        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 25, 2014

         STATE OF TENNESSEE v. KRISTOPHER BLAKE KINCER

                  Appeal from the Circuit Court for Sullivan County
                         No. S59,866 R. Jerry Beck, Judge


                  No. E2013-01740-CCA-R3-CD - Filed June 2, 2014


The Defendant, Kristopher Blake Kincer, pleaded guilty as a Range I offender to theft of
property valued at $1000 or more but less than $10,000, a Class D felony. See T.C.A. § 39-
14-103 (Supp. 2013) (theft of property); 39-14-105(a)(3) (2010) (amended 2012) (grading
of theft). The plea agreement called for a two-year sentence, and the trial court ordered that
the sentence be served in confinement. On appeal, the Defendant contends that the trial court
erred in denying alternative sentencing. We reverse the judgment of the trial court and
remand the case for the trial court to consider whether the Defendant should be placed on
community corrections.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant District
Public Defender, for the appellant, Kristopher Blake Kincer.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Barry P. Staubus, District Attorney General; and James F. Goodwin, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The Defendant’s conviction relates to the July 2011 theft of three wedding rings
valued at $3900 from a home. He sold one of the rings at a jewelry store and received $250.
After the victim reported the theft, the police discovered that the Defendant was the person
who sold the ring. The Defendant accepted the State’s two-year plea offer.
       At the sentencing hearing, the presentence report was received as an exhibit. Relative
to the Defendant’s statement about the offense, the report stated that the Defendant said he
was camping with two people at a state park “staying messed up.” He said he bought a
diamond ring from one of them for $100 and sold it at the jewelry store. He said he did not
know it was stolen, did not know the victim, and did not know where the victim’s house was
located.1 He said he pleaded guilty because counsel advised him that he would be convicted
because he sold the ring and faced a sentence of up to four years.

       The presentence report reflected that the Defendant had convictions for misdemeanor
theft and driving with a revoked license, which occurred after the present offense. He had
previous convictions for driving with a suspended license, misdemeanor drug possession,
three counts of driving under the influence (DUI), and driving without having his driver’s
license in his possession. About three months after the present offense occurred, he was
placed on probation for the driving with a suspended license and drug possession
convictions, and his probation was revoked for failing to report to his probation officer,
receiving new criminal charges, not paying his fines and fees, and not completing an alcohol
and drug class, although he was reinstated to probation. He had a pending probation
violation related to one of the DUI convictions and an unspecified driving offense. He had
pending failure to appear charges related to the present case.

        The thirty-one-year-old Defendant dropped out of high school but passed the GED
exam. He reported childhood treatment for ADHD but had not sought treatment as an adult.
He began using alcohol at age fifteen and used it daily between ages nineteen and twenty-
one, although he reported his present use was limited to one or two beers monthly. He began
using marijuana on the weekends at age sixteen. He smoked cocaine at age twenty-four for
two to three months. He used Xanax daily from ages seventeen to nineteen. He used
Oxycontin from age twenty until twenty-seven. He used oxycodone from age twenty-three
until twenty-nine. He used heroin for “months” beginning at age twenty-seven. In June
2006, he underwent a twenty-eight-day alcohol and drug treatment program. He completed
a thirty-day drug and alcohol program in June 2012, followed by a three-month program at
a halfway house. He reported that he was currently attending Narcotics Anonymous
meetings.




        1
          Defense counsel stated at the sentencing hearing, “The crime . . . was taking some rings while he
was a guest at somebody’s house. He . . . didn’t break in or anything[.]” The Defendant did not address in
his testimony the discrepancy between counsel’s statement to the court and the Defendant’s statement to the
presentence report preparer, nor does the record resolve the discrepancy.

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      The Defendant’s past employment included positions as a restaurant dishwasher and
cook, construction laborer, custom wheel technician, and tire technician. He was
unemployed but doing unspecified odd jobs at the time the report was prepared.

       The Defendant testified that he lived with his ex-wife, with whom he had reconciled,
and their eleven- and seven-year-old children. He said he was employed at a tire store with
the possibility of becoming the owner. He made $1600 to $2000 per month. He said he had
twelve to thirteen years’ experience in tire sales. He said that he had previously enlisted in
the Army and completed basic training but that after he was involved in a “conflict,” the
Army received medical records showing he had ADHD and discharged him under less than
honorable circumstances.

       The Defendant acknowledged his substance abuse problems and said prescription
medications were his greatest problem. He said he had twice entered treatment programs
voluntarily. Regarding his most recent rehabilitation, he said he completed a thirty-day
program and stayed in an additional three-month program in a halfway house on the
recommendation of his counselors. He said he currently attended Narcotics Anonymous
meetings three to four times a week and went daily until he became employed. He said that
despite the driving with a revoked license offense that occurred after the present offense, he
did not drive any longer and that his wife drove him to and from work. He said he could pass
a drug test. He agreed the theft offense that occurred after the present offense involved his
taking scrap metal to sell in order to buy drugs.

        The Defendant testified that after he received the presentence report, he learned of the
outstanding probation violation warrant. He said that he had not had the opportunity to talk
to anyone in the court system about the warrant and that he had asked his probation officer
about it that morning but that the probation officer was “just kind of clueless over it.” He
said he had the same probation officer “the whole time.” He acknowledged he would have
to attend to the matter. Relative to his failure to appear in the present case, he said he was
in a rehabilitation program at the time. He agreed the State dismissed the charge after
learning he was in the program.

       The Defendant testified that he could follow the conditions of release if he received
an alternative sentence and that he was starting “a new chapter in his life.” He said his ex-
wife, a registered nurse, had recently started a new job and would be going out of town for
training soon. He said her aunt and her mother would provide his transportation to and from
work while his ex-wife was gone. He said he needed to care for their children while she was
gone.




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       On cross-examination, the Defendant agreed that he had been on probation six times.
He agreed he had violated his probation more than once. He agreed that one of the violations
related to not completing drug and alcohol classes and not reporting. He agreed he had been
charged with crimes occurring when he was on probation.

       The trial court noted the Defendant’s “lengthy . . . [h]ighly negative” prior record. It
noted that the Defendant had completed rehabilitation, “some of which failed.” The court
noted the Defendant’s “picking up new charges” and his pending probation violation warrant.
As mitigating proof, the court noted that the present offense did not involve violence and that
he had “turned over a new leaf.” The court found that “the unfavorable factors heavily
outweigh any favorable factor” and ordered that the Defendant serve his sentence in
confinement.

        On appeal, the Defendant contends that the trial court erred in denying him an
alternative sentence. The State counters that the Defendant has not overcome the
presumption of reasonableness afforded the trial court’s determination and that he is not
entitled to relief. We conclude that the trial court erred in failing to consider whether the
Defendant should receive a community corrections sentence.

       The length of a sentence “within the appropriate statutory range [is] to be reviewed
under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise,
380 S.W.3d 682, 708 (Tenn. 2012). Our supreme court has applied the abuse of discretion
standard with a presumption of reasonableness to “questions related to probation or any other
alternative sentences.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        The Defendant is eligible for probation because his sentence is ten years or less and
because his offense is not among those excluded from consideration for probation. See
T.C.A. § 40-35-303(a) (2010). The Defendant was likewise eligible for community
corrections. See id. § 40-36-106(a)(1)(A)-(F) (2010). Absent evidence to the contrary, he
should be considered a favorable candidate for alternative sentencing because he is a
standard offender convicted of a Class D felony. See T.C.A. § 40-35-102(6) (2010) (stating
that an eligible 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”); see also State v. Carter, 254
S.W.3d 335, 346 (Tenn. 2008). However, mere eligibility does not automatically entitle a
defendant to probation or community corrections. See State v. Fletcher, 805 S.W.2d 785,
787 (Tenn. Crim. App. 1991); State v. Beverly Dixon, No. W2004-00194-CCA-R3-CD, slip
op. at 10 (Tenn. Crim. App. June 30, 2005) (citing State v. Ball, 973 S.W.2d 288, 294 (Tenn.
Crim. App. 1998)).



                                              -4-
       Regarding probation, the burden is on the defendant to establish that he is suitable for
probation and “that probation [would] be in the best interest of the defendant and the public.”
State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001) (citing State v. Baker, 966
S.W.2d 429, 434 (Tenn. Crim. App. 1997)). Furthermore, the statutory provisions regarding
alternative sentences must be read together with the Sentencing Act as a whole. See
Fletcher, 805 S.W.2d at 787-88; State v. Wagner, 753 S.W.2d 145, 147 (Tenn. Crim. App.
1988).

       When determining if incarceration is appropriate, a trial court should 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[.]

T.C.A. § 40-35-103(1) (2010); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

       As the trial court noted, the Defendant has a lengthy history of criminal conduct, and
he has had the benefit of probation sentences in the past. The Defendant was found in a
revocation proceeding to have violated his probation in two cases. He had an outstanding
probation violation warrant from several years before the present offense. He committed
another theft offense after the present offense, although he attributed it to his drug problem.

       We note the approximate five-year gap between the Defendant’s offenses that appears
to correspond with his enrollment in the first treatment program. He was convicted of DUI
occurring in 2003. He was convicted of an unspecified traffic offense, driving with a
suspended license, and DUI in 2005. He was convicted of driving while his license was
suspended and misdemeanor drug possession occurring in June 2011. The present offense
occurred in July 2011. He was convicted of driving while his license was revoked occurring
in March 2012, before he entered his second treatment program. He completed a thirty-day
program in June 2013 and remained in a long-term program for an additional three months.
After he returned home, he continued to attend Narcotics Anonymous meetings regularly and
continued to do so at the time of the sentencing hearing in July 2013. He made efforts to
reconcile with his ex-wife and to parent and support his children. He obtained employment



                                              -5-
in a field in which he had several years’ experience. He testified that he had quit driving and
that his wife took him to and from work and to Narcotics Anonymous meetings.

        Affording the trial court the presumption of reasonableness and given the Defendant’s
prior criminal record and past lack of compliance with the rules of probation, we conclude
that the Defendant has not shown that the trial court abused its discretion in determining that
he was not a suitable candidate for another sentence of probation. We note, though, that
under the Tennessee Community Corrections Act, trial courts may sentence certain non-
violent felony offenders to community-based alternatives to incarceration. See T.C.A. § 40-
36-103(1) (2010); State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997) (stating
that “trial courts are in the best position to ascertain an offender’s amenability to a
community corrections program”). Relative to eligibility for community corrections,
Tennessee Code Annotated section 40-36-106 provides in pertinent part:

       (a)(1) An offender who meets all of the following minimum criteria shall be
       considered eligible for punishment in the community under the provisions of
       this chapter:

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

              (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.

The Defendant is an eligible offender for a community corrections sentence pursuant to
section 40-36-106(a).




                                              -6-
        We note the Defendant’s history of substance abuse was related to and contributed to
his criminal conduct. He has undertaken an extensive treatment regime, after which he
continued attending Narcotics Anonymous meetings regularly. He has made efforts to
improve himself by ceasing to drive illegally, obtaining employment, and supporting and
parenting his children. He expressed his desire to live a productive life. The record does not
reflect any adverse credibility determination relative to his testimony.

        We likewise note that the record does not reflect the trial court considered whether the
Defendant should be sentenced to community corrections. The Defendant was both eligible
for a community corrections sentence and the type of offender the Community Corrections
Act was designed to address. Despite his history of criminal convictions, he did not have a
history of violent offenses and was not convicted in this case of a violent offense. Because
of his criminal history, he was not a favorable candidate for probation, meaning that without
the option of community corrections he would receive a sentence of incarceration. We
conclude that the case must be remanded for the trial court to consider whether the Defendant
should serve his sentence on community corrections.

       In consideration of the foregoing and the record as a whole, the judgment of the trial
court is reversed. The case is remanded, and the trial court shall consider whether a
community corrections sentence is appropriate.


                                            ____________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




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