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 3