                                                                                        08/29/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs March 21, 2018

           STATE OF TENNESSEE v. GREGORY LYNN KELLEY

                  Appeal from the Circuit Court for Maury County
                      No. 25276 Stella L. Hargrove, Judge
                     ___________________________________

                           No. M2017-01158-CCA-R3-CD
                       ___________________________________

Defendant, Gregory Lynn Kelley, was indicted by the Maury County Grand Jury for one
count of sale of more than 0.5 grams of methamphetamine, a Class B felony. Defendant
pleaded guilty to the lesser-included offense of facilitation of the sale of
methamphetamine over 0.5 grams, a Class C felony. Following a sentencing hearing, the
trial court sentenced Defendant as a Range II offender to serve eight years and six months
in the Tennessee Department of Correction. Defendant contends on appeal that the trial
court abused its discretion when it denied Defendant’s request to serve his sentence on
probation. Having reviewed the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Brandon E. White, Columbia, Tennessee (on appeal); and Claudia S. Jack, District Public
Defender; and Kendall Fisher Stivers, Assistant Public Defender, Columbia, Tennessee,
for the appellant, Gregory Lynn Kelley.

Herbert H. Slatery III, Attorney General and Reporter; Linda D. Kirklen, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Patrick Powell,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Sentencing hearing

       Gena Caldiraro, an employee of the Tennessee Department of Correction, testified
that she interviewed Defendant in jail to prepare a risk assessment for the presentence
report. She testified that Defendant’s “risk level would be high” based on Defendant’s
prior criminal history. She testified that Defendant’s score would require him to report as
a maximum offender several times per month. Defendant scored low risk in the “friends”
category because he reported that he had friends who were positive influences. He
scored moderate risk in the education category because he did not graduate from high
school or obtain his G.E.D. He scored high risk in the mental health category.

       Defendant testified at the sentencing hearing. He agreed that he was a Range II
offender based on his criminal history and that his “punishment level goes up.”
Defendant testified that he pleaded guilty to aggravated assault in Maury County in 1991
when he was 20 or 21 years old. He received a sentence of three years suspended on
probation. Defendant testified that he successfully completed probation but that he
believed his probation period was extended in order to allow him more time to pay fines.
He also pleaded guilty in 2008 in Giles County to facilitation of the sale of Xanax and
was sentenced to four years suspended on probation. Defendant testified that he “might
have violated [probation] one time for failure to report[,]” but he could not recall.

        Defendant testified that he had “an on-and-off battle with drugs pretty much all
[his] life.” Defendant testified that he was bipolar and that he had attempted suicide and
“been in a couple of mental hospitals.” Defendant testified that medication helped with
his violent temper and anxiety.

        Defendant gave his version of the events surrounding the offense to which he
pleaded guilty. Defendant denied that he sold methamphetamine. He testified that he
was asked by an acquaintance (the confidential informant (C.I.) working for law
enforcement) to get drugs for him, and Defendant repeatedly refused. Defendant testified
that a friend of his overheard his phone call and offered to get drugs for the C.I.
Defendant arranged to meet the C.I. at Shoney’s. Defendant testified that he stayed
outside while his friend (the C.I.) “went inside and did what he had to do [and] came
back.” Defendant told the friend that he did not want any drugs or money from the
transaction, and Defendant took him back to his car. The friend’s car had a flat tire, so
Defendant allowed him to borrow his truck. Defendant testified his friend “took the
drugs back to the Drug Task Force, and that’s all I know.” Defendant admitted that he
facilitated the drug sale.

        Defendant testified that he installed drywall for 25 years, but he was receiving
disability for a shoulder injury. He testified if he was granted probation, he “would be on
disability until [his] shoulder [wa]s fixed and . . . then [he] would go back to work.”
Defendant testified that he had tumors in his neck that needed to be removed. Defendant
testified that having been in jail had “taught [him] a lesson[,]” and he believed he would
be successful on probation. He testified that he would “[s]tay clean” and report as
directed.
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       On cross-examination, Defendant testified that he was 47 years old. He testified
that his drug use was “mostly recreational [and] not every day.” Defendant
acknowledged that he had been given probation for his aggravated assault conviction
when he was 20 years old. He also acknowledged that he had been caught “quite a few
times” driving on a revoked license. Defendant admitted that he had been on probation
15 times, but he was “only violated three of those or four of those.”

       At the conclusion of the sentencing hearing, the trial court found that Defendant
had an extensive criminal history, including 13 prior convictions. The court noted, “since
age 20, [Defendant] has found a way to stay in the Criminal Justice System one way or
another.” Additionally, the trial court found that Defendant “has been given numerous
chances to stay out of jail; stay on probation; stay away from drugs; stay away from his
friends. And today, the stakes are high, because he has not done that. This is his fault.”
The trial court noted that Defendant’s probation had been revoked previously and that
Defendant “had difficulty abiding by the rules of probation.” The trial court found
Defendant was not credible, noting that his testimony at the sentencing hearing
contradicted the information he gave the preparer of his presentence report.

        The trial court applied two enhancement factors: Defendant had a previous history
of criminal convictions in addition to those necessary to establish the range; and previous
efforts at release in the community were unsuccessful. See T.C.A. § 40-35-114(1) and
(8). The trial court found that incarceration was needed to protect society and deter
others and that a sentence of full probation would depreciate the seriousness of the
offense, noting that methamphetamine use was “a real problem” in light of the number of
arrests and convictions in recent years. The trial court sentenced Defendant to eight and
one-half years in confinement and ordered Defendant to pay a $2,000 mandatory
minimum drug fine.

Analysis

       Defendant contends that the trial court abused its discretion when it denied his
request for alternative sentencing and ordered him to serve his sentence in confinement.
The State argues that the trial court properly sentenced Defendant. We agree with the
State.

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
                                           -3-
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). In State v.
Caudle, 388 S.W.3d 273, 278-79, the supreme court expanded its holding in Bise to trial
courts’ decisions regarding alternative sentencing.

       The party challenging the sentence on appeal bears the burden of establishing that
the sentence was improper. T.C.A. § 40-35-401 (2017), Sentencing Comm’n Cmts. In
determining the proper sentence, the trial court must consider: (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 the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See T.C.A. § 40-35-210 (2017); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. T.C.A. § 40-35-103 (2017).

      Under Tennessee Code Annotated section 40-35-103, the trial court should look to
the following considerations to determine whether a sentence of confinement is
appropriate:

        (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(1) (2017).

        As a Range II multiple offender convicted of a Class C felony, Defendant was
eligible for alternative sentencing but he was not considered a favorable candidate for
alternative sentencing. See T.C.A. §40-35-303(a), §40-35-102(6). The record shows that
the trial court considered the purposes and principles of sentencing as well as the factors
                                           -4-
relevant to imposing a sentence of confinement. The record supports the trial court’s
findings that Defendant had an extensive history of criminal offenses and that measures
less restrictive than confinement had on multiple occasions been unsuccessfully applied
to Defendant. The trial court denied Defendant’s request for an alternative sentence
based upon the need to avoid depreciating the seriousness of the offense and the need for
deterrence. See id. § 40-35-103(1)(B). Defendant has not demonstrated that the trial
court abused its discretion by denying him an alternative sentence.

                                    CONCLUSION

       The trial court did not abuse its discretion when it denied Defendant’s request for
an alternative sentence. Accordingly, we affirm the judgment of the trial court.


                                  ____________________________________________
                                  THOMAS T. WOODALL, JUDGE




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