        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 16, 2013

                  STATE OF TENNESSEE v. JOHN D. PRUITT

                  Appeal from the Circuit Court for Grundy County
                 Nos. 4894, 4895, 4896   Thomas W. Graham, Judge


                No. M2012-02353-CCA-R3-CD - Filed August 15, 2013


Appellant, John D. Pruitt, entered guilty pleas to vandalism of property valued at more than
$500 but less than $1,000, burglary, felony escape, and theft of property valued at $10,000
or more but less than $60,000. Pursuant to the terms of the guilty plea, appellant received
an effective six-year sentence, and the State dismissed the remaining charges against him.
The parties submitted the issue of alternative sentencing to the trial court for determination.
Following a sentencing hearing, the trial court ordered the effective six-year sentence to be
served in the Tennessee Department of Correction (“TDOC”). Appellant contends that the
trial court did not properly consider his request for split confinement. Following our review,
we discern no error and affirm the judgments of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS, J R., and
C AMILLE R. M CM ULLEN, JJ., joined.

B. Jeffery Harmon, District Public Defender; and Robert G. Morgan, Assistant District
Public Defender, Jasper, Tennessee, for the appellant, John D. Pruitt.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
J. Michael Taylor, District Attorney General; and David Shinn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           I. Facts

       This appeal arises from the trial court’s denial of alternative sentencing following
appellant’s guilty pleas to several criminal offenses.
                           A. Guilty Plea Submission Hearing

       On August 13, 2012, appellant pleaded guilty to four offenses stemming from four
separate events. The State offered the following factual bases for each of the pleas:

             In the first case, . . . he is going to enter the plea to vandalism over $500
      ....

             The testimony would be . . . that . . . on August 3, 2011, . . . [Officer
      Josh Brown] made an arrest of [appellant] for disorderly conduct and
      possession of drug paraphernalia, and while he was transporting [appellant] to
      the Grundy County jail, [Officer Brown] came upon another crime scene, [and]
      he had to stop and assist another officer. While he was assisting that officer,
      [appellant] damaged the inside of the patrol car and actually broke the door.
      [He] [w]as able to get out of the door, out of the car, and he escaped from the
      car. The deputy would testify that the amount of damage done to the vehicle
      was at least $500.

      ....

             [In] [t]he next case, . . . [appellant] is entering a plea to a burglary. . .
      .

             The testimony would be that on October 22, 2011, a burglary . . .
      occurred at the Summerfield Market here in Grundy County. The owner
      contacted the Monteagle Police Department. [Officer] Jack Hill . . .
      investigated. There was a video surveillance camera in the store, and during
      the burglary[,] several items were taken, including what is called [“]Marty[”]
      incense, which would be . . . like a synthetic marijuana. . . . [O]n the video
      camera[,] [Officer] Hill could see the person who broke into the store . . . and
      would identify that person as being [appellant], and the owner would testify he
      did not give [appellant] permission to burglarize his store. . . .

      ....

             [In] [t]he next case. . . [,] [h]e’s entering a plea of guilty to escape. . .
      .

            The testimony would be that on November 24, 2011, [appellant] was an
      inmate at the Grundy County Sheriff’s Department. During a cell search, the

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       correctional officers discovered [appellant] . . . was no longer in the jail, and
       he was then later apprehended outside the jail by the officers, and he was being
       held in custody on a felony charge. . . .

             In [the last] case. . . [,] he’s going to enter a plea of guilty to theft over
       $10,000. . . .

              The testimony would be that Phillip Sons and Tammy Sons owned an
       outbuilding that was near their home. In that outbuilding was a four-wheeler,
       an off-road vehicle, and . . . on November 26, 2011, that four-wheeler turned
       up missing. [Appellant] was found at another location in Grundy County by
       [Investigator] Chip Andy, and he was in possession of this four-wheeler. The
       four-wheeler was identified by the Sons as being their property, and . . . the
       value of the property is over $10,000. . . .

        Based on the foregoing facts, appellant entered guilty pleas to vandalism of property
valued at more than $500 but less than $1,000, burglary, felony escape, and theft of property
valued at $10,000 or more but less than $60,000. Pursuant to the terms of the plea
agreement, he received a two-year sentence for vandalism, a two-year sentence for burglary,
a one-year sentence for escape, and a three-year sentence for theft. The sentences for
vandalism and burglary were ordered to be served concurrently, and the sentences for escape
and theft were each to be served consecutively to each other and to the aforementioned two-
year sentence, resulting in an effective sentence of six years. In conjunction, the State
dismissed the charges of vandalism of the Summerfield Market, theft from the Summerfield
Market, burglary of the Sons’ outbuilding, vandalism of the Sons’ four-wheeler, disorderly
conduct, and evading arrest. The parties agreed to submit the issue of alternative sentencing
to the trial court.

                                    B. Sentencing Hearing

       At the September 28, 2012 sentencing hearing, appellant testified that he was twenty-
one years of age, had been using drugs for several years, and did not complete high school.
His biological father died from a methamphetamine overdose when appellant was twelve
years old. Appellant’s stepfather died from a drug overdose, and his brother had a drug
problem. Appellant indicated at the hearing that he began using drugs and alcohol while he
was in high school. His friends at the time encouraged the behavior.

       Appellant admitted that in August 2011, he burglarized the Summerfield Market after
business hours. He stole “Marty” incense, which is a form of synthetic marijuana, and
cartons of cigarettes. Appellant testified that when he committed the offenses, he was

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intoxicated from taking multiple one-milligram doses of Xanax and drinking a pint of Wild
Turkey bourbon. Thus, appellant had little memory of the events of that evening due to his
allegedly intoxicated state. When cross-examined as to why he broke into the store, appellant
stated that he had no “good” reason. He indicated that due to his intoxicated state, he “didn’t
care that day about much.”

        Appellant was subsequently arrested for vandalism, burglary, and theft. However,
while being held in jail on the charges, appellant escaped. He testified at the hearing that a
jail guard, Ramsey Womack, was disliked by many of the inmates. In fact, appellant said that
many of them wanted to file grievances against the jailer. Appellant alleged that in return
for his convincing the other inmates not to file the grievances, Mr. Womack left a jail door
unlocked through which appellant could freely exit the jail. Appellant and inmate Ronald
Meeks left the jail and went to a local convenience store where they purchased alcohol. Both
of them then returned to the jail. On a subsequent occasion, appellant and Mr. Meeks exited
the jail via the same route to purchase tobacco products. However, on that occasion, a guard
discovered Mr. Meeks slipping back over the prison fence. Appellant hid in the woods to
avoid capture. When the guard took Mr. Meeks inside, he used the door through which they
had left and locked it behind them. Appellant was, therefore, locked out of the jail.

        Appellant testified that he did not turn himself in at the jail. Rather, he found a
telephone and called friends to pick him up. He and his friends then stole a four-wheeler and
rode it through the neighboring woods while intoxicated. The police found appellant several
days later in the garage of the owner of the four-wheeler. The owner later told police that
the four-wheeler suffered approximately $1,000 damage as a result of the ride through the
woods. Appellant could not account for the damage to the four-wheeler.

        The trial court noted appellant’s extensive criminal record from Coffee County. At
the time of the Summerfield Market burglary, appellant was on probation as a result of
several guilty pleas. Appellant had been charged with aggravated burglary and theft over
$1,000 resulting from two separate incidents. Appellant burglarized a home, and he also
stole a lock box containing cash from a vendor at a flea market. In addition, in July 2010 –
a year before the Summerfield Market burglary – appellant was charged with aggravated
assault after a confrontation with the cousin of his girlfriend. Appellant ultimately pleaded
guilty to misdemeanor assault. The prosecutor in Coffee County offered appellant a plea
bargain disposing of all counts. The State agreed to an effective four-year suspended
sentence if appellant abided by the terms of his probation, which included anger management
classes. In the year between the Coffee County plea bargain and the Summerfield Market
burglary, appellant completed only one class and submitted to one alcohol and drug
assessment.



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       At the sentencing hearing, the trial court expressed a desire to place appellant in the
drug court program because of appellant’s youth and because of his underlying drug problem
and statements indicating that he would welcome help. However, appellant was not eligible
for the drug court program because of the assault conviction in Coffee County. The trial
court also commented on the probability that the Coffee County trial court would revoke
appellant’s probation based on his committing new offenses and his failing to comply with
the terms of his suspended sentence.

       The State indicated that it considered appellant’s youth when recommending the
length of his sentences, stating that he received “the lowest amount of time on each sentence
that he could get.” Further, the court noted that after an offender violated probation by
committing new crimes, he is rarely granted probation for the new offenses. In passing
sentence, the trial court discussed the three primary factors to consider when ordering a
sentence involving confinement and determined that all three factors applied to appellant’s
case. See Tenn. Code Ann. § 40-35-103(1) (2010).

        First, given the age of appellant and the number of serious crimes he had already
committed, the trial court opined that confinement would serve to protect the public from a
defendant with an extensive criminal history. See id. § 40-35-103(1)(A). Second, the court
reasoned that if appellant were allowed to commit several serious crimes and receive only
probation, deterrence would be negligible, and the seriousness of the offenses would be
denigrated. See id. § 40-35-103(1)(B). Third, appellant was on probation at the time of the
Summerfield Market burglary, thus supporting application of the factor that other less
restrictive measures had been applied unsuccessfully. See id. § 40-35-103(1)(C). The trial
court noted that “everything points to just incarceration.”

       The State suggested the (“TDOC”) boot camp as an alternative to incarceration. If
appellant could complete the 120-day program, he would be placed on probation. Appellant’s
counsel stated that he would be amenable to the idea. The State stressed to the court that the
program is intensive and strict, and given appellant’s history of escape from jail, he may not
be able to conform to the rigors of the program. When asked by the trial court, however,
appellant indicated he was interested in pursuing the option. Ultimately, based on the record
and testimony at the sentencing hearing, the trial court sentenced appellant to six years in
TDOC but recommended the boot camp program.

                                        II. Analysis

      Appellant challenges the imposition of a sentence of full confinement, arguing that
he should have received a sentence of split confinement.



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                                   A. Standard of Review

        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the 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 involved; (5) evidence
and information offered by the parties on mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -210(b) (2010); Tenn. Code Ann. § 40-35-114 (2010 & Supp. 2012). In
addition, “[t]he sentence imposed should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(4) (2010 &
Supp. 2012).

        Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. § 40-35-114 (2010 & Supp. 2012); Tenn. Code Ann. § 40-35-210(c) (2010). The
2005 amendments set forth certain “advisory sentencing guidelines” that are not binding on
the trial court; however, the trial court must nonetheless consider them. See id. § 40-35-
210(c). Although the application of the 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 must also 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). The weighing
of mitigating and enhancing factors is left to the sound discretion of the trial court. State v.
Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving applicable mitigating
factors rests upon appellant. State v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL
548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial court’s weighing of the various
enhancement and mitigating factors is not grounds for reversal under the revised Sentencing
Act. Carter, 254 S.W.3d 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)).

      A trial court should base its decision regarding alternative sentencing on the following
considerations:

       (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;

       (C)    Measures less restrictive than confinement have frequently or recently
              been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2010).

       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). If a trial
court misapplies an enhancing or mitigating factor in passing sentence, said error will not
remove the presumption of reasonableness from its sentencing determination. Bise, 380
S.W.3d at 709. 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.” Id. at 709-10. Moreover,
under such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See Carter, 254 S.W.3d at 346. 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 Comm’n Cmts.; State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).

                            B. Denial of Alternative Sentencing

       Appellant claims that the trial court erred by failing to consider his request for split
confinement. In his brief, he argues that “the trial court failed to reflect on whether a
sentence of continuous confinement to be served in a local jail or workhouse in conjunction
with a term of probation . . . was an appropriate sentence.”

        At the sentencing hearing, appellant’s counsel asked the court to fashion a remedy that
would demonstrate to the Coffee County trial court, where appellant had yet to answer for
his probation violation, that appellant had been accepted into a facility or program that would
be amenable to the Coffee County court. Counsel requested that the court consider “one year
of split confinement on each one of these cases[,] and that would certainly keep [appellant]
in jail for a bit longer.” In sum, because there were four cases integrated into the plea
agreement, counsel asked the court for a split sentence of four years to serve rather than six
years.

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        It should be noted that counsel’s request embodied a remedy that is precluded by law.
Tennessee Code Annotated section 40-35-306 provides that “[a] defendant receiving
probation may be required to serve a portion of the sentence in continuous confinement for
up to one (1) year in the local jail or workhouse, with probation for a period of time up to and
including the statutory maximum time for the class of the conviction offense.” Pursuant to
the statute, the trial court could only have imposed a one-year sentence in the local jail.
However, according to the terms of the plea agreement, three of the four sentences were to
be served consecutively to each other. To have accepted appellant’s request, the trial court
would have imposed four one-year sentences, three of which were aligned consecutively,
rendering an effective three-year sentence in the local jail. The trial court was without
jurisdiction to sentence appellant in this fashion.

       Moreover, as noted above, the trial court sentenced appellant to a six-year sentence
in confinement but recommended that he be accepted into the boot camp program of TDOC.
If successful, appellant would be released on probation after completion of the 120-day
program. Appellant, through counsel, acquiesced in the trial court’s ruling, stating, “I
wouldn’t object to that[.] Judge, that’s a good program for young men like this.” The State
advised that if appellant failed to comply with the terms of the program, he would be placed
into the general population section of the prison. The trial court inquired of appellant
whether he wanted to attempt the boot camp program, to which appellant answered, “Yes,
Your Honor.”

       We first observe that because appellant1 acquiesced in the trial court’s ruling, he
cannot now complain about the sentence he received. “[I]t is well-settled that a litigant ‘will
not be permitted to take advantage of errors which he himself committed, or invited, or
induced the trial court to commit, or which were the natural consequence of his own neglect
or misconduct.’” State v. Robinson, 146 S.W.3d 469, 493 (Tenn. 2004) (quoting Norris v.
Richards, 246 S.W.2d 81, 85 (1952)); see also State v. Smith, 24 S.W.3d 274, 279-80 (Tenn.
2000); Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”).

       We must also note that the trial court’s recommendation that appellant be placed in
boot camp has been deemed a “non-incarcerative” sentence by this court because successful
completion of the program results in a suspended sentence. See State v. Cole, No. 02C01-
9708-CC-00324, 1998 WL 305375, at *3 (Tenn. Crim. App. June 11, 1998) (classifying total
probation, split confinement, and the TDOC boot camp program as non-incarcerative


       1
           We note for the record that appellant was represented by the same attorney at trial and on appeal.


                                                     -8-
alternative sentences). Thus, appellant’s argument that the trial court declined to consider
his request for split confinement, another form of a non-incarcerative sentence, is contrary
to the law.

      This court is aware that the trial courts are without jurisdiction to “sentence” a
criminal defendant to the boot camp program; the trial courts may only recommend that
TDOC place the offender in said program. As such, should TDOC reject the trial court’s
recommendation, we nonetheless conclude that appellant is not entitled to relief.

        In determining the manner of service of appellant’s sentence, the trial court considered
the factors set forth in Tennessee Code Annotated section 40-35-103(1) regarding sentences
involving confinement. The trial court stated:

              Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct. He has about as long a history as
       he could given his age. . . .

               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 the offense. Certainly, you . . . commit
       three or four crimes and get an immediate probation doesn’t speak [too] highly
       of the seriousness of the crime.

                 Then[,] the third consideration is [that] measures less restrictive than
       confinement have frequently or recently been applied unsuccessfully[,] and
       that . . . applies. Recently[,] he was on probation[,] is on probation now[,] and
       did all these things.

              So everything . . . points to just incarceration.

       The record supports the trial court’s sentencing determination. The presentence report
indicates that appellant was previously convicted of assault (reduced from aggravated
assault), aggravated burglary, and various driving infractions. He was on probation in Coffee
County for the previous offenses when he committed the multitude of offenses in the instant
case. In addition to the offenses to which he pleaded guilty, appellant garnered several
additional charges that were either dismissed pursuant to the plea agreement or for which the
grand jury did not return indictments. Given appellant’s lack of success in complying with
the terms of his probation and his committing new offenses while on probation, taken
together with the statutory factors governing sentences involving confinement, the trial court



                                              -9-
did not abuse its discretion in ordering appellant to serve his effective six-year sentence in
confinement.

                                      CONCLUSION

       Based on the record as a whole, the briefs of the parties, and the applicable law, we
discern no error and affirm the judgments of the trial court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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