        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 21, 2016

             STATE OF TENNESSEE v. CHARLES L. HARTLEY

                Appeal from the Criminal Court for Sullivan County
                        No. S63043   R. Jerry Beck, Judge


                 No. E2015-01493-CCA-R3-CD – Filed April 20, 2016
                        _____________________________

Pursuant to a plea agreement, the Defendant, Charles L. Hartley, pleaded guilty to nine
drug-related offenses for a total effective sentence of eight years with the trial court to
determine the manner of service of the sentence. After a hearing, the trial court ordered
that the Defendant serve one year in confinement and the remaining seven years on
probation. On appeal, the Defendant contends the trial court erred when it denied him an
alternative sentence. After a thorough review of the record and relevant authorities, we
affirm the trial court‟s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Jonathan E. Roberts, Bristol, Tennessee, for the appellant, Charles L. Hartley.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Barry Staubus, District Attorney General; and Josh D. Parsons,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

       A Sullivan County Grand Jury indicted the Defendant for one count of initiation of
a process intended to result in the manufacture of methamphetamine, one count of
conspiracy to manufacture .5 gram or more of a substance containing methamphetamine,
one count of aggravated burglary, three counts of possession of drug paraphernalia, one
count of possession of marijuana, and two counts of possession of methamphetamine.
       Pursuant to a plea agreement, the Defendant pleaded guilty to all the indicted
counts in exchange for a total effective sentence of eight years, with the trial court to
determine the manner of service. At the guilty plea hearing, the parties stipulated to the
following factual basis for the trial court‟s acceptance of the guilty plea:

             On November the 22nd, 2013, Donald and Billie Littrell returned to
      their home [ ] in Bluff City, a location in Sullivan county, Tennessee. They
      had been gone on vacation for approximately a week, and when they
      returned home they observed vehicles parked in their driveway. Law
      enforcement was called, and there at the home three subjects were located
      on the front porch. [The Defendant], Melissa Timbs, and Wesley Odell.
      Recovered from inside the home, with the assistance of a K9 officer, were
      David Jones and Erica Moore. All five of these individuals are charged
      equally in this case under the accomplice theory of liability, and have all
      been charged in all counts, with a couple of – of exceptions.

             A search was ultimately done of this particular residence, and during
      the course of the search of this residence in multiple rooms in the house
      were found coffee -- coffee filters; empty pseudoephedrine blister packs;
      drain cleaner; cut lithium batteries and ammonium nitrate; digital scales;
      used pipes; a baggie containing a white powder; a small baggie that was
      believed by the officers at the time to be marijuana; two cook bottles; 13
      gasser bottles; other empty blister packs; and a receipt from a scrap metal
      location for -- for [the Defendant]; and mail in the name of [the Defendant]
      found in the basement area. On the back deck of the home there were
      found two used cook bottles.

            A search – a consent search of [the Defendant‟s] vehicle also
      recovered wet coffee filters, used syringes, two spoons, and a receipt from
      Food City for Morton salt which the State would submit is necessary in
      some cases for the manufacture of methamphetamine.

            While [the Defendant] initially told law enforcement that he had
      purchased pseudoephedrine in the past for people he assumed were going to
      cook methamphetamine, [the Defendant] on that day denied having any
      knowledge that a cook was going on, only that there was a
      methamphetamine cook going on at the scene when he got there. However,
      recovered from [the Defendant‟s] person was a substance that was sent to
      the TBI and tested positive to be methamphetamine.

             ....
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       [A]ll the substances that were recovered from [the Defendant] and from the
       home that were believed to be methamphetamine, did indeed test positive
       for methamphetamine according to the TBI lab, and the substance believed
       to be marijuana also . . . tested positive . . . to be marijuana.

       The trial court held a sentencing hearing on July 7, 2015, to determine the manner
of service of the Defendant‟s eight-year sentence. The trial court reviewed the pre-
sentence report, noting that the Defendant had a minor criminal record, had graduated
from high school, and was currently employed. The trial court read the Defendant‟s
statement to Sullivan County Sheriff, dated November 23, 2013, as follows:

             Wes Odell called me earlier today for a ride but I wasn‟t in the area.
       Wes Odell then called me and my girlfriend, Melissa Timbs, to come over
       and hang out at his house.

              When we arrived, Wes Odell and David Jones were already cooking
       meth. When I saw them cooking meth, I went to leave but the cops had
       already there [sic].

             I use meth socially and used some earlier today. I have purchased
       pseudoephedrine . . . for people in the past that I assume was to be used to
       cook meth. I purchase about two pseudo boxes per month.

The trial court also read a portion of the victim‟s statement, stating, “The fact that my
wife‟s grandson would break into our house and, with four others set up a meth lab has
upset our entire family. Trust does not exist in it now.”

        The trial court noted that the victim‟s statement also detailed the cost to the victim
for the methamphetamine cleanup. The damage was $40,000, that insurance covered,
and the victim paid a $500 deductible. The victim and his wife were displaced from their
home for two months due to the damage. The victim‟s wife‟s credit card was also stolen
and used in Bristol, Tennessee. The credit card company credited the victim‟s account
for the amount fraudulently charged.

       The Defendant testified that his last “significant violation” was for public
intoxication in 2004, approximately ten years ago. The Defendant stated that he worked
five or six days a week at Bristol Caverns earning nine dollars an hour. He admitted that
he had supplied methamphetamine “cooks” with pseudoephedrine but said that he no
longer engaged in “that trade” anymore.

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       The Defendant testified that he was unaware that he was not to be on the victims‟
property. He admitted that he was on the victims‟ property but explained that he was
invited. The Defendant said he was unaware that methamphetamine was being cooked at
the property and denied any involvement. He stated that when he saw the
methamphetamine, he said, “It‟s time to go. We need to leave.” The police, however,
had already arrived when he stepped out on the front porch of the victims‟ residence.

       The Defendant confirmed that, if given a probation sentence, he would continue to
work and “pass drug tests.” The Defendant expressed sympathy for the victims stating,
“That should have never taken place that night.”

       The trial court considered, as a mitigating factor, that the crime was not a crime
involving violence. The trial court noted that although the Defendant told the preparer of
the presentence report that he did not use illegal drugs, he told sheriff‟s deputies that he
smoked methamphetamine socially.

       The trial court made the following findings in ordering the Defendant to serve a
sentence involving split confinement:

              I am concerned about the gravity of the offense to the victim. . .
       [T]hese victims suffered terribly financially. The insurance company – of
       course, they could afford it, I guess . . . .

              ....

       [I]n this case the victim and his wife are elderly folks. Believe he‟s 80
       according to the report. He is – had his house destroyed by the – in effect,
       by the activities of the various defendants. He had to live in a hotel. He
       had cancer. He was displaced for two months, him and his wife.

              ...

              And quite frankly I‟m not basing this on his prior record . . . . I‟m
       going to require him to serve some time, a split confinement sentence. I‟m
       going to grant probation on condition he serve one year in the county jail.

It is from this judgment that the Defendant appeals.

                                       II. Analysis


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       The Defendant asserts that the trial court abused its discretion when it denied the
Defendant‟s request for a probation sentence or an alternative sentence because it relied
on the victim impact statement. The State responds that the trial court imposed the split
confinement sentence due to the seriousness of the offense and properly considered the
victim impact statement. We agree with the State.

       The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). With regard to alternative sentencing, Tennessee
Code Annotated section 40-35-102(5) provides as follows:

              In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the
       laws and morals of society, and evincing failure of past efforts at
       rehabilitation shall be given first priority regarding sentencing involving
       incarceration.

A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a)(2014). A defendant
is not, however, automatically entitled to probation as a matter of law. The burden is
upon the defendant to show that he or she is a suitable candidate for probation. T.C.A. §
40-3-303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v.
Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will „subserve the ends of justice and the best
interest of both the public and the defendant.‟” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis considering “the nature of the offense and the totality of the
circumstances . . . including a defendant‟s background.” State v. Ashby, 823 S.W.2d
166, 168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). In
determining if incarceration is appropriate in a given case, a trial court should consider
whether:

              (A) Confinement is necessary to protect society by restraining a
              defendant who has a long history of criminal conduct;


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              (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.

T.C.A. § 40-35-103(1). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. T.C.A. § 40-35-103 (2014).

       The trial court found that confinement was necessary to avoid depreciating the
seriousness of the offense. The trial court considered the evidence, the circumstances of
the offense, the Defendant‟s criminal history, education, health, substance abuse, and
employment history. The trial court found the circumstances of these offenses to be
“extraordinary.” The trial court specifically noted the gravity of an offense where an
eighty-year old victim, who while ill with cancer, was forced to relocate to a hotel for two
months because his home was effectively destroyed due to the defendants‟ conduct.

       Although the Defendant complains that he was denied an alternative sentence, we
note that the split confinement sentence is in fact an “alternative sentence.” In our view,
the basis of the Defendant‟s appeal is that he was wrongfully denied full probation or a
sentence to Community Corrections.

       The trial court followed the statutory sentencing procedure, properly weighing the
appropriate factors and sentencing principles in denying a sentence of full probation or a
Community Corrections sentence. Accordingly, the Defendant has failed to establish an
abuse of discretion or otherwise overcome the presumption of reasonableness afforded to
the trial court‟s decision to order the Defendant to serve a sentence involving split
confinement.

       The Defendant also argues that the trial court erred when it considered the victim
impact statement because it is “written hearsay testimony.” This argument is
unpersuasive. A victim impact statement is unique in that it is prepared by the
Department of Correction pursuant to statute. T.C.A. § 40-38-204(a) (2014). Tennessee
Code Annotated section 40-38-202 requires the trial judge to “solicit and consider a
victim impact statement prior to sentencing a convicted offender who has caused
physical, emotional or financial harm to a victim[.]” Further, this Court has held that trial
courts should determine “whether the victim‟s impact testimony contain[s] any relevant
and reliable evidence relating to enhancing or mitigating factors and/or any other
sentencing consideration, and then decid[ed] what weight, if any, should be given to that
                                             6
evidence in fashioning an appropriate sentence.” State v. Blackhurst, 70 S.W.3d 88, 95
(Tenn. Crim. App. 2001). In our view, this is what the trial court did during the
sentencing hearing with regard to the victim impact statement contained in the
presentence report. The Defendant is not entitled to relief as to this issue.

                                    III. Conclusion

       After a review of the record and applicable law, we conclude that the trial court
properly sentenced the Defendant. In accordance with the foregoing reasoning and
authorities, the judgments of the trial court are affirmed.


                                               _________________________________
                                               ROBERT W. WEDEMEYER, JUDGE




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