        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville May 20, 2014

             STATE OF TENNESSEE v. LARRY DAVID TAYLOR

                 Appeal from the Criminal Court for Sumner County
                  Nos. 823-2012, 571-2012   Dee David Gay, Judge


                 No. M2013-02386-CCA-R3-CD - Filed June 23, 2014


On February 7, 2013, the Defendant, Larry David Taylor, pled guilty to two counts of sexual
exploitation of a minor, a Class D felony; one count of aggravated burglary, a Class C felony;
one count of assault, a Class A misdemeanor; and two counts of bigamy, a Class A
misdemeanor. See Tenn. Code Ann. §§ 39-13-101, -14-403, -15-301, -17-1003. The trial
court imposed an effective six-year sentence and ordered the Defendant to serve one year of
the sentence in confinement with the remainder to be served on community corrections. On
September 13, 2013, the trial court revoked the Defendant’s community corrections sentence
and resentenced the Defendant to a total effective sentence of sixteen years, nine months, and
eighty-seven days to be served in confinement. In this appeal as of right, the Defendant
contends (1) that the trial court erred in ordering his sentences to be served in confinement;
and (2) that the trial court erred by ordering his sentences to be served consecutively.
Following our review, we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and J EFFREY S. B IVINS, JJ., joined.

Russell Elliott Edwards, Hendersonville, Tennessee (at revocation hearing); and Eric Scott
Mauldin, Gallatin, Tennessee (on appeal), for the appellant, Larry David Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Lawrence Ray Whitley, District Attorney General; and Jayson Christopher Criddle, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND
        At the outset, we note that our review of this matter is hampered by the Defendant’s
failure to include a transcript of the guilty plea submission hearing in the record. However,
it appears from the record that the seventeen-year-old victim lived with the Defendant and
his wife and that they “were kind of acting as her authority figures.” There were several
pictures of the victim on the Defendant’s cell phone, including a picture of the victim topless
and a picture of “her genital region.”

       Both the Defendant and the victim admitted to the police that the victim had a sexual
relationship with the Defendant’s wife. The Defendant denied having a sexual relationship
with the victim, but told the investigating officer that on one occasion, he “had walked in on
his wife and the victim” and that “he could have touched the victim.” The victim told the
investigating officer that the Defendant had performed oral sex on her on one occasion.

        As part of the plea agreement, the Defendant received the maximum sentence for each
offense. Additionally, as a condition of his community corrections sentence, the Defendant
was to have no contact with the victim, her family, or any minors. Jennifer Woodard, the
Defendant’s case officer for the Community Corrections Program, filed four violation
warrants against the Defendant between May 1 and August 16, 2013. Ms. Woodard testified
that between February 7 and August 16, 2013, the Defendant had called the victim 184 times
and made 231 attempted phone calls.

        Between February 7 and August 16, 2013, the victim visited the Defendant in jail
twelve times. On one visit, the victim brought her two-year-old daughter. On another, the
victim attempted to sneak into the jail by having her mother sign-in and then “kind of hiding
in the corner of the booth.” Audio recordings of four of the Defendant’s phone calls were
played for the trial court. In one of the recordings, the Defendant and the victim discussed
how they had sex on several occasions. In another, the Defendant and the victim discussed
how to continue speaking to each other without getting caught.

        Ms. Woodard admitted that the victim was eighteen years old when the contact at
issue with the Defendant occurred. Ms. Woodard also admitted that there was no evidence
that the Defendant was harassing the victim or that their relationship was not consensual.
The victim sent a hand-written letter to the trial court requesting that the no contact condition
of the Defendant’s sentence be removed. The Defendant provided the following statement
in his presentence report: “My so-called victim is my current girlfriend and I contacted her.
She has already filled out the paperwork to get the no contact order removed. She is over the
age of [eighteen] so I thought everything would be alright since she filled out the
paperwork.”




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        At the conclusion of the revocation hearing, the State argued that the Defendant
should serve his sentence in confinement because he had a long history of criminal conduct,
confinement was necessary to avoid deprecating the seriousness of the offense, and the
Defendant had “been on probation on a number of occasions.” The Defendant’s presentence
report reflected that the Defendant had previously been convicted three times for assault;
three times for driving on a suspended license; twice for bigamy; and one time each for theft,
possession of drug paraphernalia, and attempted possession of drug paraphernalia. The
Defendant’s first offense occurred in 1997 when the Defendant was eighteen years old and
he continued to regularly commit offenses until his arrest in this case.

        In ordering the Defendant’s sentence to be served in confinement, the trial court stated
as follows:

              The aggravating thing is that [the Defendant] kept on getting warrants
       and it didn’t stop him one bit. It appears that nothing has stopped him and
       he’ll do what he wants to do when he wants it and he’s pretty well stated how
       he feels about the rule of law and probation and his sentence.

               It’s very clear that the Defendant has violated the terms of his sentence
       and it’s clear to me, based on the manner in which he’d done it and how he’s
       done it and the outright just in-your-face attitude, that this sentence will be
       served in the Tennessee Department of Correction and the remainder of the
       sentence will be imposed.

Furthermore, the trial court reviewed all of the Defendant’s prior convictions and imposed
consecutive sentences, stating that there was “ample” evidence in the record that the
Defendant “has an extensive history of criminal conduct and doesn’t give a rip about the law.
He only cares about what he can get out of life. Society is going to be endangered and
women will be victimized as long as he is free.”

                                         ANALYSIS

       The Defendant contends that the trial court erred in ordering that his sentences be
served in confinement. The Defendant argues that the trial court did “not address any of the
factors that . . . [it was] required to follow in order to impose a sentence to serve.” The
Defendant further argues that the trial court “used a factor not enumerated as a proper
sentencing factor,” the Defendant’s repeated violations of the terms of his community
corrections sentence. The Defendant also contends that the trial court erred in imposing
consecutive sentences. The Defendant argues that the trial court applied “a single
unreasonable factor” and that his criminal history was not extensive given that all of his

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convictions were for misdemeanors. The State responds that the trial court did not abuse its
discretion in resentencing the Defendant.

       A trial court may revoke a community corrections sentence upon finding by a
preponderance of the evidence that an offender violated the conditions of his suspended
sentence. Tenn. Code Ann. § 40-36-106(e)(3)-(4); State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991). Upon revoking community corrections, a trial court has the authority to
“resentence the defendant to any appropriate sentencing alternative, including incarceration,
for any period of time up to the maximum sentence provided for the offense committed, less
any time actually served in any community-based alternative to incarceration.” Tenn. Code
Ann. § 40-36-106(e)(4).

        Our supreme court has previously stated that “the sentencing of a defendant to a
community based alternative to incarceration is not final, but is designed to provide a flexible
alternative that can be of benefit both to the defendant and to society.” State v. Griffith, 787
S.W.2d 340, 342 (Tenn. 1990). Further, a “defendant sentenced under the [Community
Corrections Act] has no legitimate expectation of finality in the severity of the sentence, but
is placed on notice by the Act itself that upon revocation of the sentence due to the conduct
of the defendant, a greater sentence may be imposed.” Id.

       However, if the trial court decides to increase a defendant’s sentence beyond that
originally imposed, it may only do so after conducting a new sentencing hearing. State v.
Crook, 2 S.W.3d 238, 240 (Tenn. Crim. App. 1998). The trial court may not arbitrarily
increase the length of the sentence and must state on the record the reasons for the new
sentence. State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996); State v. Chester
Carr Pearson, No. M2011-02241-CCA-R3-CD, 2012 WL 3834031, *4 (Tenn. Crim. App.
Sept. 5, 2012).

       On appeal, the burden is on the defendant to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Cmts. Our supreme court has held
that an “abuse of discretion standard, accompanied by a presumption of reasonableness,
applies to within-range sentences that reflect a decision based upon the purposes and
principles of sentencing, including the questions related to probation or any other alternative
sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        The Defendant was eligible for probation because each of the sentences “actually
imposed upon [him were] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a). Thus,
the trial court was required to automatically consider probation as a sentencing option. Tenn.
Code Ann. § 40-35-303(b). However, no criminal defendant is automatically entitled to
probation as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The

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defendant has the burden of establishing his or her suitability for full probation. See State
v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant must demonstrate
that probation will “subserve the ends of justice and the best interests of both the public and
the defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).

       In determining any defendant’s suitability for alternative sentencing, the 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[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative sentence
would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial court should
impose a sentence that is “no greater than that deserved for the offense committed” and is
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

        We cannot conclude that the trial court abused its discretion in denying the Defendant
a second alternative sentence. In sentencing the Defendant, the trial court discussed in detail
the Defendant’s lengthy criminal history. The trial court’s discussion of the Defendant’s
repeated violations of the terms of his community corrections sentence was not an improper
factor for it to consider. The fact that the Defendant had violated the terms of his community
corrections sentence literally hundreds of times in the span of seven months was a valid
consideration for the trial court in addressing the Defendant’s lack of potential for
rehabilitation and whether measures less restrictive than incarceration had recently been
applied unsuccessfully to the Defendant. As such, we conclude that the Defendant has failed
to overcome the presumption of reasonableness given to the trial court’s decision or show
that the trial court abused its discretion in denying a second alternative sentence.




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        With respect to the trial court’s consecutive sentencing decision, our supreme court
has recently clarified that a trial court’s imposition of consecutive sentences is reviewed by
this court for an abuse of discretion and that “the presumption of reasonableness applies,”
giving “deference to the trial court’s exercise of its discretionary authority to impose
consecutive sentences if it has provided reasons on the record establishing at least one of the
seven grounds listed in Tennessee Code Annotated section 40-35-115(b).” State v. James
Allen Pollard, --- S.W.3d ---, No. M2011-00332-SC-R11-CD, 2013 WL 6732667, at *9
(Tenn. Dec. 20, 2013). “Any one of [the] grounds [listed in Tennessee Code Annotated
section 40-35-115(b)] is a sufficient basis for the imposition of consecutive sentences.” Id.
(citing State v. Dickson, 413 S.W.3d 735 (Tenn. 2013)).

       If a defendant is convicted of more than one criminal offense, regardless of whether
the offenses are felonies or misdemeanors, the trial court is required to determine whether
the sentences will run consecutively or concurrently. Tenn. Code Ann. § 40-35-115(a); see
also Tenn. Op. Att’y Gen. 98-150 (Aug. 12, 1998). A trial court may impose consecutive
sentences if it finds by a preponderance of the evidence that the defendant “is an offender
whose record of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2).

        Consecutive sentences were warranted in this case based upon the Defendant’s
extensive criminal history. See State v. Robert Smith, No. W2006-00998-CCA-R3-CD, 2007
WL 162181, at *4 (Tenn. Crim. App. Jan. 23, 2007) (holding that trial courts are permitted
to consider misdemeanor offenses in determining if an extensive criminal history is
established), perm. app. denied, (Tenn. May 21, 2007). As outlined by the presentence report
and the trial court at the revocation hearing, the Defendant had previously been convicted
three times for assault; three times for driving on a suspended license; twice for bigamy; and
one time each for theft, possession of drug paraphernalia, and attempted possession of drug
paraphernalia. We disagree with the Defendant’s assertion that his eleven prior convictions,
spanning his adult life, did not constitute an extensive criminal history. Accordingly, we
conclude that the trial court did not abuse its discretion in imposing consecutive sentences.

                                       CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.

                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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