        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs at Jackson May 5, 2015

              STATE OF TENNESSEE v. TERRY LYNN PRIEST

              Direct Appeal from the Circuit Court for Warren County
                     No. F-13963   Larry B. Stanley, Jr., Judge



               No. M2014-02116-CCA-R3-CD – Filed October 1, 2015



The Appellant, Terry Lynn Priest, pled guilty to theft in an amount more than $1,000 and
less than $10,000. He was sentenced as a Range II offender to five years in the
Tennessee Department of Correction. On appeal, the Appellant challenges the trial
court’s denial of alternative sentencing. Upon review, we affirm the judgment of the trial
court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROGER A. PAGE, JJ., joined.

Robert S. Peters, Winchester, Tennessee (on appeal); and Steve Roller, McMinnville,
Tennessee (at trial), for the Appellant, Terry Lynn Priest.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Lisa Zavogiannis, District Attorney General; and Taffy Seagraves,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       On June 14, 2013, the Warren County Grand Jury indicted the Appellant on two
counts of theft of property valued more than $1,000 but less than $10,000, a Class D
felony. On June 2, 2014, the Appellant pled guilty to one count of theft of property
valued more than $1,000 but less than $10,000 in exchange for the dismissal of the other
count. As the factual basis for the plea, the State recited the following:
                        The facts that gave rise to the indictment are that Ms.
                Gina Waters puchased a Toyota Camry, I believe, from [the
                Appellant] in August[] 2011. She put $1,000.00 down and
                paid the sales tax and agreed to make payments on it. She did
                make her payments. She was given a drive-out tag that day.
                There was no title given to her at that moment. She never
                received – there was no title ever produced in order for her to
                get her tags. In December[] 2011 she had a wreck. There
                was still no title produced and the insurance company would
                not pay out on the vehicle because there was no title produced
                so effectively she was deprived of her vehicle and her money
                at that point. The transaction did occur in Warren County.

The plea agreement provided that the Appellant would be sentenced as a Range II,
multiple offender but that the trial court would determine the length and manner of
service of the sentence.

         At the sentencing hearing, Trooper George Scott Dickson testified that he was
assigned to the Criminal Investigation Division of the Tennessee Highway Patrol (THP).
His division was responsible for state investigations of automobile thefts. Trooper
Dickson testified that the regional office had received more than a dozen complaints from
the sheriff’s office, the district attorney’s office, and investigators about the number of
drivers who had been stopped by troopers and found to be “driving vehicles without any
paperwork.”1 Following an investigation, the THP learned that the vehicles were
originating from Gaw’s Auto Mart (“Gaw’s”), an automobile wholesaler in Cookeville.
Trooper Dickson spoke with employees at Gaw’s and learned that the Appellant had
purchased a number of vehicles “on floor plan credit” and that Gaw’s had retained the
titles to the vehicles until Gaw’s was paid by the Appellant.

       Trooper Dickson said that initially, Gaw’s had a good working relationship with
the Appellant; he would take five or six vehicles, then, after he paid for them, he would
take five or six more cars. Over time, the Appellant fell behind on his payments and
began promising to pay “next time.” Gaw’s stopped doing business with the Appellant in
2011.

      Trooper Dickson said that several purchasers were advised to file claims with the
Appellant’s bonding company. Trooper Dickson explained that car dealers were required

1
  Tennessee Code Annotated section 55-3-127(a) provides, “It is a Class C misdemeanor for any person
to fail or neglect to properly endorse or deliver any certificate of title to the department, a transferee, or
other person lawfully entitled to the certificate of title.”
                                                       -2-
to post a bond in order to be licensed. Two people who bought cars from the Appellant
filed claims against his bond and received money from the bonding company.

       On cross-examination, Trooper Dickson said that “floor planning” was a common
practice among automobile dealers. Trooper Dickson acknowledged that in 2008, car
dealers and other businesses were adversely affected by the economic crisis. Trooper
Dickson conceded that if the Appellant’s customers did not pay him for their cars, “it just
ha[d] a domino effect.”

       On redirect examination, Trooper Dickson said that during the “economic
downfall,” he did not investigate any other complaints that reached the “criminal level.”
He said that he had been unable to track down all of the cars the Appellant sold without a
title.

       The victim, Sherry Gina Waters, testified that she purchased a 2003 Toyota from
the Appellant. The purchase price of the car was around $7,000. The victim paid the
Appellant $4,000 in cash, gave him a set of rings as a $1,300 payment for the car, and
arranged to pay $150 per month until the balance was paid in full. She consistently paid
on time and was still paying for the car on December 24 when she was involved in a
wreck. Her insurance company would not pay for the damage because the victim had
never been given the title to the car. She repeatedly asked the Appellant for the title; the
Appellant said that he would get it for her, but he never did.

      The victim said that after her accident, she and her sister went to the internet site
Carfax and

              found out that they [(sic)] was a place that had the title and I
              called them and talked to them and they wouldn’t tell me
              anything. Just said that, yes, they knew about the car and
              seems like they told me they had the title but they couldn’t
              release it until it was paid for and I said, well, I can’t pay for
              it without the title.

       The victim could not recall exactly how much she had paid the Appellant for the
car. She acknowledged that she received $4,770 from the Appellant’s bonding company.

       On cross-examination, the victim said that she reviewed all of her paperwork and
receipts before filling out her victim impact statement. She acknowledged that in the
statement, she said the Appellant owed her $7,541.49 in restitution.

      The Appellant testified that in 1992, he was convicted in federal court of
conspiracy to traffic marijuana and conspiracy to steal whiskey. He received a sentence
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of seventy-five months. He served five and one-half years in confinement and five years
on parole.

       The Appellant said that in 2000, he obtained a license from the Tennessee Motor
Vehicle Commission to sell used cars. He said that he had been in the used car business
for approximately fourteen or fifteen years and that he sold an average of 500 cars per
year. The last year his business was open, car sales dropped dramatically, and he had
trouble paying his debts. The motor vehicle commission inspected his business and gave
him “some write-ups about record keeping.” He said that the victim was the first person
to complain about him to the commission.

       The Appellant said that Gaw’s was his main supplier of vehicles and that the
vehicles he bought from them were worth from $50 to $10,000. The Appellant explained
that Gaw’s billed him for the cars and that he picked up the title after he sold the vehicles.
The Appellant “salvaged[ or] junked” some of the cars and sold the others. The
Appellant said that approximately ten percent of his clients paid cash for a vehicle.

       The Appellant said that his business began to decline in 2008 and continued to
deteriorate until 2011. Around the same time, the Appellant went through a divorce that
had a “[m]ajor impact” on his finances. He said that he was bankrupt and that he had lost
the business and his home. After his business closed, he supported himself by logging,
cutting timber, and repairing old automobiles. The Appellant said that he was willing to
pay restitution to the victim.

       The Appellant said that he was living with his mother, who was disabled and in
her mid-80s. The Appellant asked the court to grant him probation. The Appellant said
that he had never had “issues” with drugs but acknowledged that he had been convicted
of possession of drugs.

       On cross-examination, the Appellant said that his business was mostly a “buy
here-pay here lot.” He said that he never performed credit checks on his customers,
noting that they were usually low income people with no credit. The Appellant said that
his business began waning in 2008; however, he did not have a problem until the last few
months of operation.

       Shawn Priest, the Appellant’s son, testified that he worked with the Appellant at
the car dealership for approximately five years. Priest was not working there at the time
the victim bought her vehicle. Priest said that customers occasionally complained about
the cars but that he and the Appellant resolved the complaints by “either trad[ing] them
something that they could register at the time,” repairing the cars, or returning their
money. Priest believed the Appellant would comply with the conditions of probation.

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Priest stated that the Appellant lived with his mother and rented a garage to work on old
cars.

       The State submitted the Appellant’s presentence report and copies of judgments of
conviction. The documents reflected that on February 14, 1994, the Appellant was
convicted in federal court of conspiracy to traffic marijuana and conspiracy to steal Jack
Daniel’s whiskey. On August 6, 1991, he was convicted in Lincoln County of possession
of marijuana. On May 26, 1993, he was convicted in Warren County of the possession of
more than 10 pounds but less than 70 pounds of marijuana with the intent to sell or
deliver. On March 31, 1993, he was convicted in Rutherford County of conspiracy to
deliver more than 10 pounds but less than 70 pounds of marijuana and of the sale of more
than 10 pounds but less than 70 pounds of marijuana. The presentence report also
reflected that the Appellant had violated a probationary sentence on two occasions.

        The trial court applied enhancement factor (1), that the Appellant had a previous
history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range, and enhancement factor (14), that he used a position of
public or private trust or used a professional license in a manner that significantly
facilitated the commission or fulfillment of the offense. Tenn. Code Ann. ' 40-35-114(1)
and (14). The trial court applied mitigating factor (1), that the Appellant neither caused
nor threatened serious bodily injury. Tenn. Code Ann. ' 40-35-113(1). The trial court
sentenced the Appellant as a Range II, multiple offender to five years.

       The trial court noted that the Appellant’s presentence report reflected that the
Appellant had violated probation on two occasions. Additionally, the victim in the
instant case was 74 years old. The court said:

             I think probation after having committed the felonies and the
             offenses that you have in the past . . . and essentially
             defrauding this lady, who I won’t say is elderly but she is 74
             years old, in the manner that you did and having violated
             probation in the past I think probation would be improper.

       On appeal, the Appellant challenges the trial court’s denial of alternative
sentencing, specifically complaining that the trial court should have considered
community corrections.

                                      II. Analysis

      Appellate courts review the length, range, or manner of service of a sentence
imposed by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v.
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Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive
sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the
standard to alternative sentencing). In conducting its review, this court considers 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 enhancement and
mitigating 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
by the appellant in his own behalf; and (8) the potential for rehabilitation or treatment.
See Tenn. Code Ann. '' 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98.
The burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.
Code Ann. ' 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory 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(c).

       On appeal, the Appellant contends that the trial court erred by not sentencing him
to community corrections. Initially, we note that the Appellant did not request that the
trial court grant community corrections; instead, the Appellant requested probation.
Nevertheless, the trial court addressed the requirements of alternative sentencing in
general and probation in particular.

       Generally, an appellant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing, absent evidence to the contrary. See Tenn. Code Ann. ' 40-35-
102(6). Although the Appellant was convicted of a Class D felony, he was sentenced as a
Range II, multiple offender; therefore, he is not considered a favorable candidate for
alternative sentencing. Nevertheless, an appellant is eligible for alternative sentencing if
the sentence actually imposed is ten years or less. See Tenn. Code Ann. ' 40-35-303(a).
                                            -6-
The Appellant’s sentence meets this requirement.

      When determining a defendant’s suitability for alternative sentencing, courts
should consider whether the following sentencing considerations, set forth in Tennessee
Code Annotated section 40-35-103(1), are applicable:

              (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.

Additionally, “[t]he potential or lack of potential for the rehabilitation or treatment of the
defendant should be considered in determining the sentence alternative or length of a
term to be imposed.” Tenn. Code Ann. ' 40-35-103(5). A defendant with a long history
of criminal conduct and “evincing failure of past efforts at rehabilitation” is presumed
unsuitable for alternative sentencing. Tenn. Code Ann. ' 40-35-102(5).

       The Community Corrections Act of 1985 was enacted to provide an alternative
means of punishment for “selected, nonviolent felony offenders in front end community
based alternatives to incarceration.” Tenn. Code Ann. ' 40-36-103(1). Tennessee Code
Annotated section 40-36-106(a)(1) provides that an offender who meets all of the
following minimum criteria shall be considered eligible for community corrections:

              (A) Persons who, without this option, would be incarcerated
              in a correctional institution;

              (B) Persons who are convicted of property-related, or drug- or
              alcohol-related felony offenses or other felony offenses not
              involving crimes against the person as provided in title 39,
              chapter 13, parts 1-5;

              (C) Persons who are convicted of nonviolent felony offenses;

              (D) Persons who are convicted of felony offenses in which
              the use or possession of a weapon was not involved;
                                             -7-
              (E) Persons who do not demonstrate a present or past pattern
              of behavior indicating violence;

              (F) Persons who do not demonstrate a pattern of committing
              violent offenses.

An offender is not automatically entitled to community corrections upon meeting the
minimum requirements for eligibility. State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim.
App. 1998).

        The trial court’s comments indicate that its denial of alternative sentencing, which
would include community corrections, was based upon a finding that measures less
restrictive than confinement had frequently or recently been applied unsuccessfully to the
Appellant and that he lacked potential for rehabilitation. As we noted earlier, the
Appellant has numerous prior convictions. Despite receiving probationary sentences, the
Appellant has continued to reoffend. See State v. Alton Ray Thomas, No. M2006-00815-
CCA-R3-CD, 2007 WL 465135, at *4 (Tenn. Crim. App. at Nashville, Feb. 13, 2007).
We conclude that, given the Appellant’s criminal record, his failure to rehabilitate, and
his previous inability to comply with the terms of release into the community, the trial
court did not err by denying alternative sentencing, including community corrections.

                                     III. Conclusion

       In sum, we affirm the judgment of the trial court.



                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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