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State v. Bailey11/29/2001
n. § 40-35-401(d). We begin our review with the fact that the Appellant is entitled to the statutory presumption of an alternative sentence in view of his convictions for Class D felonies as a range I offender. Tenn. Code Ann. § 40-35-102(6).
A. Denial of Total Probation
The Appellant, in effect, contends that the trial court erred by denying him total probation. As previously stated, the defendant has the burden of establishing his or her suitability for probation. State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)(overruled on other grounds). To meet that burden, the defendant must demonstrate that probation will "subserve the ends of justice and the best interest of both the public and the defendant." Id. Although not the only factor, the defendant's amenability to rehabilitation is an important consideration when determining his or her suitability for probation. See Bingham, 910 S.W.2d at 455; Tenn. Code Ann. § 40-35-103(5). The following criteria, while not controlling, shall also be accorded weight by the sentencing court when deciding the defendant's suitability for probation: (1)the nature and circumstances of the criminal conduct involved, Tenn. Code Ann. § 40-35-210(b)(4); (2) whether a sentence of full probation would unduly depreciate the seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and (3) whether a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes, Tenn. Code Ann. § 40-35-103(1)(B). Bingham, 910 S.W.2d at 456. Denial of probation may be based solely upon the circumstances of the offense when they are of such a nature as to outweigh all other factors favoring probation. Fletcher, 805 S.W.2d at 788-89.
Upon de novo review, we find the facts and circumstances of this case to be clearly aggravated. The record reveals a callous indifference by the Appellant for the safety of those traveling the highways of this state. Despite his three prior DUI convictions, the Appellant continued to drive intoxicated and, as a result, seriously injured two victims. Common sense dictates that tragic results are inevitable when a person chooses to drive a vehicle on a public street, at an excessive speed, without lights, at night, and with a blood alcohol content of .22 percent. The trial court also found that the Appellant was not subject to rehabilitation, "He chose to be a drunk in an automobile at least three times prior to this date, was arrested for it, served time for it." We agree with the trial court that total probation in this case would not "subserve the ends of justice" or be in "the best interest of both the public and the defendant." Accordingly, the trial court properly declined to grant the Appellant total probation.
B. Alternative Sentencing
In the alternative, the Appellant contends that he was at least entitled to the alternative sentence of community corrections or split-confinement. When imposing a sentence of total confinement, the trial court should base its decision on the considerations listed in Tennessee Code Annotated § 40-35-103(1):
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
In the present case, the trial court found that total confinement was necessary to provide an effective deterrence to othe
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