                                                                                         11/30/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs November 28, 2017

         STATE OF TENNESSEE v. MARSHALL SHAWN NELSON

                  Appeal from the Criminal Court for Knox County
                     No. 109036, 108292 G. Scott Green, Judge
                      ___________________________________

                           No. E2017-00338-CCA-R3-CD
                       ___________________________________

The Defendant, Marshall Shaw Nelson, pleaded guilty to aggravated assault with an
agreed sentence of six years with the trial court to determine the manner of service. After
a sentencing hearing, the trial court denied an alternative sentence and ordered the
sentence to be served in confinement. On appeal, the Defendant asserts that the trial
court erred when it denied him an alternative sentence. We affirm the trial court’s
judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, J., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Marshall Shawn Nelson.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Deborah H. Malone,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts

      A Knox County grand jury indicted the Defendant for aggravated assault,
domestic assault, and violation of an order of protection. By agreement of the parties, the
domestic assault and violation of an order of protection charges were dismissed and the
Defendant agreed to plead guilty as a Range I, Standard Offender, to aggravated assault,
a Class C felony, in exchange for a six-year sentence. At the Defendant’s guilty plea
submission hearing, the State provided the following factual basis to support the
acceptance of the plea:
      Knoxville Police Officer Dan Roark [ ] responded to a domestic
      disturbance call on December 22nd, 2015 at 3628 Sevierville Pike. What he
      found there was the victim, [ ] under obvious . . . excitement . . . . When he
      went to interview her, she had told Officer Roark that she had planned on
      getting on a bus and leaving [the Defendant]. That when [the Defendant]
      found this out he became angry. He grabbed her by the arms and yelled at
      her that she had to do what he said. He then shoved her down on the floor
      and onto the couch, at which point in time he grabbed her arm and dragged
      her across the carpet into the kitchen.

             Officer Roark was able to observe what appeared to be a carpet burn
      on the center of her back. Ms. Belinda Testerman who was a friend of [the
      victim]’s had stopped by the apartment at around eight p.m. While she was
      present she had heard [the Defendant] say that [the victim] had to do what
      he said. That his anger comes from the Lord, and that he had the right to
      control [the victim]. He also told Ms. Testerman he was afraid he was
      going to hurt [the victim].

             Ms. Testerman stated that [the Defendant] openly admitted that he
      has the right to slap [the victim]. [The victim] and her daughter were
      visibly shaken according to Officer Roark and afraid of [the Defendant].

             [The Defendant] at the time was on probation for assaulting [the
      victim], and one of the conditions of his probation was that he was to have
      absolutely no contact with her.

After reviewing the Defendant’s rights with him, the trial court accepted the Defendant’s
guilty plea to aggravated assault based upon the violation of the order of protection. The
trial court announced the agreed upon sentence and the sentencing hearing date for the
determination of the manner of service of the six-year sentence.

       At the sentencing hearing, the State submitted the presentence report for the trial
court’s consideration. The trial court granted the Defendant’s request to later file the
results of the assessment for community alternatives to prison program (“CAPP”). The
Defendant asked for an alternative sentence because he had been incarcerated for more
than a year, giving him time to think and make changes in his life. In the Defendant’s
allocution statement, he accepted responsibility for “everything” and apologized “to the
Court for doing the mistake.”

       In denying an alternative sentence, the trial court noted the Defendant’s criminal
history of three prior felony convictions and fifteen misdemeanor convictions and the fact
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that the Defendant was allowed to plead guilty as a standard offender when he likely
qualified as a multiple offender. The trial court then made the following findings:

       [The Defendant] was on probation, has been to the penitentiary already on
       other convictions in Texas. Was on probation for assaulting the same
       victim, had been ordered by an order of the general sessions court to stay
       away from the victim. He was enjoined and restrained as a condition.

              In spite of that admonition, in spite of that order, he went back
       around. Not only went back around the victim but assaulted her again in
       this case.

The trial court denied the Defendant’s request for an alternative sentence and ordered the
Defendant to serve his sentence in the Tennessee Department of Correction. It is from
this judgment that the Defendant appeals.

                                       II. Analysis

       On appeal, the Defendant contends the trial court erred when it denied him an
alternative sentence. The Defendant argues that, given that he had been in continuous
custody for more than a year preceding the sentencing hearing, had expressed remorse for
his conduct, and expressed a desire for rehabilitation, the trial court should have granted
some form of an alternative sentence. The State responds that the trial court properly
denied alternative sentencing because it did so in reliance on sentencing principles, the
Defendant was on probation at the time of the present offense, and the present offense
involved a physical assault against the same victim as the offense for which he was
serving a probation sentence. We agree with the State.

       The standard of review for questions related to probation or any other alternative
sentence is “‘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.’” State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). With
regard to alternative sentencing, Tennessee Code Annotated section 40-35-102(5) (2014)
provides as follows:

       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 of society, and evincing failure of past efforts at

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      rehabilitation shall be given first priority regarding sentencing involving
      incarceration.

A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a) (2014). A
defendant is not, however, automatically entitled to probation as a matter of law. The
burden is upon the defendant to show that he or she is a suitable candidate for probation.
T.C.A. § 40-35-303(b) (2014); 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 considering “the nature of the offense and the totality of the
circumstances . . . including a defendant’s background.” State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). 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;

      (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) (2014). 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.

       The record supports the trial court’s findings in this case. The trial court’s
decision to deny an alternative sentence was based upon the Defendant’s extensive
criminal record and the Defendant’s unsuccessful past attempt at completing an
alternative sentence. These factors are all well-supported by the evidence. The
presentence report shows numerous convictions and charges against the Defendant
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evidencing an extensive criminal record. The Defendant has demonstrated a history of
non-compliance with at least one alternative sentence and was serving a probation
sentence when he committed the present offense. The present offense also involves the
same victim from the offense for which he was serving the probation sentence.
Furthermore, the results of the CAPP assessment indicate that the Defendant was not
appropriate for placement and still posed a “continued threat to the safety of the
community as well as the victim.” While the Defendant was eligible for probation
because his sentence was less than ten years, he failed to carry his burden of proving
suitability for probation.

       The trial court considered the pertinent facts of this case and appropriate
sentencing principles and denied alternative sentencing based on the Defendant’s
criminal record, past failed attempts at less restrictive measures, and lack of potential for
rehabilitation. The Defendant has not established that the trial court abused its discretion
by denying his request for an alternative sentence. The Defendant is not entitled to relief.

                                      III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude the
trial court properly denied the Defendant an alternative sentence. As such, we affirm the
trial court’s judgment.


                                              ____________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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