Opinion
No. 02C01-9812-CR-00372.
August 27, 1999.
Shelby County, Honorable Arthur T. Bennett, Judge.
AFFIRMED
For the Appellant:
A. C. Wharton, Public Defender, (AT TRIAL), Walker Gwinn, Assistant Public Defender, (ON APPEAL).
For the Appellee:
Paul G. Summers, Attorney General of Tennessee and J. Ross Dyer, Assistant Attorney General of Tennessee, William L. Gibbons, District Attorney General and Lee Coffee, Assistant District Attorney General.
OPINION
The defendant, Darren E. Matthews, appeals as of right from the Shelby County Criminal Court's denial of alternative sentencing for his conviction for violating the Habitual Motor Vehicle Offenders (HMVO) Act, a Class E felony. The defendant pled guilty pursuant to an agreement and received a sentence of one year as a Range I, standard offender in the Shelby County Correctional Center with the issue of alternative sentencing reserved for judicial determination. The defendant asserts on appeal that the trial court erred in denying him a community corrections sentence. We affirm the trial court.
The defendant was declared a habitual motor vehicle offender in June 1994. In August 1997, the defendant was stopped for speeding and arrested for violating the HMVO order prohibiting him from driving. At the sentencing hearing, the defendant testified that he had been driving to and from work at the time of his arrest. He stated, however, that he was no longer driving and was getting to work by riding with co-workers or taking the bus. He acknowledged five or six previous convictions for driving while his license was suspended or revoked. He promised to abide by the court order in the future. He also said he was paying child support for his two daughters.
The trial court denied alternative sentencing, stating that the defendant's continued driving in defiance of the order indicated that the previous cases did not get the defendant's attention. It also found that the defendant's demeanor while testifying indicated that the defendant was not taking the matter seriously.
The defendant contends that he should be placed in the community corrections program in order to keep his employment and to continue timely child support payments. He also asserts that the program is his best opportunity for rehabilitation and his "best chance" either to obtain a driver's license or to adapt to earning a livelihood without driving. He argues that confinement is not the least severe measure to achieve the purpose for which the sentence was imposed. See Tenn. Code Ann. § 40-35-103(4).
As a Range I, standard, Class E felon, the defendant is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6). However, the record reflects that the defendant continually disregarded both the driver's licensing laws and the ultimate court order barring him from driving. Also, the trial court found that the defendant showed a poor attitude at the sentencing hearing. Obviously, one of the main purposes of confinement is for the defendant to appreciate the seriousness of his repeated violation of the driving law. In this respect, the record supports a conclusion that the statutory presumption has been overcome. The judgment of conviction is affirmed.
____________________________ Joseph M. Tipton, Judge
CONCUR:
____________________________ James Curwood Witt, Jr., Judge
____________________________ John Everett Williams, Judge