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State v. Green8/9/1999
ons for theft, three convictions for driving under the influence, two convictions for reckless driving, two convictions for possession of a controlled substance, two convictions for driving on a suspended license, four convictions involving public intoxication, three convictions for reckless endangerment, and one conviction for assault. The record also indicates that the appellant had previously had a suspended sentence revoked and that, while in jail on the present charges, the appellant was arrested for simple possession of marijuana and drug paraphernalia while incarcerated in a penal facility.
In determining the appropriate sentence for the appellant's conviction of vehicular homicide, the trial court applied one enhancement factor, i.e., that the appellant has a history of criminal behavior, but concluded that no mitigating factors were applicable. See Tenn. Code Ann. § 40-35-114(1) (1997). The appellant's only challenge to the length of the sentence imposed by the trial court is that he should have received a sentence of eight years rather than a ten year sentence.
When there are enhancement factors and no mitigating factors, the trial court may set the sentence above the minimum within the applicable sentencing range, but still within the range. Tenn Code Ann. § 40-35- 210(d)(1997). The appellant was convicted as a range I offender of a class B felony. Thus, the sentence range for the appellant's conviction is eight to twelve years. See Tenn. Code Ann. § 40-35-112(a)(2) (1997). The court imposed a sentence of ten years. We find the length of this sentence justified and clearly not excessive under the guidelines of the 1989 Sentencing Act.
Additionally, the trial court denied any form of alternative sentence including probation. As the court imposed a sentence of ten years, which we have found to be justified, the appellant is not eligible for a sentence involving probation. Tenn. Code Ann. § 40-35-303(a) (1997). Moreover, we conclude that a sentence of confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct and because measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the appellant. See Tenn. Code Ann. §40-35-103(1)(A), -103(1)(C) (1997). This contention is without merit.
VI. Conclusion
After a review of the record, we find no error requiring reversal. The judgments of conviction and sentences entered by the trial court are affirmed.
DAVID G. HAYES, Judge
CONCUR:
(S ((See sepaarate Concurring opinion)
JOHN H. PEAY, Judge
JOHN EVERETT WILLIAMS, Judge
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