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State v. Bellamy9/3/2003
o walk. In the report, the defendant explained that on the night of the offenses, he "bumped" the back of Mr. Lane's car because the brakes had gone out on his truck. He said he passed Mr. Lane's car, tried to negotiate a curve, and ran head-on into a tree. He said that the wreck crippled him for life and that he was sorry for hurting Mr. Lane.
The presentence report reveals that the defendant has been committing crimes since he was nineteen years old and that he has prior misdemeanor convictions for DUI, driving on a revoked license, violating the registration law, violating the implied consent law, contempt of court, reckless endangerment, public intoxication, assault, resisting arrest, theft, disorderly conduct, larceny, possession of marijuana, and allowing a dog to run at large. According to the report, probation violation warrants were filed against the defendant in 1978 and 1989, and he has had a sentence of probation revoked at least once. It also shows that he has a juvenile history of difficulties with the law.
The trial court noted that the defendant was presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). However, it denied the defendant's request for alternative sentences, stating that although some of the defendant's prior misdemeanor convictions were entitled to little or no weight, his prior criminal record as a whole was "horrendous." The trial court determined that the defendant had tried to improve himself and had attempted to work but that the report's unfavorable factors heavily outweighed any favorable factors. It ordered that the defendant serve his sentences in confinement.
The defendant claims that the trial court erred by not granting his request for alternative sentences and that, at most, he should have been ordered to serve one year in confinement and serve the remainder of his sentences on probation. He contends that although his prior criminal history is extensive, that factor alone was not enough to overcome the presumption that he is a favorable candidate for alternative sentencing because his prior offenses were not serious crimes and because most of them were alcohol-related. Finally, he contends that he should have received alternative sentences because he has accepted responsibility for his actions by pleading guilty. The state claims that the trial court properly sentenced the defendant. We agree with the state.
When a defendant appeals the manner of service of a sentence imposed by the trial court, this court conducts a de novo review of the record with a presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-401(d). However, the presumption of correctness 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). The burden is on the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
When determining if incarceration is appropriate, a trial court should consider that (1) confinement is needed to protect society by restraining a defendant who has a long history of criminal conduct, (2) confinement is needed to
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