IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED JULY SESSION, 1998 October 30, 1998 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9708-CC-00322 ) Appellee, ) ) ) FRANKLIN COUNTY VS. ) ) HON . THOM AS W. G RAHAM LARRY ALAN MORRIS, ) JUDGE ) Appe llant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE: VICKI FRYE-FOWLKES JOHN KNOX WALKUP Firs t Avenu e, N.W . Attorney General and Reporter Win cheste r, TN 37 398 DARYL J. BRAND Senior Counsel Fifth Avenu e North Nashville, TN 37243 J. MICHAEL TAYLOR District Attorney General STEVEN M. BLOUNT Assistant District Attorney Dinah Shore Blvd. Win cheste r, TN 37 398

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION On May 15, 1997, Appellant, Larry Alan Morris, pled guilty to aggravated assa ult by causing serious bodily injury with the use of a deadly weapon. The parties agreed, as a part of the plea agreem ent, that Appellan t would serve a five year senten ce. The mann er of service was left to the discretion of the trial cour t.

Fran klin Coun ty Circuit Court Judge, the Honorable Thomas W. Graham, sentenced Appellant to five years imprisonment on July 21, 1997. At the request of the State, the trial court noted on the judgment that the court suggested that Appellant be placed in a special need s facility. Appella nt appe als from the length of his sentence and a denial of community corrections placement or other alternative s entenc e.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

The facts presented at the sentencing hearing revealed that on June 22, 1996, Appellant was at the Estill Springs M obile Hom e Park in Fran klin County, drinking and hanging out with friends. An altercation arose between Appellant and the victim, Gary Taylor, due either to Mr. Taylor’s lack of parking expertise or due to Mr. Taylor yelling at his father, a friend of Appellant. Each participant recounts that the other was the first to escalate to physical violenc e. Th e victim remem bers hitting App ellant once or twice with a chain. Mr. Taylor’s father attempted to break up the fight, but Mr. Taylor responded by telling Appellant that he was going to get a gun and blow Appellant’s head off. Mr. Taylor went looking for a gun, an d indee d found one, bu t laid it aside. Mr. Taylor then went to the

-2- trailer where Appellant was. In response to Mr. Taylor’s threats, Appellant emerged from the trailer, wielding a steak knife. The two again became entangled in an altercation. Both parties agree that M r. Taylor jum ped on Appella nt, attempting to wrestle the knife from A ppellant’s grasp. A ppellant stabbe d Mr. Taylor four times , caus ing se rious in jury to M r. Taylo r’s head and lung. Mr. Taylor got up, ran into the road, and collapsed.

Proof prese nted a t the se ntenc ing he aring s howe d that A ppella nt as a lengthy history of mental health problems, some related to alcohol and marijuana abuse. Appellant has been hospitalized several time s, and doctors have prescribed antipsych otic med ication. Ap pellant’s w ife testified that when not taking his medicine, A ppellant was, at tim es, delusional, wo uld loose his tem per, and loose control of his actions . Accord ing to the presentence report, Appellant has a h istory of non -comp liance with his treatm ent prog ram.

Appellant also has a history of arrests for violent behavior, including an incident where he shot into a newly completed house after a dispute with the contractor, and an incident where he beat up a mechanic because he had impro perly repaired App ellant’s wife’s car. Appellant has been convicted for reckless driving, driving under the influence of an intoxicant, and driving with a revoked license. A t the time o f this crime, charges were pending against Appellant for driving under the influence of an intoxicant, driving on a revoked license, and possession of marijuana.

-3- When a defe ndan t com plains of his or her sen tence, w e mus t condu ct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35- 401(d). The burden of showing that the sentence is improper is upon the appealing party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. This pre sump tion, howe ver, is cond itioned up on an a ffirmative showing in the record that the trial court considered the sentencing principles and all the releva nt facts an d circum stance s. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The Sente ncing Refo rm A ct also provid es tha t the trial c ourt sh all place on the record either orally or in writing what enhancement or mitigating factors it found, if any. These findings are crucial for review of the trial c ourt’s decis ion up on ap peal.

LENGTH OF SENTENCE

Appellant complains that he received th e “maxim um sen tence” for his conviction. However, as a Range I offender convicted of a Class C felony the maximum sente nce th e App ellant c ould re ceive w as six (6) years. In any event any issue with respect to the length of sentence has been waived by the e ntry and acceptanc e of Appellant’s g uilty plea wherein the parties agreed to a sentence of five (5) years. Under these circumstances Appellant may not appeal from the leng th of the sentenc e impose d. Tenn. R . Crim. P. 37(b)(2 )(ii).

-4- DENIAL OF ALTERNATIVE SENTENCING

Tennessee Code Annotated §40-35-103 sets out sentencing considerations which are guidelines for determining whether or not a defendant shou ld be incarcerated. These include 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,” the determination that “confinement is particularly suited to provide an effective deterrence to others likely to c omm it similar offenses,” or the determination that “measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.” Ten n. Co de An n. § 40 -35-1 03(1) . In dete rminin g the s pecific sentence and the possible combination of sentencing alternatives, the court s hall consider the followin g: (1) the e vidence , if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arg umen ts as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on the enhancemen t and mitigating factors in §§ 40-35-113 and 40-35- 114; and (6) a ny statem ent the de fendan t wishes to mak e in his o wn be half about sentencing. Tenn. Code Ann.§ 40-35-210(b). In addition, the legislature establish ed certa in senten cing princ iples whic h include the followin g:

(5) In recog nition that sta te 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 mora ls of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration, and

-5- (6) A defendant who does not fall within the parameters of subdivision (5) and is an espec ially mitigated or standa rd offender convic ted of a Class C, D, o r E felon y is presumed to be a favorable cand idate for alternative sentencing options in the absence of evidence to the contrary.

Tenn. Code Ann.§ 40-35-102.

An examination of the statutes set out above, reveal that the intent of the legislature is to encourage alternatives to incarceration in cases w here defend ants 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 defend ants whose criminal histories indicate a clear disregard for the laws and morals of society and a failure of past efforts at rehabilitation.

As a Range I standard offender convicted of a Class C felony A ppella nt is presu mptive ly entitled to some form of sentencing apart from one involving incarceration in the penitentiary. However, for the reasons discussed below a placement in the community corrections program is not one of the alternatives for which Appellant is eligible.

Community Corrections

The Community Corrections Act of 1985 established a community based alternative to incarceration for certain offenders and set out the minimum eligibility requirem ents for a placement in the program. Tenn. Code Ann. Sec. 40-36-101 -- 306. One of the eligibility requirements for community corrections is a non-viole nt crime . Tenn. Code Ann. Sec. 40-36-106(a)(3), (5), (6). Given the -6- nature of the crime in the instant case and Appellant’s record of violent acts, he is ineligible for community corrections unless he can dem onstra te that d espite his general ineligibility for the program, he has “special needs” due to alcohol or drug abuse, or mental health problems and that those needs can be better served in the com munity rather than a co rrectional facility. Tenn. Code Ann. Sec. 40-36- 106(c).

In this case the record reveals that Appellant does indeed have some mental health problems due to alcohol and drug abuse. However, the record also shows that com mun ity base d treatm ent pro gram s have failed w ith App ellant in the past. Appellant has a history of non-compliance with such programs. Indeed, after the offense in this case, Appellant again failed in treatment and was hospitalized after threatening his daughter and a neighbor. The trial court was entirely correct in finding that any special needs Appellant had would in fact be better served in, rather than out of, the p enitentiary. T hus, it was not error to deny Appellant a placement in community corrections.

Other Alternative Sentencing

Desp ite his ineligibility for community corrections Appellant remains presu mptive ly entitled to certain other forms of non-incarcerative sentencing.

Howeve r, as stated earlier, this presumption may be rebutted by proof that confinem ent is nec essary: (1) to protect society from a defendant with a long history o f crimin al mis beha vior, (2) to avoid depreciating the seriousness of the offense, (3) to deter others who are likely to commit similar crimes, or (4) because measures less restrictive than confinement have been applied to the -7- defendant without success. In the matter sub judice, the trial court found that confinement was necessary to protect the public from Appellant’s violent outbursts. This finding was based upon evidence of Appellant’s inability to control his temper, to responsibly follow a cours e of ps ychiatr ic treatment, and to control his alcohol consumption.

The trial court further fou nd tha t confin eme nt is ne cess ary to a void depreciating the seriousness of the offense. The trial court noted that Appellant used a deadly w eapon in inflicting serio us injury tha t nearly killed h is victim. The court also indicated that Appellant’s repe ated failure to successfully complete or maintain treatment for his alcohol and mental problems demonstrates that measures less restrictive than confin eme nt have not be en su cces sful in rehabilitating Appellant. Upon this evidence, the trial court found that Appellant was not a suitable candidate for alternative sentencing. We agree.

Accordingly, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAYES, JUDGE -8-