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State v. Smith3/19/2003
I. Factual Background
According to the presentence report, the appellant was declared to be a motor vehicle habitual offender on July 11, 2000. On August 26, 2000, Patrolman Dwayne Marion of the Cowan City Police Department responded to a call concerning a reckless driver on Water Tank Road. Patrolman Marion attempted to stop the vehicle, but the driver, later identified as the appellant, refused to stop. Eventually, the appellant abandoned his vehicle and fled on foot. After a short chase, Patrolman Marion apprehended the appellant. In his affidavit of complaint, Patrolman Marion noted that the appellant
had a strong odor of alcoholic beverage on or about his person. [The appellant] stated that he had been drinking and that he did not have a valid driver's license. He stated that he did not stop because his license was revoked. . . . [The appellant] refused to submit to an intoximeter test.
The Franklin County Grand Jury indicted the appellant, charging him with fourth offense driving under the influence , violating the implied consent law, felony evading arrest, evading arrest, reckless driving, violating the Motor Vehicle Habitual Offenders Act, and resisting arrest. On May 11, 2001, the appellant pled guilty to felony evading arrest and operating a motor vehicle in violation of the Motor Vehicle Habitual Offenders Act. Tenn. Code Ann. §§ 39-16-603(b) (1997), 55-10-616 (1998). The parties agreed that the appellant would be sentenced on each conviction to one year and one day, with the sentences to be served consecutively for an effective sentence of two years and two days. Pursuant to the plea agreement, the trial court determined the manner in which the sentences would be served. Following a sentencing hearing, the trial court ordered the appellant to serve 120 days in the county jail, with the balance of the sentences to be served in the community corrections program. On appeal, the appellant challenges the requirement that he serve 120 days confinement in the county jail.
II. Analysis
When an appellant challenges the length, range, or manner of service of a sentence, this court conducts a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, this presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, this court must consider (1) the evidence, if any, received at trial and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of the offenses; (5) any mitigating or enhancement factors; (6) any statements made by the appellant on his own behalf; and (7) the appellant's potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103 (1997), -210 (Supp. 2002). See also Ashby, 823 S.W.2d at 168. The burden of showing that a sentence was improper is on the appellant. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Tennessee Code Annotated section 40-35-102(5) provides that only "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 efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration." A defendant who does not fall within this class of offenders and who is "an especially mitigated or standard offender convicted of a Class C,
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