this day because she was hospitalized.
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While the defendant was on his way to see his nephew, he was stopped by police officers
for having only one headlight.
The defendant testified that after this occurred, he had continued to drive
because he thought that any punishment he would receive from the first offense would
run concurrently with any subsequent offenses. Consequently, the defendant again
drove his vehicle on October 21, 1995. The defendant testified that he had been taking
the vehicle to be repaired when he was stopped by police officers.
Then on November 5, 1995, the defendant decided to drive to his mother’s
house for dinner. He testified that he had had to drive because his wife was away taking
care of a relative. While the defendant was on his way, police officers recognized him
and attempted to pull him over. The defendant, however, sped up in an effort to get away
from the officers. He was arrested the next day at his home.
The final violation occurred on January 13, 1996. This time the defendant
had just picked up his vehicle from the repair shop and was returning home when he was
spotted by police officers. Again the defendant increased his speed in order to get away
from the officers. He was arrested later that evening at his home.
The defendant admitted that while trying to elude the police he had
exceeded the speed limit. However, he denied forcing other vehicles off the road in order
to avoid arrest. The defendant also admitted that he had driven his vehicle about six
other times when he had not been stopped by police. He testified that important reasons
had led him to decide to drive.
The defendant testified that at the time of the hearing he was employed as
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a heavy equipment operator with Earthworks, Inc. He further testified that he is married
and has three children under the age of eighteen. He also testified that he does not
abuse drugs or alcohol. His pre-sentence report indicates a history of criminal offenses
that are mainly motor vehicle related.
The defendant now appeals and argues that he should have been placed
on full probation or in Community Corrections.1 When a defendant complains of his or
her sentence, we must conduct a de novo review with a presumption of correctness.
T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the
appealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. This
presumption, however, “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).
T.C.A. § 40-35-103 sets out sentencing considerations which are guidelines
for determining whether or not a defendant should be incarcerated. These include the
need “to protect society by restraining a defendant who has a long history of criminal
conduct,” the need “to avoid depreciating the seriousness of the offense,” the
determination that “confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses,” or the determination that “measures less
restrictive than confinement have frequently or recently been applied unsuccessfully to
the defendant.” T.C.A. § 40-35-103(1).
In determining the specific sentence and the possible combination of
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W e recognize that there has been some question as to whether a defendant convicted of
violating the M otor V ehicle Ha bitual O ffenders Act c an b e se nten ced to probation . W e ha ve chos en to
follow the concurring opinion in State v. Michael Richmond, No. 02C 01-9 410 -CR -002 17, S helby Cou nty
(Tenn. Crim. App. filed Sept. 13, 1995, at Jackson). Most cases also appear to follow this course. Thus,
our a nalysis add resses the appro priatenes s of d enying both prob ation a nd C om m unity Co rrections.
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sentencing alternatives, the court shall consider the following: (1) any evidence from the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and the arguments concerning sentencing alternatives, (4) the nature and characteristics
of the offense, (5) information offered by the State or the defendant concerning
enhancing and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the
defendant’s statements in his or her own behalf concerning sentencing. T.C.A.
§ 40-35-210(b). In addition, the legislature established certain sentencing principles
which include the following:
(5) In recognition that state prison capacities and the funds to
build and maintain them are limited, 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 sentencing involving
incarceration; and
(6) A defendant who does not fall within the parameters of
subdivision (5) and is 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.
T.C.A. § 40-35-102.
After reviewing the statutes set out above, it is obvious that the intent of the
legislature is to encourage alternatives to incarceration in cases where defendants are
sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,
it is also clear that there is an intent to incarcerate those defendants whose criminal
histories indicate a clear disregard for the laws and morals of society and a failure of past
efforts to rehabilitate.
In this case, the trial judge stated that while the defendant was presumed
to be an eligible candidate for probation, the presumption had been overcome by several
factors. The court cited the defendant’s “long history of criminal conduct,” the need to
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avoid depreciating the seriousness of the offense, and the defendant’s lack of potential
for rehabilitation. The trial judge pointed out that the defendant had driven many times,
although he knew he should not, and was only charged with four driving violations despite
his being behind the wheel numerous times. The trial judge further pointed out that after
being stopped once, the defendant continued to drive and ultimately received four
different sets of offenses in a five month period. He also noted that the defendant was
dangerous because of his attempts to evade arrest and disrupt traffic. He concluded that
the defendant had made a conscious decision to violate the law. Therefore, the trial judge
ordered the defendant to serve his six year sentence in the Department of Correction.
Thus, it is quite clear that the trial court’s conclusion is amply supported by
the evidence. Probation is not proper for this defendant; we affirm the trial court’s
decision to deny probation.
We now turn to the question of whether the defendant should have been
granted Community Corrections. The Community Corrections Act of 1985 establishes a
community based alternative to incarceration for certain offenders and sets out the
minimum eligibility requirements. T.C.A. §§ 40-36-101 through -306. This Act does not
provide that all offenders who meet the standards are entitled to such relief. State v.
Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
The purpose of the Tennessee Community Corrections Act of 1985 is to
establish a policy to punish selected, nonviolent felony offenders through community-
based alternatives to incarceration. The goals of the Community Corrections Act include
the following: maintaining safe and efficient community correctional programs, promoting
accountability of offenders to their local community, filling gaps in the local correctional
system through the development of a range of sanctions and services, reducing the
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number of nonviolent felony offenders in correctional institutions and jails, and providing
“opportunities for offenders demonstrating special needs to receive services which
enhance their ability to provide for their families and become contributing members of their
community . . . .” T.C.A. § 40-36-104(1)-(5).
In this case, the trial court also denied the defendant’s request for
Community Corrections. This determination was based on the same reasoning for
denying the defendant’s request for probation. Again, as the conclusion was sufficiently
supported by the evidence, we see no reason to disturb the trial court’s decision.
Thus, we conclude that the defendant has failed to carry his burden of
demonstrating that the evidence preponderates against the trial court’s findings, and
therefore, we affirm the judgment below.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
JOSEPH M. TIPTON, Judge
_______________________________
J. CURWOOD WITT, JR., Judge
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