                                                                                            03/14/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 18, 2018

                  STATE OF TENNESSEE v. HARRY GILLEY

               Appeal from the Criminal Court for Hamilton County
        No. 297340, 298587, 297463, 297465, 297466, 297701, 298581, 298583
                          Thomas C. Greenholtz, Judge
                     ___________________________________

                            No. E2018-00691-CCA-R3-CD
                        ___________________________________


The Defendant, Harry Gilley, pled guilty to one count of aggravated burglary, a Class C
felony; four counts of burglary of a habitation under construction, Class D felonies; five
counts of felony theft of property, Class E felonies; two counts of misdemeanor theft of
property, Class A misdemeanors; and one count of vandalism of property, a Class A
misdemeanor, stemming from charges in eight indictments. In exchange for his pleas, the
Defendant received an effective Range III sentence of fifteen years with the manner of
service to be determined by the trial court. After a hearing, the trial court ordered that the
Defendant serve his sentence in confinement, which the Defendant appeals. After
review, we affirm the sentencing decision of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and D. KELLY THOMAS, JR., JJ., joined.

Steven G. Moore, Chattanooga, Tennessee, for the appellant, Harry Gilley.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Neal Pinkston, District Attorney General; and Ancharlene D. Davis,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                                          FACTS
       The Defendant and a co-defendant, David Walker, were charged with multiple
counts of burglary, theft and vandalism as a result of their breaking into homes that were
under construction or newly built and stealing the appliances. The State summarized the
underlying facts of the cases as follows:

      [B]oth [the Defendant] and [co-defendant] were involved in numerous
      amounts of property offenses throughout Hamilton County. Essentially
      they would break into newer built homes, newer constructed homes
      throughout the East Brainerd, Ooltewah areas throughout the county. Once
      they did that they would look for new appliances to take from those
      properties.

             Upon removing that property and in the process of removing that
      property they would cause significant damage to the homes from which
      they were taking that. The damage that was caused was suffered by several
      construction companies throughout the Hamilton County area.

       The Defendant pled guilty to one count of aggravated burglary, four counts of
burglary of a habitation under construction, five counts of felony theft of property, two
counts of misdemeanor theft of property, and one count of vandalism of property in
exchange for an effective sentence of fifteen years with the manner of service to be
determined by the trial court. At the sentencing hearing, which was conducted over the
course of several dates, a representative from one of the victim construction companies
stated that approximately 50 of the 156 homes his construction company built in 2015
were broken into over the course of a 6 to 12 month time period. He testified to the
physical damage done to the homes, as well as the uneasiness the break-ins brought into
the neighborhoods. He said that other homebuilders in the area were likewise victimized.
He noted that since the Defendant and co-defendant were captured, “[W]e’ve had zero
break-ins and zero thefts. Since then. Zero. Not one.”

       Hannah Rooker, a presentence investigator for the Chattanooga Office of
Probation and Parole, testified that she prepared the Defendant’s presentence report. Ms.
Rooker reviewed the Defendant’s criminal history for the court, beginning with a
conviction in 1980 when the Defendant was twenty-one years old. The trial court
counted six felonies and nineteen to twenty-three misdemeanors, depending on the
appropriate classification for city court offenses, in the Defendant’s record. Ms. Rooker
noted that the Defendant’s criminal history indicated that he would have been on parole
in another case when he was arrested on the current charges.

      Clair Mills, a corrections counselor with the probation and parole department of
the Tennessee Department of Correction, testified that she interviewed the Defendant in
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order to complete the risk and needs assessment of the presentence report. She said that
the assessment classified the Defendant as a low risk to reoffend, but she noted that the
assessment was based on a fewer number of prior convictions than the Defendant actually
had on his record.

       Ms. Mills later submitted a letter to the court in which she explained “the
intricacies of the STRONG-R evaluation tool insofar as it is being used to consider risk
and needs.” Regarding the STRONG-R assessment, the court stated:

       Very candidly, the [c]ourt has concerns about how the STRONG-R
       assessment calculates previous convictions in its risk analysis, because as
       the letter suggests it groups all convictions that are disposed of or resolved
       on a single date no matter when the offenses occurred variously. So it is
       possible that you could have separate offenses occurring over a period of
       time, but because of the happenstance of the court scheduling and a
       resolution on one particular day, those are counted under the STRONG-R
       assessment as only one conviction. That strikes me as bizarre, but that’s
       where it is. And so we’ll take it for what it’s worth.

        David McNabb, the executive director for Teen Challenge Midsouth Adult Center
in Chattanooga, testified that Teen Challenge is a faith-based twelve-month residential
recovery program for adults and explained the details of the program. Mr. McNabb said
that the Defendant had been accepted into the program, pending the court’s approval, and
he believed that the Defendant would be a good candidate for the program. Mr. McNabb
said that “[a]t one point in time back probably the late 70s[,] [the program] had [an] 86
percent success rate,” meaning that the graduates were “living clean” five to seven years
after completing the twelve-month program. Mr. McNabb estimated that of those who
enter the Teen Challenge program, approximately forty percent complete it.

       The Defendant testified that he had been in custody in the Hamilton County Jail
for “almost 500 days[.]” He said that after several requests, he was allowed to “go on the
work force” at the jail, and “[i]t wasn’t just any job, it was one of the most trusted jobs at
the Hamilton County jail, in supply.” He had not been written up, had disciplinary
problems, or been fired from his job, and had been given permission to enter highly
secured areas of the jail to perform work duties. The Defendant presented letters of
support from members of the Hamilton County Sheriff’s Department, as well as a
diploma from the jail inmate workforce program signifying that he had “demonstrated a
successful work ethic [as] an inmate workforce volunteer for 345 shifts.”

      The Defendant testified that he had applied to further his education since being in
custody. He said that he served in the Army from 1977 to 1979. He testified about his
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repeated efforts to get accepted into the Teen Challenge program and then addressed the
court as follows:

               When I first entered this jail, Your Honor, I’m not the same man that
       sits here today. I thought God’s all I got. And I realized that he’s all I’ve
       really needed. He’s been good to me. Whatever the Court’s decision is
       here today, I’m good with it because I’m not the same man that entered this
       jail almost 900 days ago.

              I think it’s important for me to get to Teen Challenge because it’s
       going to enable others to look at my life and the age that I’m at and all and
       say, hey, this thing is doable. All things with God are possible.

       The Defendant testified that drugs were “rampant” in the jail, but he had stayed
clean. Although he had been offered the opportunity to take drugs and to sell drugs, he
declined to do so. He acknowledged having a “pretty lengthy criminal history” but
explained that the majority of those offenses were related to his drug abuse. The
Defendant affirmed he pled guilty to the various offenses in this case and claimed to
accept responsibility for his actions. He said that while in custody on the present
offenses, he cooperated with law enforcement by providing information on cold cases
and corrupt officers. The Defendant admitted that he was on parole during the time
period he committed the present offenses and that he had also falsified his drug screen
specimens while on parole.

       Joel Davenport testified that he was previously the director of the Transformation
Project, a faith-based alternative to incarceration, and prior to that had worked with Teen
Challenge. Mr. Davenport said that he first met the Defendant in 2001 when they both
were incarcerated and involved in some classes together in the jail. Mr. Davenport was
aware that the Defendant had been accepted into Teen Challenge and had reached out to
some people with the program on behalf of the Defendant.

       When asked if he thought the Defendant was a good candidate for the Teen
Challenge program, Mr. Davenport initially responded, “Well, I do[,]” but then
“qualified” his answer with a brief history of his dealings with the Defendant. He
explained that he was the director of the Transformation Project when the Defendant
entered the program, and the Defendant had been in a number of his classes. Mr.
Davenport said that he had “seen progress at different times with [the Defendant,]” but he
was aware that the Defendant “eventually had gone back into relapse.” The Defendant
told Mr. Davenport that “one of the problems was that nobody was keeping their thumb
on him like [Mr. Davenport] was.” Mr. Davenport noted that Teen Challenge is a more
highly supervised program than the Transformation Project. Mr. Davenport opined that
                                           -4-
the Defendant “could only be successful in the outside with that intensive structure.” He
elaborated that the Defendant “is a good inmate. And he’s a good worker. When he’s
sober he’s a very nice guy. He’s a hard worker, very focused. But he’s going to have to
have somebody holding his hand very regularly until he is very certainly on the right
footing.” Concerning the Defendant’s potential for rehabilitation, Mr. Davenport
summarized: “I see [the Defendant], one, scared of where he’s gotten himself in life,
which I’ve never seen before. And I see him ready to not come back.”

        Asked if there is a time limit for participation in Teen Challenge, Mr. Davenport
stated that the program was a minimum of one year but that there were “people that it has
taken them three years to finish Teen Challenge. And they’re still working there as well
because they realize that they’re not safe just going back out in the world.” Mr.
Davenport testified that the Defendant has a sister who is “very supportive and very
strong[,]” and that he had “coached her over the years” to help her avoid enabling the
Defendant’s bad behavior. Mr. Davenport elaborated:

      He’s got to take responsibility for his decisions and his actions. But she
      does care and that’s a leg up on a lot of people in the system is to have
      somebody on the outside that really cares, and cares enough to call the
      police on you if she needs to.

       Detective Brian Ashburn of the Hamilton County Sheriff’s Office testified that his
office investigated “a rash of burglaries of homes that were under construction or in the
process of being built” that began in February 2015. He noted that “[p]rimarily the
refrigerators, stoves, microwaves. Any appliances that w[ere] in the house” were being
removed from the houses. On October 12 or 13 of that year, Detective Ashburn was
involved in the surveillance of the Defendant and co-defendant with the Chattanooga
Police Department. Police heard a phone call between the Defendant and Wendy Snyder
wherein Ms. Snyder requested delivery of a stove, which led to their surveillance of the
Defendant.

       Detective Ashburn testified that officers began watching the Defendant around
11:00 p.m. and followed him around for approximately three hours. At some point, they
lost contact with the Defendant, but a patrol unit spotted his vehicle with “what looked
like to be an appliance in the back of the Jeep Cherokee.” The Defendant and co-
defendant were then stopped and taken into custody. Through their investigation, the
police determined that the Defendant and co-defendant were stealing appliances and
selling them to Ms. Snyder, who then sold them on Craigslist. Detective Ashburn said
that the Defendant did not provide any information to assist in the recovery of the stolen
property.

                                          -5-
       After a lengthy and detailed discussion in which it considered the principles of
sentencing and the evidence before it, the trial court ordered that the Defendant serve his
sentence in confinement.

                                       ANALYSIS

        The Defendant argues that “the trial court abused its discretion in finding that the
nature and circumstance of the offense and the [D]efendant’s criminal history outweighed
all the evidence before the court that favored an alternative sentence.”

       A trial court is to consider the following when determining a defendant’s sentence
and the appropriate combination of sentencing alternatives:

       (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 §§ 40-35-113 and 40-35-114;

       (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 wishes to make in the defendant’s own
       behalf about sentencing; and

       (8) The result of the validated risk and needs assessment conducted by the
       department and contained in the presentence report.

Tenn. Code Ann. § 40-35-210(b).

       The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
                                            -6-
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. This standard of review
also applies to “questions related to probation or any other alternative sentence.” State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

       Under the revised Tennessee sentencing statutes, 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 Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “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[.]” Tenn. Code Ann. § 40-35-102(6).

       A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant
is not, however, automatically entitled to probation as a matter of law. The burden is
upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-
303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will ‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances
surrounding the offense, the defendant’s criminal record, the defendant’s social history
and present condition, the need for deterrence, and the best interest of the defendant and
the public. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation
would unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d
558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.

      In determining if incarceration is appropriate in a given case, 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;




                                           -7-
       (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).             Furthermore, the defendant’s potential for
rehabilitation or lack thereof should be examined when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

        The trial court noted that the 59-year-old Defendant had a criminal record
consisting of six prior felony and twenty-two prior misdemeanor convictions, beginning
at the age of nineteen. The court observed that the Defendant’s criminal history began
with drug convictions that progressed to misdemeanor theft that progressed to felony
theft that progressed to aggravated burglary. The court determined that the Defendant
used his criminal conduct as a means to further support himself because “he was tired of
the hard construction work that he was doing[.]” The court found that the interest of
society in being protected from future criminal conduct by the Defendant was great based
upon his previous criminal history. The court observed that the Defendant’s criminal
behavior also included his “history of substance abuse . . . knowing that it is illegal.” The
court recalled that the Defendant had not previously been in a treatment program
involving release in the community but did have an unsuccessful attempt to complete the
Transformation Project program.

       In looking at mitigating factors, the court found that the Defendant’s conduct did
not cause or threaten serious bodily injury but did not give the factor much weight. The
court found that the Defendant tried to help authorities in uncovering offenses committed
by other people and weighed that as a mitigating factor in the Defendant’s favor.
However, the court found that the Defendant did not help authorities in recovering the
property stolen in his crimes. The court credited as mitigation that the Defendant had
displayed some acceptance of responsibility and exhibited “model behavior” while in
custody. The court noted that the Defendant was a veteran with an honorable discharge.

       In looking at enhancing factors, the court placed great weight on the Defendant’s
previous history of criminal convictions and criminal behavior. The court found that the
Defendant was a leader in the commission of the offenses. Although not giving it much
weight, the court found that the amount of damage to property sustained by the victim
was “more than should have been inflicted on the property simply by removing the
appliances.” The court found that the Defendant failed to comply with the conditions of a

                                            -8-
sentence involving release in the community in that he had a history of probation and
parole violations and that he committed the present offenses while released on parole.

       The court determined that the Defendant’s actions caused significant harm to the
community and was something the Defendant did not fully appreciate. The court found
that the crimes “were the result of planning” and “not the product of impulsivity.” The
court believed that the Defendant was aware that his criminal conduct would cause harm,
but “he thought that it would be mitigated by insurance” and showed a “callous
indifference to the victims and the loss that had been caused.” The court questioned the
Defendant’s expression of remorse, finding that “on balance the remorse was more
inward focused than outward focused.” The court observed that leniency had been
granted to the Defendant by virtue of a plea deal to less time than “would be
appropriate.”

       The court expressed a need to avoid depreciating the seriousness of the offenses,
not because of the egregiousness of the offenses, but because of the repeated criminal
conduct and damage caused to the victims. The court lastly noted that the Defendant’s
behavior was intentional and motivated by the desire for profit or gain and therefore that
there was the need to provide an effective deterrent to others who would commit similar
offenses. The court summarized that in reaching its sentence it placed great weight on
the nature and circumstances of the offenses and the Defendant’s prior criminal history.

        The record shows that the trial court thoroughly considered and weighed the
principles of sentencing and all the evidence before it, including the letters from the
Hamilton County Sheriff’s Office and Hamilton County Jail staff and testimonies of
David McNabb from the Teen Challenge program and Joel Davenport from the
Transformation Project. The trial court’s imposition of a sentence of confinement is
entitled to a presumption of correctness and is affirmed.

                                    CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the trial court’s
imposition of a sentence in confinement.




                                            ____________________________________
                                            ALAN E. GLENN, JUDGE
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