                                                                                      03/02/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                              October 10, 2017 Session

                  STATE OF TENNESSEE v. SIDNEY B. RAY

                 Appeal from the Criminal Court for Knox County
                      No. 108994 Bobby R. McGee, Judge
                    ___________________________________

                          No. E2017-00228-CCA-R3-CD
                      ___________________________________

Pursuant to a plea agreement, the Defendant, Sidney B. Ray, entered a guilty plea to ten
felonies and one misdemeanor and received an effective sentence of fourteen years, with
the manner of service to be determined by the trial court. Following a sentencing
hearing, the trial court denied the Defendant’s request for an alternative sentence and
ordered his sentence to be served in confinement. In this appeal, the Defendant contends
that the trial court erred in determining the manner of service of his sentence. Upon
review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Forrest L. Wallace, Knoxville, Tennessee, for the Defendant, Sidney Brian Ray.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Nate Ogle, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                      OPINION

       Between April 19 and May 25, 2016, the Defendant engaged in a crime spree
involving the following offenses: aggravated burglary by entering Jennifer Ray Gregg’s
residence and taking property valued over $20,000 (count one); theft by entering his
parents’ residence and taking property valued over $11,000 (count two); theft by having
his father pawn a previously rented Stihl leaf blower and Stihl chainsaw (count three);
burglary of a vehicle by taking Janice Edwards’s wallet while she was pumping gas
(count four); theft by pawning to Payday Express Pawn $230 worth of items purchased
on a closed bank account (count five); forgery by writing his father’s name on a check
from a closed bank account to purchase a ring, valued at $4,895, from Rick Terry Jewelry
Design (count six); theft by taking Christine Cotton’s purse, valued at $690, from her
shopping cart at Kroger (count seven); identity theft by using Cotton’s credit cards to
make purchases, valued at $773.09, at various locations (count eight); and evading arrest
and reckless endangerment by refusing to comply with an officer’s command to exit his
car and fleeing at high speed through a crowded parking lot (counts nine and ten). Count
11 was a misdemeanor, for which the State did not offer any supporting facts.

       In his December 30, 2016 Sentencing Memorandum, the Defendant requested
probation “with any additional conditions the Court[ ] deems necessary for [him] to be
supervised in the community.” Further, the Defendant asserted that “a sentence on
probation coupled with a halfway house and continued treatment, would provide the least
severe measure necessary to comport with the Sentencing Act.” No mitigating or
enhancement factors were identified by Defendant’s counsel or the State.

       A sentencing hearing was conducted on January 20, 2017, at which time the State
introduced a presentence investigation report (“presentence report”), a report from the
Board of Probation and Parole regarding the Defendant’s suitability for Enhanced
Probation with Conditions (“Enhanced Report”), and a Community Alternatives to Prison
Program (“CAPP”) Report. Significantly, all of the alternative sentencing agencies had
declined to accept the Defendant as an appropriate candidate for their programs. The
presentence report showed that the Defendant had a criminal history consisting of
multiple thefts, forgery, multiple assaults, and reckless driving. He had been previously
placed on probation which was twice revoked. The Defendant had also previously
entered two different drug treatment programs and failed to complete them. Finally, the
Defendant completed a local drug court program.

       Cynthia Turner Ray, the Defendant’s mother, testified that the Defendant began to
use marijuana in the sixth grade and progressed to OxyContin and codeine. She wanted
to have social contact with the Defendant but did not want him in her home. She
confirmed that the Defendant was receiving treatment for Attention Deficit Disorder
(“ADD”) and depression in jail. However, she did not think prison programs were very
helpful to drug addicts because they were too short and did not provide addicts the help
they needed. She said that an outpatient or inpatient program would be more beneficial
for the Defendant to integrate back into society. Ray acknowledged that the Defendant’s
prior probation had been revoked. She was not aware of the ten-month substance abuse
program in which he participated while in prison or that he failed to complete some
treatment programs. She also acknowledged that the Defendant had relapsed after
receiving drug treatment.



                                          -2-
        The State recognized that, since June, the Defendant had completed the Intensive
Treatment Program (“ITP”) provided by the sheriff’s office, and the ITP completion
certificate was introduced as exhibit 4. Defense counsel argued that the Defendant
committed these crimes over the course of sixty days due to addiction, debt, depression,
and anxiety. Additionally, defense counsel noted that since the Defendant was receiving
medication at the detention facility, his mental health issues had “sort of righted.”
Defense counsel acknowledged that the Defendant’s probation had been revoked
previously but nevertheless requested the court to sentence the Defendant to a year of
split confinement or to allow him to stay in custody and transfer to a halfway house at a
later time.

       The State argued against probation or split confinement due to the nature and
circumstances of the offenses and the Defendant’s extensive criminal history. At the
conclusion of the hearing and following the arguments of counsel, the trial court imposed
a sentence of confinement. The Defendant then filed a timely appeal.

                                          ANALYSIS

       On appeal, the Defendant argues that the trial court abused its discretion in
denying his request for probation or alternative sentencing. He asserts that the trial
court’s imposition of a sentence of incarceration was both excessive and inconsistent with
the purposes of sentencing. Specifically, he contends that (1) the trial court misapplied
enhancement factor one by failing to address its merits when sentencing the Defendant;
(2) the trial court failed to apply mitigating factor thirteen by not giving weight to the
Defendant’s acceptance of responsibility, his mother’s continued support, his efforts at
rehabilitation, and his allocution statement; and (3) the trial court failed to impose a
community corrections sentence under the special needs exception. The State responds,
and we agree, that the trial court properly denied probation or alternative sentence.

        “[T]he 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 questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). 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 sections 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
                                          -3-
the defendant wishes to make in the defendant’s own behalf about sentencing. T.C.A. §
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). The 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).

       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. T.C.A. § 40-35-303(a). When considering probation,
the 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.” State v. Sihapanya, 516 S.W.3d 473, 476
(Tenn. 2014).

      Finally, in determining whether to deny alternative sentencing and impose a
sentence of total confinement, the trial court must consider if:

       (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).

      In denying probation and imposing confinement, the trial court reasoned as
follows:




                                            -4-
       All right. All right. These are difficult cases. The Court has
reviewed the Presentence Investigation. It does find the defendant to be a
high risk for probation, for release into the community.
       I’ve reviewed the Enhanced Probation report. They find that he’s
not appropriate for their program. And I’ve reviewed the CAPP Report.
They also find that he’s not appropriate for their program. All three reports
are based on, actually, many of the same factors.
       He has an extensive criminal history. He’s been given multiple
opportunities to succeed on probation, on community release. He, so far,
has always relapsed. He has -- I believe he has already served time in
prison; is that right?
...

       So he’s been to prison; he’s been confronted with the reality of
going to prison. When he got out, he still went right back to the drugs.
        I agree with his mother, 90 days is not enough time to be cured from
drug addiction. This Court has attended conferences and heard experts
medical and clinical experts tell us that -- to be -- to be, what you put in any
sense, called, cured – to be cured from an addiction, a hard-core addiction
to opiates and opioids, it is a process that requires something like five
years. You know, 90 days is not going to do it. Three months is not going
to do it.
       And what that means is, that the programs we do have and can offer
are often simply not going to cure the problem for the hard-core opiate and
opioid addict. There’s some people and some addictions that do respond to
shorter periods of time.
       What Mr. Ray has demonstrated repeatedly that he will--given his
freedom, he will start – go back to the bad decisions. He’ll find the drugs
and then we will have a trail of victims again.
       Now, this Court does have a policy, if any of our probation agencies
indicate to the Court that they find that there’s a reasonable probability that
he can be successful on probation, then I will make a placement, even
though, many times, over strenuous objection by the State.
      But concomitantly, when all three agencies are telling me that he’s
simply not able to be trusted, then the Court has to -- has to face its own

                                     -5-
       responsibility to the public. There are many – in Mr. Ray’s record, there
       are many victims, and this Court has to be concerned about the next victim.
              This is not a question about whether Mr. Ray is a good person or
       not. He seems to be quite sincere and I believe he means every word he
       said, but the Court has to go by the evidence. And the evidence is, he
       cannot straighten up. He cannot get away from the drugs.
              And at this point, the Court would have to find that if would be
       irresponsible to place Mr. Ray in any -- on any program back out into the
       community---release to the community. This Court takes no pleasure in
       denying anyone probation, but in this case, the circumstances are
       compelling.
             And, accordingly, the Court does deny probation and does sentence
       Mr. Ray to serve a total effective sentence of 14 years in the custody of the
       Tennessee Department of Corrections.

       Although the Defendant correctly observes that the trial court did not explicitly
reference any of the enhancement or mitigating factors, the record shows that the trial
court properly considered the sentencing principles and relevant facts and circumstances.
The Defendant’s “concern” that the trial court improperly considered his pending charges
when ordering confinement is simply not borne out by the record. The record also belies
the Defendant’s claim that the trial court failed to consider his “remorsefulness for
committing these crimes, his ready admission of guilt, his attempts to assist law
enforcement, rehabilitation following commission of these crimes, and his accepting
responsibility for his actions.” The trial court properly considered the Defendant’s
allocution statement and acceptance of responsibility in conjunction with the Defendant’s
history of offenses, probation, and treatment. Because the record clearly shows that the
Defendant had a long history of criminal conduct and measures less restrictive than
confinement had frequently been applied unsuccessfully to him, the trial court properly
denied the Defendant’s request for probation.

       Next, the Defendant contends that the trial court erred by denying his request for
some other alternative sentence. He specifically takes issue with the trial court’s failure
to explicitly mention in its ruling his application for community corrections or his request
to be considered under the special needs exception.1 To be clear, the extent of the
       1
          A defendant may qualify for community corrections based upon the special needs provision
found at Tennessee Code Annotated section 40-36-106(c), which provides, in pertinent part:

               Felony offenders not otherwise eligible under subsection (a), and who would be
       usually considered unfit for probation due to histories of chronic alcohol or drug abuse,
                                                 -6-
Defendant’s request for an alternative sentence was a single sentence in his memorandum
which did not explicitly request any relief under the Community Corrections Act.
Nevertheless, our review of the record supports the trial court’s denial of community
corrections. As an initial matter, the Defendant’s convictions for reckless endangerment
and aggravated burglary are crimes against a person, and he is therefore statutorily
ineligible for community corrections. T.C.A § 40-36-106(a)(1)(B)(2006). The remaining
property related convictions do not foreclose the Defendant from consideration for
community corrections. State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
Although the record established that the Defendant struggled with a history of chronic
drug abuse that reasonably related to or contributed to his criminal conduct, it does not
establish that his drug abuse was treatable in the community rather than in a correctional
institution.2 The Defendant had been given multiple opportunities to address his
addiction, all of which failed. Because none of the programs available in the community
to treat the Defendant recommended him for enhanced probation, the trial court
determined, and we agree, that he was not an appropriate candidate for release on
community corrections under the special needs exception. Accordingly, the record
supports the trial court’s imposition of a sentence of confinement, and the Defendant is
not entitled to relief.

                                           CONCLUSION

       Based on the aforementioned authorities and reasoning, the judgments of the trial
court are affirmed.


                                                 ____________________________________
                                                 CAMILLE R. MCMULLEN, JUDGE




        or mental health problems, but whose special needs are treatable and could be served best
        in the community rather than in a correctional institution, may be considered eligible for
        punishment in the community under this chapter.
        2
          Under Boston, the trial court was required to determine whether: (1) the offender has a history
of chronic alcohol, drug abuse, or mental health problems, (2) these factors were reasonably related to and
contributed to the offender’s criminal conduct, (3) the identifiable special need (or needs) are treatable,
and (4) the treatment of the special need could be served best in the community rather than in a
correctional institution. 938 S.W.2d at 439.
                                                   -7-
