        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 12, 2014

           STATE OF TENNESSEE v. SKYLAR MATTHEW GANT

                   Appeal from the Circuit Court for Bedford County
                   No. 17352, 17574    Forest A. Durard, Jr., Judge


                No. M2014-00500-CCA-R3-CD - Filed January 13, 2015


The Defendant-Appellant, Skylar Matthew Gant, entered guilty pleas to two counts of the
sale of .5 grams or more of crack cocaine, two counts of the delivery of .5 grams or more of
crack cocaine, and one count of failure to appear, with the trial court to determine the length
and manner of service of the sentences. Following a sentencing hearing, the trial court
merged the alternative counts of the sale and delivery of crack cocaine and imposed two
concurrent twelve-year sentences for the drug offenses. For the felony failure to appear, the
court imposed a four-year sentence to be served consecutively to the twelve-year sentences,
for a total effective sentence of sixteen years in the Tennessee Department of Correction.
On appeal, the Defendant argues that the trial court abused its discretion in denying him an
alternative sentence. Upon review, we affirm the judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Donna Orr Hargrove, District Public Defender; Andrew Jackson Dearing, III (on appeal) and
Michael J. Collins (at trial), Assistant Public Defenders, Shelbyville, Tennessee, for the
Defendant-Appellant, Skylar Matthew Gant.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Robert Carter, District Attorney General; and Michael Randles and Richard Cawley,
Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                         OPINION

       The Defendant-Appellant, Skylar Matthew Gant, was indicted in case number 17352
for two counts of the sale of .5 grams or more of crack cocaine and two counts of the delivery
of .5 grams or more of crack cocaine, Class B felonies. See T.C.A. § 39-17-417. He was
subsequently indicted in case number 17574 for one count of failure to appear, a Class E
felony. See id. § 39-16-609. The Defendant entered open guilty pleas to these offenses as
charged.

       Plea Submission Hearings. At the October 22, 2012 plea submission hearing, the
State summarized the facts supporting the guilty pleas to the drug offenses in case number
17352:

            Count 1 and 2 [for the sale and delivery of .5 grams or more of crack
      cocaine] occurred on April 23rd, 2008. There was a confidential informant
      [CI] working under the control and direction of the Drug Task Force, who
      placed a recorded and monitored telephone call to the defendant about
      purchasing crack cocaine in the amount of $400. The defendant agreed to that.

              The confidential informant was searched, and that met with negative
      results, was provided a recorder and the funds with which to make the
      purchase. Then went to the defendant’s mother’s residence here in Bedford
      County, under the observation of the task force agents. The defendant was
      actually observed coming outside of the residence, greeting the confidential
      informant. They both then went back inside. The transaction occurred. The
      defendant directed the confidential informant to actually hand the money to a
      third party black male and the confidential informant did that. The defendant
      then handed back the drugs. The confidential informant then left, met back up
      with the task force agents, handed the drugs over to the agents. They were sent
      to the lab, and it weighed 10.1 grams.

             Counts 3 and 4 [for the sale and delivery of .5 grams or more of crack
      cocaine] occurred on April 29, 2008, and, again, was a controlled buy. There
      was a recorded telephone call about discussing the purchase of crack cocaine.
      The agreement was made to do that. The confidential informant was searched,
      and that met with negative results.

              It was supposed to be a $300 buy, so the confidential informant was
      provided with money and a recording device. The confidential informant went
      to the defendant’s residence, entered the residence. This was a hand-to-hand
      buy. The confidential informant handed the money to the defendant, and the
      defendant hand[ed] back the drugs. However, it wound up being a little bit
      less than $300. It was $245.



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              The CI then left and met back up with task force agents, handed over
       the drugs which were purchased, and $55, which was not used in the
       transaction. Was searched again. That met with negative results. The dope
       was sent to the lab, and it weighed 4.8 grams.

       The trial court accepted the Defendant’s guilty pleas and set the matter for a
sentencing hearing on December 17, 2012. Thereafter, the Defendant failed to appear at the
hearing, which resulted in his indictment in case number 17574. He was ultimately
apprehended about ten months later, in October 2013. At the December 16, 2013 plea
submission hearing, the court accepted the Defendant’s guilty plea for felony failure to
appear.

       Sentencing Hearing. At the February 20, 2014 sentencing hearing, the trial court
merged the counts of sale and delivery of crack cocaine into two convictions for the separate
transactions occurring in April 2008. The Defendant’s original and updated presentence
reports were admitted into evidence without objection. The reports reflected that the
Defendant had a history of juvenile and adult convictions in Bedford County, including a
number of probation revocations. The State called one witness, and the Defendant did not
present any proof.

        Director Timothy Lane of the 17th Judicial District Drug Task Force testified that he
had held his current position for approximately nineteen years. He characterized the crack
cocaine problem in his particular district as “basically an epidemic” and “one of those drugs
that has always been in the top two.” According to Director Lane, the “serious problems”
and chronic addictions were caused by people who were willing to sell the drug. He opined
that these individuals should be held accountable with incarceration or “they are going to go
right back out and do it again.” In his experience, many dealers were involved in a
“revolving cycle” in which they were originally sentenced to incarceration, were released into
the community within four or five months after completing boot camp, and then returned to
selling crack cocaine. Director Lane stated that “the boot camp program ha[d] a very high
recidivism rate.”

       In reviewing the presentence reports, the trial court noted that the Defendant’s prior
record began with an assault conviction at age twelve in May 2000 and “just ke[pt] getting
worse and worse.” The court counted ten separate juvenile offenses and “violations of
various types of probation[.]” The court found that the Defendant had been unsuccessful in
every type of community release program since he was a juvenile. As an adult, the court
noted that the Defendant had multiple drug offenses. Accordingly, the court concluded that
the Defendant had, “on each occasion, failed miserably at his attempts to be released in the
community.”

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        The trial court found four applicable enhancement factors and no mitigating factors.
It applied enhancement factor (1), that the Defendant had a history of criminal convictions
or criminal behavior, in addition to that necessary to establish his range; factor (8), that the
Defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community; factor (13), that the Defendant committed his drug
offenses while released on probation, and he failed to appear while on parole; and factor (16),
that the Defendant committed the juvenile offense of theft of property valued at $1,000 or
more, which would constitute a felony if committed by an adult. See T.C.A. § 40-35-114(1),
(8), (13), (16).

       Regarding the Class B felony drug offenses, the trial court sentenced the Defendant
as a Range I, standard offender to twelve years’ imprisonment for each conviction. For the
Class E felony failure to appear, the court sentenced the Defendant as a Range II, multiple
offender to four years because he had three prior drug convictions at the time of this offense.
Therefore, the Defendant received the maximum sentences in each range. See id. §§
40-35-105, -106, -112(a)(2), (b)(5).

        In determining whether the sentences would be served concurrently or consecutively,
the trial court found the Defendant to be “an offender whose criminal activity is extensive.”
See id. § 40-35-115(b)(2). While noting that the Defendant only had misdemeanors prior to
his nine-year sentence for his first drug conviction, the court stated that the Defendant had
“graduated from there quite a bit in a short period[.]” The court also found that the
Defendant had “sentences that weren’t fully served,” and “[h]e committed another felony
while out on parole or other release program.” The court imposed concurrent twelve-year
terms for the two drug offenses because it did not “feel quite enough to be on the consecutive
path[.]” Regarding the failure to appear, the court noted that “there is no issue . . . as far as
whether it’s going to be consecutive or concurrent because it will be consecutive.” See id.
§ 39-16-609(f). The sentences in this case were ordered to be served consecutively to the
Defendant’s prior nine-year sentence in a separate drug case.

                                         ANALYSIS

       On appeal, the Defendant argues that the trial court erred in denying him an alternative
sentence. Specifically, he argues that he is entitled to probation because he received twelve-
year sentences for his Class B felony convictions, a four-year sentence for his Class E felony
conviction, and because he does not fall within the parameters of Tennessee Code Annotated
section 40-35-102(5). He further contends that the circumstances of the offenses did not
warrant the denial of a sentence of probation and that there was no evidence showing that a
sentence of confinement would deter others in the jurisdiction from committing similar
criminal acts. Finally, he asserts that probation would be in the best interest of the defendant

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and the public because he would be able to work and support himself rather than imposing
expenses on the public. The State responds that the court properly exercised its discretion
in ordering the Defendant to serve his sentence in confinement. Upon review, we agree with
the State.

        We begin our analysis by noting that the Defendant was not eligible for probation for
his Class B felony convictions because he received twelve-year sentences for those offenses.
He was eligible, however, for probation for his Class E felony conviction because the
sentence actually imposed was ten years or less. See T.C.A. § 40-35-303(a). Nevertheless,
an eligible defendant “is not automatically entitled to probation as a matter of law.” Id. § 40-
35-303(b), Sentencing Comm’n Cmts. Moreover, the Defendant was not considered a
favorable candidate for alternative sentencing in his failure to appear conviction because he
was sentenced as a multiple offender. See id. § 40-35-102(6).

       Pursuant to the 2005 amendments to the Sentencing Act, a trial court must consider
the following when determining a defendant’s specific 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.

Id. § 40-35-210(b)(1)-(7). In addition, “[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.” Id. § 40-35-103(5). A court must impose a
sentence “no greater than that deserved for the offense committed” and “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Id. §§
40-35-103(2), (4).

      Because of the broad discretion given to trial courts by the 2005 amendments to the
Sentencing Act, “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Therefore, this court reviews

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a trial court’s sentencing determinations under “an abuse of discretion standard of review,
granting a presumption of reasonableness to within-range sentencing decisions that reflect
a proper application of the purposes and principles of our Sentencing Act.” Id. at 707. In
addition, this standard of review applies to a trial court’s decision regarding “probation or
any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A
court abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s]
a decision which is against logic or reasoning that cause[s] an injustice to the party
complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997); see also State v. Kyto
Sihapanya, ___ S.W.3d ___, No. W2012-00716-SC-R11-CD, 2014 WL 2466054, at *2
(Tenn. Apr. 30, 2014). The defendant has the burden of showing the impropriety of the
sentence on appeal. T.C.A. § 40-35-401(d), Sentencing Comm’n Cmts.

        Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated
section 40-35-102(6)(A) states that a defendant who does not require confinement under
subsection (5) 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[.]” However, a trial court “shall consider,
but is not bound by, the advisory sentencing guideline” in section 40-35-102(6)(A). Id. § 40-
35-102(6)(D). In determining whether to deny alternative sentencing and impose a sentence
of total confinement, 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[.]

Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Tennessee Code Annotated section 40-35-102(5) gives courts guidance regarding the types
of defendants who should be required to serve their sentences in confinement:

       In recognition that state prison capacities and the funds to build and maintain
       them are limited, convicted felons committing the most severe offenses,
       possessing criminal histories evincing a clear disregard for the laws and morals



                                             -6-
       of society and evincing failure of past efforts at rehabilitation shall be given
       first priority regarding sentencing involving incarceration[.]

       We note that a trial court’s determination of whether the defendant is entitled to an
alternative sentence and whether the defendant is a suitable candidate for full probation are
different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996). “A defendant’s sentence is based on ‘the nature of the offense and
the totality of the circumstances in which it was committed, including the defendant’s
background.’” State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006) (quoting Ashby, 823
S.W.2d at 168). Following the 2005 amendments to the Sentencing Act, a defendant is no
longer entitled to a presumption that he or she is a favorable candidate for alternative
sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

        Although the trial court shall automatically consider probation as a sentencing
alternative for eligible defendants, the defendant bears the burden of proving his or her
suitability for probation. Id. § 40-35-303(b). The defendant must demonstrate that probation
would “subserve the ends of justice and the best interest of both the public and the
defendant.” Carter, 254 S.W.3d at 347 (citations omitted). When considering probation, a
trial court should consider the nature and circumstances of the offense, the defendant’s
criminal record, the defendant’s background and social history, the defendant’s present
condition, including physical and mental condition, the deterrent effect on the defendant, and
the best interests of the defendant and the public. State v. Kendrick, 10 S.W.3d 650, 656
(Tenn. Crim. App. 1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). “[A]
trial court’s decision to grant or deny probation will not be invalidated unless the trial court
wholly departed from the relevant statutory considerations in reaching its determination.”
Sihapanya, 2014 WL 2466054, at *3.

        The Defendant also argues that the trial court improperly denied his request for a
community corrections sentence. He contends on appeal that he is eligible for community
corrections because he meets all the criteria, his offenses were not violent, and he would be
better suited for job training and rehabilitation.

       The purpose of the Community Corrections Act of 1985 was to “[e]stablish a policy
within the state to punish selected, nonviolent felony offenders in front-end community based
alternatives to incarceration, thereby reserving secure confinement facilities for violent
felony offenders[.]” T.C.A. § 40-36-103(1). Eligible offenders under the Community
Corrections Act include:

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

                                              -7-
       (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;
       (E) Persons who do not demonstrate a present or past pattern of behavior
       indicating violence; and
       (F) Persons who do not demonstrate a pattern of committing violent offenses.

Id. § 40-36-106(a)(1)(A)-(F). Simply because an offender meets the minimum requirements
under the Community Corrections Act “does not mean that he is entitled to be sentenced
under the Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim.
App. 1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987)). Instead,
the Act’s criteria “shall be interpreted as minimum state standards, guiding the determination
of eligibility of offenders under this chapter.” T.C.A. § 40-36-106(d).

        Based on the record, we cannot conclude that the trial court abused its discretion in
denying alternative sentencing. As an initial matter, the Defendant is not eligible for
community corrections because his probation had been violated at the time of consideration.
See id., 40-36-106(a)(2). Additionally, the court imposed a sentence of confinement after
determining that the Defendant had a long history of criminal conduct and that measures less
restrictive than confinement had frequently or recently been applied unsuccessfully to him.
See id. § 40-35-103(1)(A), (C). The presentence reports reflects that, as a juvenile offender,
the Defendant violated his probation at least five times. In his first felony drug conviction
as an adult, the Defendant was sentenced to nine years in the Department of Correction in
June 2007 and then released on probation in December 2007 after completing the boot camp
program. The Defendant then committed his second and third felony drug offenses in the
instant case in April 2008, and his probation was revoked in May 2008. Specifically, he was
convicted for selling 4.8 grams and 10.1 grams of crack cocaine less than five months after
his release into the community. Thereafter, the Defendant was released on parole in March
2011 for his first drug conviction, and he failed to appear at his December 17, 2012
sentencing hearing while absconding from parole. He was not apprehended until ten months
later in October 2013, after he was incarcerated again and his parole was rescinded.
Therefore, the record supports the court’s finding that the Defendant had “failed miserably”
in every type of community release program since he was a juvenile. The Defendant’s prior
record and unsuccessful attempts at rehabilitation placed him within the parameters of
Tennessee Code Annotated section 40-35-102(5). Moreover, the State presented the
testimony of the district drug task force director, which established that crack cocaine use
was “basically an epidemic” in Bedford County and that measures other than confinement

                                             -8-
did not have a deterrent effect. The Defendant presented no proof at the hearing in support
of his suitability for probation.

       Because the record shows that the trial court carefully considered the evidence, the
enhancement and mitigating factors, and the purposes and principles of sentencing prior to
imposing a sentence of confinement, the Defendant has failed “to either establish an abuse
of discretion or otherwise overcome the presumption of reasonableness afforded” to the
court’s sentence in this case. Caudle, 388 S.W.3d at 280. Accordingly, we uphold his
effective sixteen-year sentence in the Tennessee Department of Correction.

                                    CONCLUSION

       Upon review, we affirm the judgments of the Bedford County Circuit Court.


                                                  ___________________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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