        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 24, 2009

           STATE OF TENNESSEE v. JONATHAN JASPER SMITH

                  Appeal from the Circuit Court for Sullivan County
                  Nos. S54,953 and S56,244 R. Jerry Beck, Judge




                  No. E2009-01235-CCA-R3-CD - Filed May 12, 2010




The Defendant, Jonathan Jasper Smith, entered guilty pleas in the Sullivan County Circuit
Court to one count of attempting to obtain narcotics by fraud, a Class D felony, and one
count of possession of drug paraphernalia, a Class A misdemeanor. Pursuant to the plea
agreement, the Defendant received concurrent sentences of two years as a Range I, standard
offender, and eleven months twenty-nine days, respectively. In a separate case, the
Defendant pled guilty to violation of a habitual traffic offender order, a Class E felony;
speeding, a Class C misdemeanor; and failure to show proof of financial responsibility, a
Class C misdemeanor. He received an effective sentence of two years for these offenses to
be served consecutively to the drug-related cases. The manner of service was left to the trial
court’s determination. Following an alternative sentencing hearing, the trial court denied
probation and all other forms of alternative sentencing. In this appeal as of right, the
Defendant contends that the trial court erred in denying him alternative sentencing.
Following our review, we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Stephen M. Wallace, District Public Defender; and Andrew J. Gibbons, Assistant Public
Defender, attorneys for appellant, Jonathan Jasper Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and Janine Mynatt,
Assistant District Attorney General, attorneys for appellee, State of Tennessee.

                                         OPINION

        The record reflects that on November 24, 2008, the Defendant pled guilty in case
number S54,953 to attempting to obtain narcotics by fraud and possession of drug
paraphernalia. Pursuant to the plea agreement, he received an effective sentence of two
years. The trial court reserved ruling on the Defendant’s request for alternative sentencing
pending the completion of the presentence investigation report. On January 17, 2009, the
Defendant was arrested for various driving offenses. On May 28, 2009, he pled guilty in case
number S56,244 to driving in violation of a habitual traffic offender order, speeding, and
failure to show proof of financial responsibility. Pursuant to the plea agreement in this case,
the Defendant received an effective sentence of two years to be served consecutively to the
sentence in case number S54,953 – resulting in a total effective sentence of four years.

        At the May 28, 2009 alternative sentencing hearing, the Defendant testified that he
was employed and lived with his girlfriend of fifteen years and their two children, ages ten
and two. He acknowledged his lengthy criminal record but stated that the majority of his
offenses stemmed from his alcohol and drug abuse. He testified that he began drinking at
the age of fourteen and that his alcoholism grew so severe that he developed pancreatitis
before reaching thirty years of age. The Defendant also admitted that he had abused cocaine
and prescription pills in the past. He asked the trial court to order substance abuse treatment
as part of his sentencing decision. He also acknowledged that he had previously attended
drug treatment as a condition of probation but had “always violated for something before [he]
got to complete it.”

       The Defendant’s mother, Susan Mitchell Smith, testified that she had “seen him turn
around” since he spent some time in jail for these offenses. She stated that she had forced
him to treatment in the past but now she knows that he wants to overcome his addiction. The
Defendant’s long-time girlfriend, Robin Renee Lawson, testified that since the Defendant’s
release from jail three months prior to the hearing, she had seen a change in the Defendant.
She stated that she had not seen him intoxicated and that he had shown a desire to get
treatment to overcome his addiction.

         The trial court noted that the Defendant had “been in some type of trouble from the
time he was about 19 years old, even before that.” The trial court acknowledged that the
Defendant was working and had obtained his graduate equivalency diploma but still stated
that it had “no confidence if I let him go that he would not go out and commit a new crime.”
The trial court also noted with concern that the Defendant committed the new offenses while
on bond from the drug-related offenses. In denying the Defendant’s request for alternative

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sentencing the trial court stated:

       I’m sure he is dope addicted or drug addicted. He says he – early on he was
       sent to various counseling [facilities] even as a juvenile, I believe, and he’d get
       revoked before he completed the program.
               I’ve considered residential community corrections. . . .
               His report is basically negative. Probation after probation; offense after
       offense since he was a teenager. Even while one of these cases [was] pending
       he’s out committing a new felony.
               The Court’s of the opinion that he would most likely continue what he
       has been doing, and that is commit new crimes. Almost totally negative report.
       ...
       He’ll be required to serve his sentence.
       ....
       Probation [and] all other forms of alternative sentencing [are] denied.

                                         ANALYSIS

      On appeal, the Defendant argues that the record fails to show that the trial court
considered all relevant sentencing principles in its denial of alternative sentencing.

        An appellate court's review of sentencing is de novo on the record with a presumption
that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2003). As
the Sentencing Commission Comments to this section note, on appeal the burden is on the
defendant to show that the sentence is improper. 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, the court 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). However, “the presumption of correctness which accompanies the trial court's
action 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). In this respect, for the purpose of meaningful
appellate review:

       [T]he trial court must place on the record its reasons for arriving at the final
       sentencing decision, identify the mitigating and enhancement factors found,
       state the specific facts supporting each enhancement factor found, and
       articulate how the mitigating and enhancement factors have been evaluated
       and balanced in determining the sentence. Tenn. Code Ann. § 40-35-210(f)

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       (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

       In conducting its de novo review, the appellate court must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors,
(6) any statement that the defendant made on his own behalf, and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210 (2006); see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn.1986).

       The Defendant was convicted of a Class D felony (and lesser classes of offenses).
Therefore, he was to be “considered as a favorable candidate for alternative sentencing
options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (2006).
However, this consideration does not automatically entitle a defendant to alternative
sentencing; rather, sentencing issues must be determined by the facts and circumstances
presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987)
(citing Moss, 727 S.W.2d at 235). The defendant must establish his suitability for alternative
sentencing. Tenn. Code Ann. § 40-35-303(b). In determining a defendant’s suitability for
alternative sentencing, the trial court should consider whether (1) confinement is needed to
protect society by restraining a defendant who has a long history of criminal conduct, (2)
confinement is needed to avoid depreciating the seriousness of the offense or confinement
is particularly suited to provide an effective deterrence to people likely to commit similar
offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing Tenn. Code Ann.
§ 40-35-103(1)(A)-(C)). A trial court should also consider a defendant's potential or lack of
potential for rehabilitation when determining if an alternative sentence would be appropriate.
Tenn. Code. Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App.
1996).


        Relative to its denial of alternative sentencing, the trial court expressed significant
concern over the Defendant’s long history of convictions and failed attempts at probation and
substance abuse treatment. The presentence report documents twenty-eight convictions for
alcohol or drug-related offenses and property offenses occurring during the twelve years of
the Defendant’s adulthood. The Defendant’s history also contains two juvenile adjudications
for alcohol and marijuana-related offenses. Also apparent from his adult criminal history are
at least two past failed attempts at probation. The trial court noted the Defendant’s favorable


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work history and his completion of his GED. However, the trial court’s comments clearly
indicate a concern with the Defendant’s potential for rehabilitation and likelihood to re-
offend in light of his past failed attempts at probation and substance abuse treatment. These
concerns are supported by the record. We conclude that the trial court gave appropriate
consideration to the sentencing factors in arriving at its determination. Accordingly, we
conclude that the trial court properly denied alternative sentencing in this case.


                                      CONCLUSION


       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.



                                           D. KELLY THOMAS, JR., JUDGE




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