                                                                                      02/06/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs December 13, 2016

            STATE OF TENNESSEE v. RICHARD W. WILBURN

              Appeal from the Circuit Court for Rutherford County
      Nos. F-74351, M-73937, M-73940 & M-73973      David M. Bragg, Judge


                            No. M2016-00704-CCA-R3-CD


The Defendant, Richard W. Wilburn, was sentenced to an effective ten-year sentence for
his guilty-pleaded convictions to one count of initiating the methamphetamine
manufacturing process and three counts of driving on a revoked license, second offense
or more. On appeal, the Defendant contends that the trial court erred by applying
enhancement factor 10—the Defendant had no hesitation about committing a crime when
the risk to human life was high—to increase his sentence for initiating the manufacturing
methamphetamine process because, he asserts, there was no proof that anyone was
endangered by his actions. He also submits that the trial court erred by denying any form
of alternative sentencing based upon his need for drug treatment. Following our review,
we find no abuse of discretion in the trial court’s sentencing decision. Accordingly, the
judgments are affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Gerald L. Melton, District Public Defender, and Russell N. Perkins, Assistant District
Public Defender, for the appellant, Richard W. Wilburn.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and Dana S. Minor,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                   OPINION
                             FACTUAL BACKGROUND

       In July 2015, the Rutherford County Grand Jury charged the Defendant with
driving on a revoked license, second offense or more (case number M-73937); driving on
a revoked license, second offense or more, and violation of the open container law (case
number M-73940); and driving on a revoked license, second offense or more (case
number M-73973). See Tenn. Code Ann. §§ 55-10-416, -50-504. In September of the
same year, the Defendant was indicted for initiating a process intended to result in the
manufacture of methamphetamine (case number F-74351). See Tenn. Code Ann. § 39-
17-435. The Defendant thereafter entered a guilty plea disposing of all four cases—
pleading guilty to three counts of driving on a revoked license, second offense or more,
and to initiating the methamphetamine manufacturing process, and the open container
charge was dismissed. Pursuant to the terms of the plea agreement, the Defendant was
classified as a Range I, standard offender, although he qualified for a higher range
classification, and his four sentences were to run concurrently. The length of the
sentences and the manner of service was left to the trial court’s discretion.

       At the subsequent sentencing hearing, Detective Curtis Brinkley, with the
Narcotics Unit of the Rutherford County Sheriff’s Department, testified that he
investigated a methamphetamine complaint on March 26, 2015. Det. Brinkley had been
advised by a “State Park Ranger Supervisor” that “multiple items consistent with a
methamphetamine lab[oratory]” had been found “disposed of across a fence line” that
was “kind of parallel” with the Defendant’s property. When Det. Brinkley arrived at the
home, he found “components consistent with methamphetamine production” in the
Defendant’s yard—a gas generator, which “consist[s] of a plastic bottle with some tubing
coming out the top of it”; “a bag on a front porch that had multiple gas generators and
some syringes, [and] a glass jar” inside; and ammonium nitrate. Following the issuance
of a search warrant, more items were discovered inside the home confirming the presence
of a methamphetamine laboratory—sulfuric acids, including drain cleaner; “a glass plate
with coffee filters that contained white residue,” field-testing positive for
methamphetamine; salt; plastic bags; “some miscellaneous tools that could be associated
with fixing or administering the products together”; and pseudoephedrine.

       According to Det. Brinkley, they found a total of five gas generators outside of the
Defendant’s home between the one in the yard and the others on the front porch. He
explained that “[t]he gas generators are what are needed to actually finish the cooking
process, to actually crystalize the meth.” Det. Brinkley further described the cooking
process as “dangerous” because it frequently caused explosions. Det. Brinkley was then
asked if children were in the area when he arrived. He replied,

               Once we were conducting our investigation, the trailer that kind of
       sits within a few feet away—I say a few feet. You know, 20, 30, maybe 50.
       There were children there. And they had, obviously, kid toys outside. And
       we were speaking to them. The children were present at that time. They

                                            -2-
      weren’t outside when we first arrived. But there were children present
      within the property.

Det. Brinkley said that the gas generators, especially the one found in the Defendant’s
yard, were in “dangerous proximity” to the children.

      Additionally, the Defendant was renting the home. According to Det. Brinkley,
the homeowners decided to leave the home under quarantine because the clean-up
process was too cost prohibitive for them, so the residence was uninhabitable.

        The Defendant then testified on his own behalf. The Defendant claimed that he
did not know how to manufacture methamphetamine, being “more of a junky than a
maker.” The Defendant said that he had been a cocaine user for approximately eight
years when his neighbor, Billy Teal, introduced him to methamphetamine. He further
testified that he smoked marijuana and began drinking at fourteen or fifteen years of age.
According to the Defendant, his addiction problems likely started “at birth” because his
father gave him beer “in a bottle to make [him] go to sleep.”

       The Defendant claimed that it was Mr. Teal who manufactured the
methamphetamine at the Defendant’s home because it was “central[ly] located” and away
from Mr. Teal’s children. According to the Defendant, Mr. Teal’s residence was about
one hundred feet away from his. Because they were using his home, the Defendant
“started keeping the stuff to make [methamphetamine] at [his] house.” “[E]verything
was okay for a while[,]” the Defendant said, “until one day [Mr. Teal] had [the
Defendant] get the stuff, and [the Defendant] put it in [his] barn.” According to the
Defendant, it was the very “next day” that the police showed up and “took [his] house
and everything in it[.]” When asked if he ever participated in the manufacturing process,
the Defendant answered affirmatively, stating that he had “held the coffee filter.” The
Defendant asserted that he never sold any of the methamphetamine and that he used
ninety percent of it, with Mr. Teal taking the rest. The Defendant explained, “It wasn’t
about making money. It was about getting high.”

      The Defendant claimed that, if he was granted some sort of alternative release, he
would “try [his] best . . . to stay away from any drug.” According to the Defendant, he
had applied for placement in the drug court program, which request had been denied, and
he had “written to halfway houses and a substance abuse center[,]” with no responses.
He stated that he had previously participated in “a weekend” of drug treatment at
Cumberland Heights, however, that was all of the help he had ever received.

       The Defendant acknowledged that he had a lengthy criminal record, including a
history of driving offenses. However, he claimed that, because he was a self-employed
carpenter, he had no choice but to drive himself around for work. According to the
                                         -3-
Defendant, he could return to work “with the builders that [he had] worked for” if not
incarcerated. The Defendant asserted that he was not a drug dealer and explained that
most of his other criminal offenses involved his drug habit, either drug crimes or theft
offenses where he was stealing things to buy drugs.

       The Defendant claimed that he wanted help for his drug problem and asserted that
he would “try [his] best” to follow the rules of supervised release. He noted that he had
become a “pod trustee” while in jail over the past eight months, “clean[ing] up after
people and distribut[ing] their clothes, feed[ing] them[,]” and “[m]aintain[ing] the
block[.]” When asked why he had not sought drug treatment before, the Defendant
responded, “[B]ecause I kind of sort of didn’t grow up.” According to the Defendant, he
could live with his mother if placed on probation.

       On cross-examination, the Defendant admitted that he assisted Mr. Teal with
manufacturing methamphetamine. He claimed that they used his house rather than Mr.
Teal’s because the Defendant’s house was “vacant” while Mr. Teal’s wife and kids were
always at home. The Defendant said that he did not know the manufacturing process was
dangerous and that they only used his house “to keep it away from the kids, period.”
When asked why they “left some of this lying around the front porch and the backyard[,]”
he said that he “wasn’t paying attention to what [he] was doing” because he was “sort of
messed up.”

        The Defendant admitted that he had “been in and out” of the criminal justice
system his entire life. The Defendant acknowledged that he had “violated probation quite
a few times” in the past, explaining that his failure to comply was “[d]ue to [his] drug
habit[.]” Regarding his continuing to drive for work although his license had been
revoked, the Defendant said, contrary to his earlier testimony, that he was going to “give
up carpentry” and find a job close to where he lived. The Defendant confessed that he
had six driving on a revoked license charges at the time he pled guilty to these three.
Despite his “repeated inability to be successful on probation,” the Defendant claimed he
could comply with “law and order” now. However, he acquiesced that he was “a bad
candidate” for probation.

        Following the conclusion of proof, the trial court considered the enhancement
factors set forth in Tennessee Code Annotated section 40-35-114. Noting that the
Defendant, given his “extensive prior criminal history[,]” qualified for a higher
classification range than bargained-for under the plea agreement, the trial court applied
factor (1) that the Defendant had a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range. See Tenn.
Code Ann. § 40-35-114(1). The court found that factor (10)—the Defendant had no
hesitation about committing a crime when the risk to human life—applied “to cooking

                                           -4-
and manufacturing methamphetamine” and commented on the risk to Mr. Teal “or
anybody else that may have been there at the time it was being cooked or processed.”
See Tenn. Code Ann. § 40-35-114(10). The court did not find any mitigating factors to
be applicable. See Tenn. Code Ann. § 40-35-113. The trial court then sentenced the
Defendant to ten years for the inititaion of a process intended to result in the manufacture
of methamphetamine and eleven months and twenty-nine days for each driving on a
revoked license conviction.

       The trial court also denied any alternative sentence, first noting the Defendant’s
prior criminal history, which involved “somewhere between [forty] and [fifty] prior
convictions” spanning nearly thirty years. The trial court then commented that, based
upon the Defendant’s own testimony, he was not a suitable candidate for release into the
community. Discussing the Defendant’s drug problem, the trial court observed,

               I can only say that I wish that in past days when faced with these
       types of problems, he had sought out and used some of his funds to get
       some help to correct his behavior and find a way to deal with his addiction
       issues, as opposed to . . . not only continuing to use, but when somebody
       says if you ever try this stuff, you’ll throw rock at cocaine, he jumped right
       into meth. And meth will kill you. I mean, if it doesn’t blow up, it’s going
       to kill you anyway.

Based upon the Defendant’s prior number of probation violations, the trial court felt he
had a low potential for rehabilitation. The trial court also said that there was no reason to
believe that the Defendant would abide by the terms of probation in light of his equivocal
statement that he would “give it his best effort to try.” The trial court was also concerned
that society be protected from future criminal conduct by the Defendant, that measures
less restrictive than confinement had frequently been applied to the Defendant
unsuccessfully, that probation might depreciate the seriousness of the offense, and that
incarceration might be an effective deterrent to others. See Tenn. Code Ann. § 40-35-
103(1). Making one last remark about the Defendant’s need for drug treatment, the trial
court stated,

              [Defendant], I hope while you are incarcerated—if you are
       incarcerated in a facility that provides some either drug court—which
       currently the Department of Corrections, I think, only offers in one facility
       in the State—or any addiction treatment or even just A.A. or N.A.
       meetings, I hope you’ll take advantage of those and begin to talk to people,
       find a way to deal with the issues you find yourself dealing with other than
       by continuing the use of substances that will result in your death at an
       untimely time.

                                            -5-
              You have a family. Your mom is here. There are people that love
       you that want you to live. But that’s a decision that you have to make.

      It is from this sentencing decision that the Defendant timely appeals. The case is
now before us for our review.

                                        ANALYSIS

       On appeal, the Defendant takes exception to the trial court’s enhancement of his
methamphetamine manufacturing sentence to ten years and its complete denial of any
alternative sentence. We address each in turn.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it
must consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to sentencing
alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
evidence and information offered by the parties on the enhancement and mitigating
factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to
Tennessee sentencing practices for similar offenses; and (g) any statement the defendant
wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-
35-210(b). When an accused challenges the length and manner of service of a sentence,
this court reviews the trial court’s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). This standard of review also applies to “the questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012).

        This court will uphold the trial court’s sentencing decision “so long as it is within
the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-
10. Those purposes and principles include “the imposition of a sentence justly deserved
in relation to the seriousness of the offense,” Tennessee Code Annotated section 40-35-
102(1), a punishment sufficient “to prevent crime and promote respect for the law,”
Tennessee Code Annotated section 40-35-102(3), and consideration of a defendant’s
“potential or lack of potential for . . . rehabilitation,” Tennessee Code Annotated section
40-35-103(5). State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2007). Ultimately, in
sentencing a defendant, a trial court should impose a sentence that is “no greater than that
deserved for the offense committed” and is “the least severe measure necessary to
achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-
103(2), (4).

                                            -6-
       Moreover, appellate courts may not disturb the sentence even if we had preferred a
different result. See Carter, 254 S.W.3d at 346. The burden of showing that a sentence is
improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

                                      I. Length of Sentence

        The Defendant argues that his ten-year sentence for initiation of a process intended
to result in the manufacture of methamphetamine is excessive because the trial court
improperly applied enhancement factor (10)—the Defendant had no hesitation about
committing a crime when the risk to human life was high—to increase sentence, and
therefore, according to the Defendant, he should have received the minimum sentence of
eight years. The State responds that the trial court properly utilized enhancement factor
(10) to increase the Defendant’s sentence because his actions posed a high risk to human
life, but even if factor (10) was misapplied, the trial court also relied on the Defendant’s
criminal record, which he does not dispute, and the sentence length is justified.

       Our amended Sentencing Act no longer imposes a presumptive sentence. Carter,
254 S.W.3d at 343. Instead, Tennessee Code Annotated section 40-35-210 was amended
to provide as follows:

              (c) The court shall impose a sentence within the range of
       punishment, determined by whether the defendant is a mitigated, standard,
       persistent, career, or repeat violent offender. In imposing a specific
       sentence within the range of punishment, the court shall consider, but is not
       bound by, the following advisory sentencing guidelines:
              (1) The minimum sentence within the range of punishment is the
       sentence that should be imposed, because the general assembly set the
       minimum length of sentence for each felony class to reflect the relative
       seriousness of each criminal offense in the felony classifications; and
              (2) The sentence length within the range should be adjusted, as
       appropriate, by the presence or absence of mitigating and enhancement
       factors set out in §§ 40-35-113 and 40-35-114.
              (d) The sentence length within the range should be consistent with
       the purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d).

       “[T]he 2005 amendments rendered advisory the manner in which the trial court
selects a sentence within the appropriate range, allowing the trial court to be guided by—
but not bound by—any applicable enhancement or mitigating factors when adjusting the
                                            -7-
length of a sentence.” Bise, 380 S.W.3d at 706. In accordance with the broad discretion
now afforded a trial court’s sentencing decision,

       misapplication of an enhancement or mitigating factor does not invalidate
       the sentence imposed unless the trial court wholly departed from the 1989
       Act, as amended in 2005. So long as there are other reasons consistent with
       the purposes and principles of sentencing, as provided by statute, a sentence
       imposed by the trial court within the appropriate range should be upheld.

Id.

       As a Range I, standard offender convicted of a Class B felony, the Defendant’s
sentencing range was between eight to twelve years. See Tenn. Code Ann. 40-35-
112(a)(2). Here, the trial court specifically mentioned the criteria in section 40-35-210(b)
before rendering its sentencing decision. The court also stated that it was considering the
Defendant’s “potential for rehabilitation or treatment” in determining the sentence length.
See Tenn. Code Ann. § 40-35-103(5).

       Regarding enhancement factor (10), the trial court determined that factor (10)
applied “to cooking and manufacturing methamphetamine” and commented on the risk to
Mr. Teal “or anybody else that may have been there at the time it was being cooked or
processed.” The Defendant submits that there was “no proof offered that anyone was
endangered by any activity of [the Defendant].” This court has held that a trial court is
not warranted in using enhancement factor (10) to enhance a sentence involving a
Schedule II controlled substance1 due to the “nature and circumstances” of the substance,
reasoning that “the legislature has already considered the inherent nature of the various
drugs in its setting of punishment.” State v. Keel, 882 S.W.2d 410, 421-22 (Tenn. Crim.
App. 1994) (citations omitted). However, the court specifically stated that possible
factual scenarios existed that would warrant a trial court applying this factor in a
Schedule II controlled substance case. Id. at 421.

       For example, this court has upheld the application of factor (10) to a defendant
who was manufacturing methamphetamine “in a motel room with lighter fluid and other
explosive materials and . . . there could have been a fire or explosion[.]” State v. Ronald
Lee West, Jr., No. E2013-00830-CCA-R3-CD, 2014 WL 1920676, at *9-10 (Tenn. Crim.
App. May 13, 2014). Likewise, the record supported application of factor (10) in a case
where a defendant led several officers on a fifty-seven-minute chase in a car that

1
  Methamphetamine is classified as a Schedule II controlled substance. See Tenn. Code Ann. § 39-17-
408(d)(2).

                                               -8-
“contained a ‘rolling meth lab.’” State v. Michael Vaughn, No. M2006-01341-CCA-R3-
CD, 2007 WL 2350099, at *1-3, 5 (Tenn. Crim. App. Aug. 14, 2007). Here, Det.
Brinkley testified that Mr. Teal’s trailer was “20, 30, maybe 50” feet from the
Defendant’s residence and that children’s toys were present in the shared yard. When
Det. Brinkley arrived on the scene, the children were not outside at first; however, he said
that “there were children present within the property” and that he spoke with them. Of
great significance, Det. Brinkley said that the gas generators, especially the one found in
the yard, were in “dangerous proximity” to the children. Based upon this proof, we
cannot conclude that the trial court erred by applying factor (10) to the Defendant’s
sentence.

        Regardless of the applicability of factor (10), it is well-settled, as stated above,
that, even if the trial court misapplies an enhancement factor, the sentence will be upheld
as long as “there are other reasons consistent with the purposes and principles of
sentencing” supporting the trial court’s determination. Bise, 380 S.W.3d at 706. The
Defendant does not dispute his extensive criminal history spanning over thirty years and
the trial court’s application of factor (1). The Defendant qualified for a higher
classification range than bargained-for under the plea agreement, and the Defendant’s
prior criminal history, as noted by the trial court, involved “somewhere between [forty]
and [fifty] prior convictions[.]” The Defendant admitted at the sentencing hearing that he
had a lengthy record, including a history of driving offenses, drug crimes, and theft
offenses. In light of the Defendant’s criminal history, factor (1) is more than sufficient to
justify the trial court’s imposition of a ten-year sentence.

       After considering the applicable law and the record, we conclude that the trial
court’s imposition of a ten-year sentence is presumptively reasonable and that the
Defendant has failed to rebut that presumption. Thus, the record evidencing no abuse of
discretion, the Defendant’s within-range sentence of ten years is affirmed.

                                 II. Alternative Sentencing

       A defendant who is an especially mitigated or standard offender convicted of a
Class C, D, or E felony should be considered a favorable candidate for alternative
sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6)(A).
However, no longer is any defendant entitled to a presumption that he or she is a
favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347. Tennessee
Code Annotated section 40-35-102(6) is now only advisory. See Tenn. Code Ann. § 40-
35-102(6)(D). A trial court should consider the following when determining any
defendant’s suitability for alternative sentencing:


                                            -9-
              (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[.]

Tenn. Code Ann. § 40-35-103(1).

       Regardless, an offender is eligible for probation if he or she is sentenced to ten
years or less and has not been convicted of certain specified offenses. See Tenn. Code
Ann. § 40-35-303(a). While the trial court was required to automatically consider
probation as a sentencing option, see Tennessee Code Annotated section 40-35-303(b),
no criminal defendant is automatically entitled to probation as a matter of law, see State
v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). It is the defendant’s burden to establish his
or her suitability for full probation. See Carter, 254 S.W.3d at 347 (citing Tenn. Code
Ann. § 40-35-303(b)). The defendant must demonstrate that probation will “subserve the
ends of justice and the best interests of both the public and the defendant.” Hooper v.
State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v. Hooper, 29
S.W.3d 1, 9-10 (Tenn. 2000). Among the factors applicable to probation consideration
are the circumstances of the offense; the defendant’s criminal record, social history, and
present condition; the deterrent effect upon the defendant; and the best interests of the
defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

       Again, the consideration of favorable candidacy for alternative sentencing extends
to a defendant “who is an especially mitigated or standard offender convicted of a Class
C, D, or E felony[.]” Tenn. Code Ann. § 40-35-102(6)(A). When a defendant is to be
considered a favorable candidate, the State can overcome such consideration with
“evidence to the contrary.” Id. Because the Defendant was convicted of a Class B
felony, he is not to be considered a favorable candidate for alternative sentencing.
Moreover, as noted above, no longer is any defendant entitled to a presumption that he or
she is a favorable candidate for alternative sentencing, and it is a defendant’s burden to
establish his or her suitability for full probation. See Carter, 254 S.W.3d at 347 (citation
omitted). Importantly, we observe that the State had no burden to justify confinement in
this case.

       Here, the trial court based its denial of any alternative sentence on the Defendant’s
prior criminal history, the Defendant’s prior number of probation violations, and the
Defendant’s own testimony. The trial court found that the Defendant had a low potential
for rehabilitation. The trial court was also concerned that society be protected from
                                           -10-
future criminal conduct by the Defendant, that measures less restrictive than confinement
had frequently been applied to the Defendant unsuccessfully, that probation might
depreciate the seriousness of the offense, and that incarceration might be an effective
deterrent to others. See Tenn. Code Ann. § 40-35-103(1).

       The presentence report reflects multiple failed attempts at sentences of release into
the community. The Defendant has repeatedly been granted the largess of an alternative
sentence throughout his criminal career. The Defendant acknowledged that he had “been
in and out” of the criminal justice system his entire life and that he had “violated
probation quite a few times” in the past. As the trial court noted, the Defendant
equivocated as to whether he would be able to abide by the rules this time, saying only
that he would “try [his] best.” The Defendant’s criminal history is significant and
supports the denial of an alternative sentence. The trial court followed the statutory
sentencing procedure, properly weighing the factors and principles in denying alternative
sentencing, and placing its reasoning for denying an alternative sentence on the record.

       The Defendant also argues that the trial court should have sentenced him under the
“special needs” provision of the Community Corrections Act, possibly following a
sentence of split confinement, because he needs drug treatment. See Tenn. Code Ann. §
40-36-106(c). The “special needs” provision provides that “[f]elony offenders not
otherwise eligible under subsection (a), and who would be usually considered unfit for
probation due to histories of chronic alcohol, drug abuse, or mental health problems, but
whose special needs are treatable and could be served best in the community rather than
in a correctional institution,” may be considered eligible for punishment in the
community under the provisions of this chapter. Id., see also State v. Boston, 938 S.W.2d
435, 437 (Tenn. Crim. App. 1996).

        Initally, the State asserts that any argument for sentencing under this provision is
waived because the Defendant raises this suggestion for the first time on appeal. Here,
the trial court did not explicitly consider the eligibility requirements for a sentence to the
Community Corrections Program, likely in large part due to the parties’ arguments at the
sentencing hearing. However, the Defendant did argue for an alternative sentence
generally, and the trial court did address the statutory considerations governing
alternative sentencing in rendering its decision. We decline to find waiver of the issue.
Additionally, the trial court’s having determined that the Defendant was unsuitable for
alternative sentencing generally, we discern no error in the failure to inquire further as to
the Defendant’s eligibility for community corrections specifically. In so concluding, we
again remark that the Defendant, as a Class B felon, was not to be considered a favorable
candidate for alternative sentencing from the outset. See Tenn. Code Ann. § 40-35-
102(6)(A).

                                            -11-
       Turning to the issue at hand, in order to be eligible for community corrections
sentencing under subsection (c), a defendant must be ineligible for punishment in the
community under subsection (a). Arguably, the Defendant’s convictions for assault
(three misdemeanors), resisting or evading arrest (four misdemeanors and one felony),
and disorderly conduct (one misdemeanor) demonstrate a present or past pattern of
behavior indicating violence and demonstrate a pattern of committing violent offenses.
See State v. Michael E. Bunting, No. E2005-00321-CCA-R3-CD, 2006 WL 1994573, at
*6 (Tenn. Crim. App. July 18, 2006) (citations omitted). Accordingly, he would be
ineligible for community corrections under section (a). See Tenn. Code Ann. § 40-36-
106(a)(1)(E)(F). Also, in order to be eligible for community corrections sentencing under
subsection (c), the offender must be eligible for probation. Boston, 938 S.W.2d at 438.
We have already concluded that the Defendant is statutorily eligible for probation.

        Next, a determination that a defendant is suitable for placement in the program
also requires the following findings: (1) the offender has a history of chronic alcohol,
drug abuse, or mental health problems; (2) these factors were reasonably related to and
contributed to the offender’s criminal conduct; (3) the identifiable special need (or needs)
are treatable; and (4) the treatment of the special need could be served best in the
community rather than in a correctional institution. Boston, 938 S.W.2d at 439. In the
present case, though the trial court did not specifically address community corrections or
the special needs provision, the trial court fully considered and discussed the Defendant’s
drug problem and corresponding need for treatment. The trial court denied any
alternative sentence despite the Defendant’s drug problem because of the Defendant’s
extensive criminal history and mulitple probation violations. The trial court commented
that, although the Defendant had stated a desire for help with his drug problem, he had
not put forth any meaningful effort to seek treatment in the past. The trial court did not
err by concluding that the Defendant’s drug issues would best be treated in a correctional
facility rather than in the community. Accordingly, the Defendant has failed to establish
an abuse of discretion or otherwise overcome the presumption of reasonableness afforded
to the trial court’s denial of alternative sentencing.

                                     CONCLUSION

       Based upon the foregoing, the judgments of the trial court are affirmed.



                                                  ______________________________
                                                  D. KELLY THOMAS, JR., JUDGE


                                           -12-
