        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs at Knoxville February 29, 2012

              STATE OF TENNESSEE v. DEVARIES M. LOCKE

                Appeal from the Criminal Court for Davidson County
                     No. 2009A763     Monte Watkins, Judge




                  No. M2010-02247-CCA-R3-CD - Filed May 11, 2012




A Davidson County jury found appellant, Devaries M. Locke, guilty of possession of a
firearm. The parties stipulated to his status as a felon, but the jury was not so informed. As
a result of the jury’s decision and the stipulation, appellant was convicted of being a
convicted felon in possession of a firearm, a Class E felony. The trial court sentenced him
as a Range II, multiple offender, to three years of split confinement with one year to serve
followed by two years of supervised probation. On appeal, appellant challenges the
sufficiency of the evidence to support his conviction and argues that his sentence is
excessive. After reviewing the record, the parties’ briefs, and the applicable law, we affirm
the judgments of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL, J.,
joined. J ERRY L. S MITH, J., not participating.

Dawn Deaner, District Public Defender; Emma Rae Tennent (on appeal) and Chase T. Smith
(at trial), Assistant District Public Defenders, Nashville, Tennessee, for the appellant,
Devaries M. Locke.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Jennifer McMillen, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                           OPINION

                                I. Facts and Procedural History

      A Davidson County Grand Jury indicted appellant for being a convicted felon in
possession of a firearm, a Class E felony. The trial court held a jury trial on May 24, 2010.

       At the jury trial, Metro-Nashville Police Department Officer William Dillon testified
that on September 7, 2008, he and Officer Jeffrey Mitchell were in an unmarked police
vehicle working a patrol unit in downtown Nashville. The area had a large amount of vehicle
and pedestrian traffic. As the officers approached the intersection of Second Avenue South
and Korean Veterans Boulevard, Officer Dillon observed a black vehicle. Officer Dillon saw
appellant outside the vehicle throwing punches at someone through the passenger side
window of the vehicle. Appellant stepped away from the vehicle, and Officer Dillon saw
that he had a gun in his right hand.

       Officers Dillon and Mitchell, who were wearing their police uniforms, approached
appellant when they saw him with the gun. They announced, “‘Police. Drop the gun. Drop
the gun,’ probably at least ten times[.]” Appellant dropped the gun after the officers told him
to do so eight or nine times. Officer Dillon said that appellant was waving the gun in the air
and “making movements back and forth . . . on the sides, all over the place.” The officers
placed appellant on the ground, handcuffed him, and took him into custody.

        Officer Dillon testified that appellant was irate and screaming that he wanted the
officers to kill him. Appellant did not say anything to Officer Dillon about having been in
a fight. Officer Dillon said that they did not stop the black vehicle at the scene because their
attention was on appellant. Officer Dillon did not see anyone try to pull appellant into the
vehicle, try to grab appellant, or pull a gun on appellant. Officer Dillon did not suspect that
appellant had the gun to protect himself.

        On cross-examination, Officer Dillon testified that he could only observe appellant
throwing punches and could not see what was going on inside the vehicle. He said appellant
had a gun in his hand when he backed away from the vehicle. As the officers approached
appellant and the vehicle, the vehicle drove away. Officer Dillon did not recall whether he
initially activated the police vehicle’s blue lights, but he said that he activated them after the
incident because of the traffic.

      Officer Dillon testified that the gun the officers confiscated from appellant was not
loaded. They did not have the gun tested for fingerprints, and Officer Dillon did not know
whether anyone had used it in other crimes.

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       Officer Jeffrey Mitchell, with the Metro-Nashville Police Department, testified that
on September 7, 2008, he was riding with Officer Dillon in an unmarked police vehicle. The
officers saw appellant beside a vehicle that was in the intersection of Second Avenue South
and Korean Veterans Boulevard. Appellant appeared to be punching someone inside the
vehicle.

        The area of the incident had very heavy vehicle and pedestrian traffic that night due
to Tennessee State University’s homecoming and a concert. When the traffic began to clear,
the vehicle drove away, and appellant walked toward the sidewalk. Appellant turned and
Officer Mitchell saw that appellant was carrying a gun. The officers exited their vehicle and
repeatedly commanded appellant to get on the ground and drop his weapon. The officers had
to repeat the command several times before appellant complied. Officer Mitchell said that
for a moment “it seemed like [appellant] was undecided, before he finally tossed [the gun]
off into some nearby bushes.”

        Officer Mitchell “covered” appellant with his firearm while Officer Dillon handcuffed
him. Appellant was crying and “very upset.” He repeatedly told the officers to shoot and kill
him. Appellant had a strong odor of alcohol, slurred speech, and appeared intoxicated. He
never stated to Officer Mitchell that he was in danger or that anyone in the vehicle had tried
to hurt him. The officers seized the gun from appellant. During the trial, Officer Mitchell
identified a gun as the one they confiscated from appellant.

        On cross-examination, Officer Mitchell testified that neither he nor Officer Dillon
could see anyone inside the vehicle because appellant was blocking the passenger side
window. After the altercation, appellant did not conceal the gun. He walked to the sidewalk
at a “leisurely pace” and did not flee the scene. The officers did not conduct any tests to
determine whether appellant was intoxicated. Officer Mitchell stated that it was possible that
appellant was in a state of shock. According to Officer Mitchell, appellant did not raise the
gun or point it. Officer Mitchell did not fingerprint the gun, which was not loaded.

       The officers did not see appellant with the gun until the vehicle drove away. Officer
Mitchell did not pursue the vehicle because appellant, who was the immediate threat,
diverted his attention. The officers did not get close enough to the vehicle to see its license
plate. The officers carried a portable radio, and their police vehicle had a radio in it. They
did not use their radio to notify dispatch about appellant until after they had taken him into
custody because they did not have time.

        At the close of the State’s proof, appellant moved for a judgment of acquittal, which
the trial court denied. Appellant waived his right to testify and did not put on any proof. The
jury convicted appellant of possession of a firearm. The defense had already stipulated to

                                              -3-
appellant’s prior felony conviction. Thus, appellant was a convicted felon in possession of
a firearm.

        At the sentencing hearing, the State relied on the presentence report. Appellant
testified that he had violated his parole from a twelve-year sentence for a Williamson County
drug conviction. He was also serving a concurrent sentence for another drug conviction.
Appellant did not have any prior weapons charges. At the time of the sentencing hearing,
he had been in the Tennessee Department of Correction for approximately two years. While
in the Tennessee Department of Correction’s custody, he participated in the “HVAC” class
but could not complete it because of his “court situation.”

      Appellant grew up in Franklin, Tennessee, and his family still lived in Franklin.
Appellant did not have any children. He had a high school diploma. Appellant had worked
many jobs, including working at Goodwill and general labor work. He could not keep a job,
however, because he was repeatedly incarcerated. Appellant was twenty-eight years old and
had been incarcerated since he was sixteen.

       Regarding the underlying offense, appellant said that a man pulled up to him and
asked him to come to the vehicle. Appellant went to the vehicle, and the person in the
vehicle began talking to him about a woman. Appellant had “words” with the man, and the
man pulled a gun on him. Appellant “rushed in the car and grabbed the gun.” Appellant and
the man fought over the gun, and appellant took the gun away from him. When appellant
grabbed the gun, the man in the vehicle drove away. Police officers drew their guns on
appellant and told him to drop to the ground. Appellant said that he dropped to the ground
as they ordered.

        Appellant testified he had never been in a situation involving violence or guns and
said he was remorseful for the present situation. Appellant stated he was “trying to get fast
money.” He said he realized that was “not the way to go.” He testified that he had no choice
but to take the gun from the man in the vehicle because his “life was on the line.” He did not
know how the gun became unloaded and thought the clip must have fallen out in the man’s
vehicle. Appellant did not understand why the officers did not go after the man in the
vehicle. Appellant claimed that until the incident with the gun, he had done everything that
he was supposed to do while on parole.

        On cross-examination, appellant testified that he was convicted of his first felony in
2002 for selling crack cocaine in Franklin. He received an eight-year sentence on probation
for that offense. As part of his probation, he had to attend a boot camp and three Narcotics
Anonymous meetings per week. He was also ordered to receive inpatient treatment for
twenty-eight days. Appellant said he attended the meetings and went for outpatient treatment

                                             -4-
in Franklin. Authorities served appellant with a sealed indictment on the day he completed
his boot camp program. Appellant said that in Franklin, “they don’t just come and get you
right then; they let indictments stack up on you.” According to appellant, that was why he
had so many drug charges.

       Appellant admitted that he had been in trouble since he was sixteen years old. He
agreed that he had never been able to handle alternative sentencing. Appellant did not have
a drug problem and said that he did not have any mental health problems before he was
incarcerated. He did not have any physical disabilities. Appellant denied telling the officers
that he was from Franklin and surmised that they must have seen it on his paperwork. He
further denied telling the officers that he had the gun because he was from Franklin and did
not trust people in Nashville.

        After hearing the evidence, the trial court sentenced appellant as a Range II, multiple
offender. The court found that confinement was necessary to avoid depreciating the
seriousness of the offense. The court further found as enhancement factors that appellant had
a previous history of criminal convictions or behavior in addition to those necessary to
establish the appropriate range and that appellant committed the felony while released on
parole. Because appellant was on parole when he committed the instant offense, the court
ordered him to serve his sentence consecutively to the sentence he was serving at the time
of trial. See Tenn. R. Crim. P. 32(c)(3)(A). The court sentenced appellant to three years of
split confinement with one year to serve in the department of correction followed by
supervised probation. The trial court subsequently denied appellant’s motion for new trial.
Appellant timely appealed.

                                         II. Analysis

                               A. Sufficiency of the Evidence

       Appellant argues that the evidence was insufficient to convict him. The State
responds that any rational trier of fact could find appellant guilty beyond a reasonable doubt,
and the record supports the sentence imposed by the trial court. We agree with the State.

       It is well established that once a jury finds a defendant guilty, the presumption of
innocence is removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1992). Thus, on appeal, a convicted defendant bears the burden of
demonstrating to this court why the evidence will not support the jury’s verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant must establish that no “rational trier of fact” could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

                                              -5-
307, 319 (1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P.
13(e). The jury’s verdict approved by the trial judge accredits the State’s witnesses and
resolves all conflicts in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).
The State is entitled to the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn from that evidence. Carruthers, 35 S.W.3d at 558. The trier
of fact resolves all questions concerning the credibility of the witnesses, conflicts in trial
testimony, the weight and value to be given the evidence, and all factual issues raised by the
evidence. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court does not attempt
to reweigh or re-evaluate the evidence. State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006).
Moreover, we do not replace the jury’s inferences drawn from the circumstantial evidence
with our own inferences. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). We apply these
rules to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d
389, 392-93 (Tenn. Crim. App. 1999).

        Appellant does not dispute his status as having been previously convicted of a felony
drug offense. He only contests the sufficiency of the evidence of his possession of the
firearm, arguing that he did not intentionally, knowingly, or recklessly possess the gun.
Tennessee Code Annotated section 39-17-1307(b)(1)(B) provides, in pertinent part: “A
person commits an offense who possesses a firearm, as defined in § 39-11-106, and . . . [h]as
been convicted of a felony drug offense.” This statute contains no mens rea requirement.
See id. § 39-11-301(b) (“A culpable mental state is required . . . unless the definition of an
offense plainly dispenses with a mental element.”); Crittenden v. State, 978 S.W.2d 929, 930
(Tenn. 1998) (when proscriptive statute neither expressly requires nor plainly dispenses with
the requirement for a culpable mental state, intent, knowledge, or recklessness suffices to
establish the necessary culpable mental state). Thus, to sustain the conviction, the State was
required to prove that appellant intentionally, knowingly, or recklessly possessed a firearm
after having been previously convicted of a felony drug offense. As provided in Section 39-
11-106(a) of Tennessee Code Annotated:

       (11) “Firearm” means any weapon designed, made or adapted to expel a
       projectile by the action of an explosive or any device readily convertible to that
       use[.]

              ....

       (18) “Intentional” means that a person acts intentionally with respect to the
       nature of the conduct or to a result of the conduct when it is the person’s
       conscious objective or desire to engage in the conduct or cause the result.



                                              -6-
              ....

       (20) “Knowing” means that a person acts knowingly with respect to the
       conduct or to circumstances surrounding the conduct when the person is aware
       of the nature of the conduct or that the circumstances exist. A person acts
       knowingly with respect to a result of the person’s conduct when the person is
       aware that the conduct is reasonably certain to cause the result[.]

              ....

       (31) “Reckless” means that a person acts recklessly with respect to
       circumstances surrounding the conduct or the result of the conduct when the
       person is aware of, but consciously disregards a substantial and unjustifiable
       risk that the circumstances exist or the result will occur. The risk must be of
       such a nature and degree that its disregard constitutes a gross deviation from
       the standard of care that an ordinary person would exercise under all the
       circumstances as viewed from the accused person’s standpoint[.]

Tenn. Code Ann. §§ 39-11-106(a)(11), (18), (20), (31) (2010).

        Viewed in the light most favorable to the State, the evidence shows that Officers
Dillon and Mitchell were patrolling downtown Nashville when they observed appellant in
an altercation with someone in a vehicle. After the vehicle drove away, the officers observed
appellant holding a gun. The officers repeatedly told appellant to drop the gun, but he did
not immediately comply. From this evidence, a rational trier of fact could have found that
appellant had the “conscious objective or desire” to possess a firearm. Tenn. Code Ann.
§ 39-11-106(a)(18) (2010). Appellant was aware that he had a gun, and thus, he knowingly
possessed it. Further, the trier of fact could have found that appellant acted recklessly with
respect to circumstances surrounding the conduct or the result of the conduct when the
officers confronted appellant and he continued to hold the firearm. The jury obviously
accredited the testimony of the officers. Based on the evidence at trial, we conclude that a
rational trier of fact could have found appellant guilty beyond a reasonable doubt. Appellant
is not entitled to relief on this issue.

                                         B. Sentence

       Appellant argues that the trial court erred in imposing an “enhanced three-year
sentence.” Specifically, appellant argues that the trial court erred by applying an inapplicable
enhancement factor and by failing to apply a mitigating factor.



                                              -7-
        When an accused challenges the length and manner of service of a sentence, this court
conducts a de novo review on the record “with a presumption that the determinations made
by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2010). We condition this presumption 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). We do not apply the presumption to the
legal conclusions reached by the trial court in sentencing the accused or to the determinations
made by the trial court predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d
305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App.
1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

        In conducting a de novo review of a sentence, we must consider (a) any evidence
received at the trial and/or sentencing hearing; (b) the presentence report; (c) the principles
of sentencing; (d) the arguments of counsel about sentencing alternatives; (e) the nature and
characteristics of the offense; (f) any mitigating or enhancement factors; (g) any statistical
information provided by the administrative office of the courts as to Tennessee sentencing
practices for similar offenses; (h) any statements made by the accused in his own behalf; and
(i) the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-103, 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim.
App. 2001). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2010), Sentencing
Commission Cmts.; Ashby, 823 S.W.2d at 169.

      When imposing a sentence within the appropriate range of punishment for a
defendant:

       [T]he 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.


Tenn. Code Ann. § 40-35-210 (2010). From this, “the trial court is free to select any

                                              -8-
sentence within the applicable range so long as the length of the sentence is ‘consistent with
the purposes and principles of [the Sentencing Act].’” State v. Carter, 254 S.W.3d 335, 343
(Tenn. 2008) (quoting Tenn. Code Ann. § 40-35-210(d)). The trial court’s weighing of the
various enhancement and mitigating factors is not grounds for reversal under the revised
Sentencing Act. Id. at 345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD,
2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007) aff’d as corrected, 271 S.W.3d
90 (Tenn. 2008)).

       Pursuant to the 2005 amendments, our Sentencing Act has abandoned the statutory
minimum sentence and renders enhancement and mitigating factors advisory only. See Tenn.
Code Ann. §§ 40-35-114, 40-35-210(c) (2010). The 2005 amendments set forth certain
“advisory sentencing guidelines” that do not bind the trial court; however, the trial court is
required to consider them. See id. § 40-35-210(c). Although the application of factors is
advisory, a court shall consider “[e]vidence and information offered by the parties on the
mitigating and enhancement factors in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5).
The trial court is also required to place on the record “what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, to ensure fair and
consistent sentencing.” Id. § 40-35-210(e).

       Here, the trial court sentenced appellant to three years as a Range II, multiple
offender. The court ordered that appellant serve one year in confinement and the remainder
on supervised release. Appellant’s sentence in this case is consecutive to appellant’s twelve-
year sentence in an unrelated case. As a Class E, Range II felony offender, he was subject
to a sentence between two and four years. See id. § 40-35-112(b)(5).

        When sentencing appellant, the trial court found as enhancement factors that appellant
had a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range and that appellant was on parole at the time he
committed the felony. Id. § 40-35-114(1), (13)(B). The trial court did not find any
mitigating factors. Appellant argues that the court erred when it applied as an enhancement
factor that he had a previous history of criminal convictions or behavior in addition to those
necessary to establish the appropriate range. He contends that the State did not prove that
his three prior felony convictions with the same offense dates and the same disposition dates
“could properly be considered separate offenses for purposes of enhancement.” We disagree.

       The record supports the trial court’s finding that appellant had a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range. The presentence report shows that appellant has four prior felony
convictions. One prior conviction was for an offense that occurred on February 16, 2002.
The three remaining convictions were for offenses that occurred within a twenty-four-hour


                                             -9-
period on July 15, 2002. While the trial court was required to treat each offense as a single
conviction for determining the sentencing range, the twenty-four-hour merger rule does not
apply to sentence enhancement. See Tenn. Code Ann. § 40-35-106(b)(4) (2010) (“[M]ultiple
felonies committed within the same twenty-four-hour period constitute one (1) conviction
for the purpose of determining prior convictions.”); State v. Lawrence Hailey, No. W2009-
00759-CCA-R-3CD, 2010 WL 2219574, at *11 (Tenn. Crim. App. May 24, 2010) (“the
‘24-hour merger rule exception’ applies only to the use of prior convictions to determine a
defendant’s range, not to determine the application of enhancement factor (1).”); State v.
Horton, 880 S.W.2d 732, 734 (Tenn. Crim. App. 1994) (noting that under Tennessee Code
Annotated section 40-35-106(b)(4), defendant’s two convictions were to be treated as one
conviction for the purpose of establishing defendant’s sentence range unless they fell within
the bodily injury or threatened bodily injury exception). Thus, although appellant’s three
convictions on July 15, 2002, merged for purposes of establishing his sentencing range, they
did not merge for purposes of applying sentence enhancement factor (1).

        Moreover, the record supports the trial court’s consideration as an enhancement factor
that at the time appellant committed the felony he was on parole. State v. Julius Cameron
Hill, No. M2007-00133-CCA-R3-CD, 2008 WL 2521442, at *5 (Tenn. Crim. App. June 25,
2008); see Tenn. Code Ann. § 40-35-114(13)(b) (2010). It is undisputed that appellant was
on parole when he committed the underlying offense. The trial court sentenced appellant to
three years, which is the middle of his sentencing range. Despite appellant’s recent failures
at measures less restrictive than confinement, the court suspended two years of appellant’s
sentence on supervised release. We conclude that the enhancement factors applied by the
trial court were sufficient to support the sentence.

       Appellant further argues that the trial court should have applied as a mitigating factor
that appellant “although guilty of the crime, committed the offense under such unusual
circumstances that it is unlikely that a sustained intent to violate the law motivated the
criminal conduct.” Tenn. Code Ann. § 40-35-113(11) (2010). Specifically, appellant argues
that he was involved in a heated confrontation, after which he was left holding a gun. He
argues that he had no prior arrests for violence or weapon possession and that he was doing
well under the terms of his parole until this incident.

        The weighing of mitigating and enhancing factors is left to the sound discretion of
the trial court. Carter, 254 S.W.3d, at 345. The burden of proving applicable mitigating
factors rests upon the defendant. State v. Mark Moore, No. 03C01-9403-CR-00098, 1995
WL 548786, at * 6 (Tenn. Crim. App. Sept. 18, 1995). The record does not reflect that this
offense was committed under unusual circumstances. It instead shows that appellant was
engaged in a fist fight with someone in a vehicle in the middle of a crowded intersection.
After the vehicle left the scene, officers observed appellant with a gun. After the officers

                                             -10-
commanded appellant to drop the weapon several times, he finally complied. Although
appellant had no prior arrests for violence or weapon possession and was doing well under
the terms of his parole until this incident, the record shows that he had a history of criminal
convictions. “[A]n appellant’s criminal history may be relevant in determining whether a
sustained . . . intent to violate the law motivated criminal conduct.” State v. Jama Elaine
Penley, E2003-00820-CCA-R3CD, 2004 WL 1056496, at *24 (Tenn. Crim. App. May 11,
2004) (citing State v. Lee Roy Gass, No. E2000-00810-CCA-R3-CD, 2001 WL 767011, at
*17 (Tenn. Crim. App. July 3, 2001)). The record does not support the application of this
mitigating factor; thus, we conclude that the trial court did not err in declining to apply it.
Accordingly, appellant is not entitled to relief on this issue.

        The trial court denied full probation in this case and ordered appellant to serve a
sentence of split confinement. A court no longer presumes that a defendant is a favorable
candidate for alternative sentencing under the revised Tennessee sentencing statutes. Carter,
254 S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory”
sentencing guidelines provide that a defendant “who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should 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) (2010).

      A trial court may deny alternative sentencing and sentence a defendant to confinement
based on any of the following considerations:

       (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.

Id. § 40-35-103(1). Furthermore, the trial court should examine the defendant’s potential for
rehabilitation or lack thereof when determining whether an alternative sentence is
appropriate. Id. § 40-35-103(5).

       The trial court properly denied full probation to appellant. The court sentenced
appellant as a Range II offender. Thus, he was not a favorable candidate for alternative
sentencing. See Tenn. Code Ann. § 40-35-102(6) (2010). Although not a favorable

                                             -11-
candidate, appellant was still eligible for alternative sentencing because his sentence is three
years. See Tenn. Code Ann. § 40-35-303(a) (2009) (“A defendant shall be eligible for
probation under this chapter if the sentence actually imposed upon the defendant is ten (10)
years or less[.]”). This record would have supported a sentence of confinement in the
Tennessee Department of Correction. The trial court did not err by rejecting full probation
and awarding split confinement.

       The trial court also found that confinement was necessary to avoid depreciating the
seriousness of the offense. The court noted that appellant committed the underlying crime
while on parole. Although measures less restrictive than confinement have recently and
frequently been applied unsuccessfully to appellant, the trial court nevertheless granted
appellant an alternative sentence of split confinement with two years of supervised release.
The sentence imposed by the trial court is not greater than that deserved for the offense. We
find no error in the sentence imposed by the trial court.

                                        III. Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.

                                                     ____________________________________
                                                     ROGER A. PAGE, JUDGE




                                              -12-
