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State v. Simonton10/3/2005
hin Covington. Reverend Whitley testified that Defendant publicly acknowledged his offense in front of his church congregation. Ms. Cook and Peter Simonton said that Defendant was well- known in the community and was well-respected, and Ms. Cook said that many people had spoken to her about the offense. The State did not present any proof that the individuals in Defendant's community who were aware of the offense were "individuals likely to commit similar crimes." Hooper, 29 S.W.3d at 11. Be that as it may, we need not reach the question of whether the community's awareness of Defendant's offense was "beyond that normally expected in the typical case." Id.
Although Defendant argues that he no longer drives or drinks alcohol, he was serving a nine-month sentence at the time of the sentencing hearing for a DUI offense that occurred only two months before the offense supporting the current charges. Defendant has six prior DUI convictions beginning in 1980. Other than his 2001 DUI conviction, his DUI sentences were either entirely suspended or suspended after service of a minimal period of confinement. Defendant's repeated commission of similar offenses despite his numerous arrests and convictions support a finding that a sentence of confinement is necessary based on a need of specific deterrence even under the Hooper analysis. See id. at 12.
Unlike the situation presented in Hooper, however, deterrence was not the only basis supporting the trial court's finding that confinement was appropriate. Defendant has been committing DUI offenses for approximately twenty years. Defendant has been extended repeated sentences involving no or minimal periods of confinement which have failed to deter Defendant from driving while intoxicated. See Tenn. Code Ann. * 40-35-103(1)(A) and (C). Based on the foregoing, we conclude that Defendant has failed to meet his burden of demonstrating that probation "will subserve the ends of justice and the best interest of both the public and the defendant." State v. Dykes, 803 SW.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).
Defendant also argues that he should have been granted a sentence of split confinement with a requirement that he attend a drug and alcohol rehabilitation program as a condition of probation. Defendant argues that he no longer drives, and he has shown in the past that he can refrain from drinking for an extended period of time. Defendant was fifty-four years old at the time of the sentencing hearing. Defendant said in his pre-sentence report that he began drinking alcohol at the age of sixteen, and he started using marijuana at the age of twenty. Although he stopped using marijuana when he was thirty-five, Defendant said that he started using cocaine at forty-eight. Despite his numerous DUI convictions and lengthy history of alcohol and drugs, Defendant denies that he has a problem with alcohol or drugs. Defendant has only voluntarily participated minimally in an alcohol rehabilitative program in the past. All of these factors reflect negatively on Defendant's potential for rehabilitation.
The record supports the manner of service of the sentence imposed. Defendant failed to carry his burden to show that he was a suitable candidate for alternative sentencing, and the trial court thus did not err by imposing a sentence of confinement.
CONCLUSION
After a thorough review of the record, we affirm the judgment of the trial court.
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