        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 18, 2010

            STATE OF TENNESSEE v. CHRISTOPHER METCALF

               Direct Appeal from the Circuit Court for Lincoln County
                       No. S0900052      Robert Crigler, Judge




              No. M2009-02084-CCA-R3-CD - Filed September 20, 2010


The Defendant, Christopher Metcalf, pled guilty to initiation of a process intended to result
in the manufacture of methamphetamine and agreed to a nine-year sentence, with the trial
court to determine the manner of service. At sentencing, the Defendant requested an
alternative sentence, but the trial court ordered the Defendant to serve his entire sentence in
the Tennessee Department of Correction. The Defendant appeals, contending the trial court
erred when it denied his request for an alternative sentence. After a thorough review of the
record and applicable law, we affirm the judgment of the trial court.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and N ORMA M CG EE O GLE, JJ., joined.

William Harold (at trial), Shelbyville, Tennessee, and James R. Frazier (on appeal),
Lawrenceburg, Tennessee, for the Appellant, Christopher Metcalf.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Lindsy Paduch Stempel, Assistant Attorney General; Charles F. Crawford, Jr., District
Attorney General; Hollynn Eubanks, Assistant District Attorney General, for the Appellee,
State of Tennessee.

                                         OPINION
                                          I. Facts

       During the Defendant’s plea submission hearing, the State set forth the following
summary of the factual basis for the Defendant’s guilty plea to initiation of a process
intending to result in the manufacture of methamphetamine:
       [O]n May 9, 2009 deputies for the Lincoln County Sheriff’s department
       received information that there might be a meth lab located in a room at the
       Budget Inn located on the Huntsville Highway here in Lincoln County,
       Tennessee.

              They went to that location to do a knock and talk and were invited in by
       [the Defendant], who they spoke to. [The Defendant] gave a verbal permission
       to search as well as a written permission that was executed.

               And when they did search they found a number of items used in the
       manufacture of methamphetamine, specifically 32 ounces of Coleman camping
       fuel; electrical tape, a bilayer liquid, tubing with residue; Muriatic acid, lithium
       batteries; a plastic container and a pill grinder with residue.

       The Defendant pled guilty and agreed to a nine-year sentence, with the trial court to
determine the manner of service of the sentence. The following evidence was presented
during the Defendant’s sentencing hearing: According to a presentence report introduced by
the State, the Defendant was twenty-eight at the time of this offense and twenty-nine at
sentencing. The report does not indicate what level of education the Defendant received,
saying only that he has worked as a mechanic since becoming an adult.

        The Defendant told the officer who prepared the report that he infrequently drinks
alcohol, has used marijuana since age fifteen or sixteen, and used methamphetamine two to
three times a week between April 20, 2009, and May 9, 2009. He explained that he stopped
using methamphetamine when he was arrested in this case, saying that, for this reason, his
arrest was “a great thing.”

        The report includes a statement from the Defendant who denied any knowledge of the
drug paraphernalia in the hotel room in which police found him. He claimed he was present
in the hotel room only because a friend, who had just given him a ride, asked him to wait in
the hotel room, saying he would “be right back.” He said he simply “was at the wrong place
at the wrong time.”

        The report indicated that the Defendant had at least eleven misdemeanor convictions,
including vandalism, domestic violence, unlawful drug paraphernalia uses and activities,
failure to carry/exhibit driver’s license on demand, two convictions for driving while license
was suspended, failure to stop at scene of accident, having an unregistered vehicle, failure
to appear, theft, and simple possession of a Schedule II substance for resale. The report
indicated that Defendant violated the probation he received for several of these convictions,

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though it does not clearly indicate which sentences were violated.

       In addition to the presentence report, the State introduced documentation of eight
additional convictions not listed within the Defendant’s presentence report: one conviction
for simple possession of a Schedule IV substance; one conviction for domestic assault ; three
convictions for operating a motor vehicle without a driver’s license; four convictions for
possession of “undersized snook”; and four convictions for possession of “out of season
snook.” For each of these convictions, the Defendant received and later violated a probated
sentence.

       The Defendant testified at the sentencing hearing. Acknowledging his long criminal
record, he asked the trial court to grant him probation:

       Man, it ain’t about no sympathy or nothing like that. I don’t know, man. It
       would be nice to get some kind of probation. I know I have got a lot of
       violation[s] of probation on my record. The way I see it, you really can’t
       convict me of my old past. If that is what you have got to do, that’s what you
       have got to do.

He testified that, in the event the court granted probation, family who lived nearby would
provide him with a place to live and help him obtain employment. The Defendant said that
money would not be “a problem,” because his father owned a business and would provide
him with employment. He said he would comply with the terms of probation, including drug
tests. He explained that living drug-free would be “better than what I am looking at, you
know. I am tried of foolishness.” The Defendant testified that he had great confidence in
his skills as an auto mechanic.

         On cross-examination, the Defendant acknowledged that he owed $202.25 related to
a 2007 vandalism conviction, $598.90 on a domestic violence conviction, a total of $1041.81
on three driving license offenses, and $517.05 on a possession of drug paraphernalia
conviction. He testified that he accrued this debt while he was “hanging out on the streets
. . . not knowing what I was supposed to be doing” and said, “Everybody deserves a second
chance.” The Defendant agreed that an auto mechanic “who applies himself” can make
“pretty good money.”

       On redirect examination, the Defendant agreed that being convicted of his first felony
had “opened up his eyes,” though he insisted he was “in here for somebody else’s habit and
not [his] own.”

       At the conclusion of the sentencing hearing, the trial court denied the Defendant’s

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request for alternative sentencing, ordering him to serve his nine-year sentence in
confinement. The Defendant now appeals this judgment.

                                        II. Analysis

        On appeal, the Defendant contends the trial erred when it denied him alternative
sentencing for the nine-year sentence he accepted in his plea agreement. The Defendant
argues that, given the absence of prior felony convictions in his criminal record, the candor
he displayed during the sentencing hearing, and the fact that he has a place to live and work
and a supportive family, the court should have granted some form of an alternative sentence.
The State responds that the trial court properly denied alternative sentencing because it did
so in reliance on sentencing principles, the Defendant’s record, and the circumstances of the
offense.

        When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct 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.” T.C.A. § 40-
35-401(d); State v. Mencer, 798 S.W.2d 543, 549 (Tenn. Crim. App. 1990) (finding
community corrections to be a form of alternative sentencing and therefore holding the de
novo standard of review of T.C.A. § 40-35-402(d) to apply to community corrections). As
the Sentencing Commission Comments to this section note, the burden is now on the
appealing party to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing
Comm’n Cmts. This means that if the trial court followed the statutory sentencing procedure,
made findings of facts which are adequately supported in the record, and gave due
consideration and proper weight to the factors and principles relevant to sentencing under the
1989 Sentencing Act, T.C.A. section 40-35-103 (2006), we may not disturb the sentence even
if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001).

        Due to the 2005 sentencing amendments, a defendant is no longer presumed to be a
favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn.
2008) (citing T.C.A. § 40-35-102(6) (2006)). Instead, a defendant not within “the parameters
of subdivision (5) [of T.C.A. § 40-35-102], and 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.” Id. (footnote
omitted). T.C.A. § 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note that a
trial court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider ”
them. T.C.A. § 40-35-102(6) (emphasis added).

      A defendant seeking probation bears the burden of “establishing [his] suitability.”
T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, “even though

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probation must be automatically considered as a sentencing option for eligible defendants,
the defendant is not automatically entitled to probation as a matter of law.” T.C.A. §
40-35-303 (2006), Sentencing Comm'n Cmts.

       When sentencing the defendant to confinement, 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;

       (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(A)-(C) (2006). In choosing among possible sentencing alternatives, the
trial court should also consider “[t]he potential or lack of potential for the rehabilitation or
treatment.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they
relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn.
Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v.
Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69,
84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

       At the conclusion of the sentencing hearing in this case, the trial court sentenced the
Defendant to the agreed-upon sentence of nine years as a Range I, Standard offender. The
court then set out to determine the manner of service. It first stated that, in determining the
Defendant’s manner of service of his sentence, it was relying upon the evidence at the
sentencing hearing, the presentence report, the nature and characteristics of the criminal
conduct, the principles of sentencing, and the Defendant’s rehabilitative potential.

       The trial court then explicitly addressed the three factors Tennessee Code Annotated
section 40-35-103 instructs courts to address when determining a defendant’s eligibility for
an alternative sentence. First, after acknowledging the absence of prior felonies from the
Defendant’s criminal record and the Defendant’s candor in admitting to his drug use, the trial
court drew attention to the fact that the Defendant had used marijuana since age fifteen or
sixteen and used methamphetamine two to three times a week from April 20, 2009, to May
9, 2009. Though troubled by the Defendant’s long history of drug use, he congratulated the
Defendant on having chosen to stop using methamphetamine after his arrest in May 2009.

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Based upon the Defendant’s admitted drug use and his extensive criminal history, the trial
court found that “confinement [was] needed to protect society by restraining a defendant who
has a long history of criminal conduct.”

       Second, the trial court expressed its belief that methamphetamine is “the worst drug
you can use” due to its tendency to induce violent and irrational behavior. Because the
Defendant’s offense in this case involved methamphetamine drugs, the trial court found that
“incarceration [was] needed to avoid depreciating the seriousness of [the Defendant’s]
offense.” Third, citing the numerous probation violations in the Defendant’s criminal
history, the trial court found that “alternative sentencing ha[d] been tried in the past both
recently and frequently unsuccessfully.” Based upon its three findings under section 40-35-
103 and upon the fact that the Defendant, having been convicted of a Class B felony, was not
a “favorable candidate for probation,” the trial court denied the Defendant an alternative
sentence.

       Indeed, the Defendant is not a “favorable candidate” for alternative sentencing, and
we agree with the trial court’s imposition of confinement. The Defendant has numerous
misdemeanor convictions and admitted to a long history of drug use, which is criminal
conduct. Thus, the record supports the trial court’s finding that “confinement [was]
necessary to protect society by restraining a defendant who has a long history of criminal
conduct.” See T.C.A. § 40-35-103(A). Similarly, the trial court adequately explained its
finding that “confinement was necessary in order to avoid depreciating the seriousness” of
methamphetamine manufacture when it described the highly dangerous effect of
methamphetamine drugs. See T.C.A. § 40-35-103(B). Finally, the presentence report was
replete with documentation of the Defendant’s numerous failures to comply with previous
terms of probation, which supports the trial court’s finding that the “measures less restrictive
than confinement have frequently or recently been applied unsuccessfully to the
[D]efendant.” See T.C.A. § 40-35-103(C). In sum, the record adequately supports the trial
court’s findings and demonstrates that the trial court considered the principles of sentencing,
the facts of this case, and the Defendant’s candor when it imposed confinement. As such,
its denial of alternative sentencing is presumptively correct. See T.C.A. § 40-35-401(d);
Mencer, 798 S.W.2d at 549.

        The Defendant has failed to carry his burden of proving his suitability for probation.
T.C.A. § 40-35-303(b) (2009). We conclude that the Defendant’s lengthy history of criminal
conduct, his past failures to comply with measures less restrictive than confinement, and the
seriousness of the consequences of methamphetamine manufacture require his confinement
in this case. See T.C.A. § 40-35-103(1), (5); Kendrick, 10 S.W.3d at 656; Dowdy, 894
S.W.2d at 305. The Defendant is not entitled to relief on this issue.



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                                     III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude the trial
court properly denied the Defendant an alternative sentence. As such, we affirm the trial
court’s judgment.

                                                 ___________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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