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State v. Hopper3/29/1999
onclude that the six (6) year sentence was both reasonable and appropriate. There is no dispute that the sentence was properly enhanced by appellant's criminal history. Tenn. Code Ann. § 40-35-114(1). Even if we considered the application of the mitigating factor as urged by the appellant, it would merit little or no weight. As mentioned above, burglary involves entering a building, other than a habitation, with the intent to commit a felony, theft or assault, or with the actual commission or attempt to commit one of those enumerated offenses. Tenn. Code Ann. § 39-14-402(a). By its very nature, the offense of burglary does not include serious bodily injury or the threat of such injury to other persons.
We are not prepared to hold that mitigating factor (1) applies merely because the appellant's actions fit the elements of the convicted burglary offense. To do so would effectively require trial courts to mitigate a defendant's sentence any time there is a conviction of burglary. Our General Assembly did not intend that result when it enacted section 40-35-113 of the Tennessee Code. The appellant's six (6) year sentence is affirmed.
The appellant also contends that the trial court should have granted him a sentencing alternative to incarceration. Although the appellant was convicted of a Class D felony, he was sentenced as a multiple offender and, therefore, was not presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (Supp. 1995). Moreover, the record reflects that the appellant has a criminal history evincing a clear disregard for the laws and morals of society, and that past efforts to rehabilitate him have failed. Tenn. Code Ann. § 40-35-102(5).
The trial court reviewed the record and determined that appellant's lack of amenability to correction precluded the imposition of an alternative sentence. Several factors supported that finding: (1) appellant failed to appear for his original sentencing hearing and continued to drive after the D.U.I. conviction; (2) he was previously convicted of felony escape after leaving a Community Corrections work program; (3) he was previously convicted of three felonies and several misdemeanors; and (4) he was previously caught by police after fleeing to avoid an arrest. The record shows that measures less restrictive than confinement have been applied unsuccessfully to the appellant. Accordingly, the trial court properly denied any sentencing alternative to incarceration.
Based upon the foregoing, the judgment of the trial court is affirmed with costs taxed to the State of Tennessee.
WILLIAM M. BARKER, SPECIAL JUDGE
CONCUR:
DAVID G. HAYES, JUDGE
JOE G. RILEY, JUDGE
JUDGMENT
Came the appellant, Timothy Alan Hopper, by and through counsel, and also came the Attorney General on behalf of the State, and this case was heard on the record on appeal from the Circuit Court of Hardin County; and in consideration thereof, this Court is of the opinion that there is no reversible error in the judgment of the trial court.
In accordance with the opinion filed herein, it is, therefore, ordered and adJudged that the judgment of the trial court is affirmed, and the case is remanded to the Circuit Court of Hardin County for the execution of the judgment of that court and for the collection of costs accrued below.
It appearing that the appellant is indigent, costs of this appeal will be paid by the State of Tennessee.
William M. Barker, Special Judge
David G. Hayes, Judge
Joe G. Riley, Judge
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