IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED NOVEMB ER SESSION, 1998 February 18, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710-CC-00436 ) Appellee, ) ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS, JR. JIMMY LEE NOAH, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF BLOUNT COUNTY

FOR THE APPELLANT: FOR THE APPELLEE: MACK GARNER JOHN KNOX WALKUP Public Defender Attorney General and Reporter GERALD L. GULLEY, JR. TODD R. KELLEY P.O. Box 1708 Assistant Attorney General Knoxville, TN 37901-1708 425 Fifth Avenu e North Nashville, TN 37243 MIKE FLYNN District Attorney General PHILIP MORTON Assistant District Attorney General Court Street Maryville, TN 37804

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defendant, Jimmy Lee Noah, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate P roced ure. H e was convic ted, up on his pleas of guilty, of driving on a revoked license, reckless driving, reckless endan germe nt, and felony evading arrest. 1 The agreed sentences for the two Class E felonies were two years as a Range I standard offender. The agreed sentences for the Class B misdem eanors we re six months . All sentences w ere to be served concurrently. The manner of service of the sentences was left to the discretion of the trial judge. The judge ordered that the felony sentences be served in the Department of Correction, with the misde mean or jail senten ces to be served concurrently. The Defendant appeals from the trial judge’s order that the sentences be served in confinement. We affirm the judgment of the trial court.

When an accused challenges the length, range, or manner of service o f a sentence, this Court has a duty to conduct a de novo review of th e sente nce with a presumption that the determin ations mad e by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 19 91).

Tenn. Code Ann. §§ 55-50-504; 55-10-205; 39-13-103; 39-16-603(b).

-2- When conducting a de novo review of a senten ce, this Co urt must consider: (a) the evidence , if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of senten cing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehab ilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863 (Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.

A defen dant w ho “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.” Tenn. Code Ann. § 40-35-102(6). Our sentencing law also provides that “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 e fforts at r ehab ilitation s hall be given first priority regarding sentencing involving incarceration.” Id. § 40-35 -102(5). T hus, a de fendan t sentenc ed to eight years or less who is not an offend er for w hom incarc eration is a priority is presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption. However, the act does not provide that all offende rs who meet the criteria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances presen ted in eac h case . See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, S.W .2d 229 , 235 (T enn. 19 86)).

-3- Additionally, the principles of sentencing reflect that the se ntenc e sho uld be no greater than that deserved for the offense committed and should be the least severe me asure necessary to achieve the purposes for which the sentence is imposed . Tenn. Co de Ann. § 4 0-35-103(3 )-(4). The cou rt should also consider the potential for rehabilitation or treatment of the defendant in determining the senten ce alterna tive. Id. § 40-35-10 3(5).

About 1:30 one morning, a Blount County deputy sheriff observed a vehicle, driven by th e Defe ndant, cross the center line a couple of times and noted that the vehicle wa s not pro perly displa ying a licen se plate. T he dep uty initiated a stop of the ve hicle b ut the d river refu sed to stop. A length y pursu it followed, during which two other law enforcement vehicles eventually joined the pursuit. At some point the D efenda nt stoppe d the veh icle and a ttempte d to flee on foot. The officers were able to catch and tackle the Defendant, and the charges which led to his guilty pleas followed.

The presen tence re port reflects that at the time of sentencing the Defendant was thirty-one years old, single, and employed as a concre te finisher.

He testified that h e com pleted the eleventh grade. The Defendant has a rather lengthy history of criminal conduct spanning a ten-yea r period. His convictions include possession of marijuana, two DUIs, three convictions for driving on a revoked license, and tw o felon y habitu al traffic o ffende r convic tions in Georgia.

He had violated probation in Georgia and subsequently had served time in the Geo rgia penitentiary. In addition, while he was out on bond awaiting disposition of the charges in the case sub judice, he was aga in arrested for driving on a revoked license and was convicted of that offense in the Blount County General -4- Sessions Court. He was sentenced to ten days in jail and six months probation for that offense.

The Defe ndan t testified that on the m orning in question, when the o fficers turned on their blue lights, “it scared me and I run.” He testified that he fled from the officers because he was afraid of being shot or beaten. He never gave a rational or reasonable explanation of why he was afraid of being shot or beaten by the Blount County deputy sheriffs who pursued him. He admitted that at the time the officers attempted to stop him, he had been drinking and smoking marijuana. He admitted that he had been a regular user of ma rijuana on a d aily basis for several years, but he stated he had recently quit. A drug screen administered in conjunction with the preparation of the presentenc e report was negative. He testified that he stopped smoking marijuana at the time he was arrested for the cha rges disc ussed herein.

At the conclusion of the sentencing hearing, the trial judge stated that he was denying any senten ce alte rnative to con finem ent be caus e of the Defe ndan t’s lengthy criminal re cord, his decision to continue driving on a revoked license even after being charged in these cases, the circumstances surrounding the offense, and the De fenda nt’s len gthy his tory of m arijuan a use . The ju dge s pecific ally found that the Defendant failed to demonstrate any potential for rehabilitation.

In this appeal, the D efendant as ks this Court to reverse the judgment of the trial court and remand this case for an alternative sentence such as split confinement, work release, or full probation. We decline to do so. Trial judges are traditionally vested with broad discretionary authority in sentencing matters.

-5- Based on the Defe ndan t’s leng thy crim inal rec ord for offens es sim ilar to these, the failure of less restrictive measures and past attempts at rehabilitation, and the Defe ndan t’s continued disre gard for the laws of this state, w e are un able to conclude that the trial judge erred or abused his discretion by ordering that the Defen dant’s se ntence s be serv ed in con fineme nt.

The judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JAMES CURWOOD WITT, JR., JUDGE

___________________________________ L.T. LAFFERTY, SENIOR JUDGE

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