        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 15, 2010

               STATE OF TENNESSEE v. JAMIE W. STANFILL

             Direct Appeal from the Criminal Court for Sumner County
                     No. 2008-CR-598    Dee David Gay, Judge




               No. M2009-01902-CCA-R3-CD - Filed February 9, 2011


The Defendant, Jamie W. Stanfill, pled guilty to three counts of theft of property between
$10,000 and $60,000, Class C felonies; one count of theft of property between $1000 and
$10,000, a Class D felony; and five counts of burglary of a motor vehicle, Class E felonies.
The Defendant agreed to a ten-year sentence, with the trial court to determine the manner of
service of his sentence. After a hearing, the trial court ordered him to serve his sentence in
confinement. The Defendant appeals, contending the trial court improperly denied his
request for an alternative sentence. After a thorough review of the record and applicable law,
we affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J.C. M CL IN, JJ., joined.

David Collins (at trial), Nashville, Tennessee; and John Chadwick Long (on appeal),
Hendersonville, Tennessee, for the Appellant, Jamie W. Stanfill.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Clark B. Thornton, Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and C. Wayne Hyatt, Assistant District Attorney General, for the Appellee, State
of Tennessee.

                                         OPINION
                                          I. Facts

     During the Defendant’s plea submission hearing, the State set forth the following
summary of the factual basis for the Defendant’s guilty pleas:
       The facts of this case would show, according to an affidavit filed by Lisa
       House of the Sumner County Sheriff’s Department, on May 20th, 2008 the
       Sheriff’s Office took reports from several victims regarding Victoria Place and
       Somerset Downs subdivisions in Hendersonville. The vehicles had been
       burglarized and stolen from these neighborhoods.

       The victim Chelse Brown in Hendersonville reported that her 2003 Nissan 350
       was stolen, valued at over $10,000. Jay Tharp of Hendersonville reported his
       vehicle was broken into and a 9-millimeter Smith & Wesson handgun in a
       black holster valued at $550 was stolen. Victim Holli Fee at Somerset Dam
       reported her vehicle had been broken into and $80 cash was stolen. Victim
       Jaclyn Beasley reported her vehicle had been broken into and her purse and
       contents were stolen. The victim Frank Francis of Stafford Court in
       Hendersonville reported his vehicle was broken into through breaking a
       window and prescription medication was stolen.           Kristen Vance in
       Hendersonville reported her 2001 Chevrolet Tahoe was stolen, valued at over
       $10,000.

       On May 30th the [D]efendant was interviewed by Officer Tim Bailey and also
       Detective House interviewed him at the Police Department where he admitted
       to these thefts. All vehicles have been recovered and the [D]efendant assisted
       in the recovery of other property. The officer feels probable cause exists and
       therefore made the case and swore out the warrants against [the Defendant].

Based on this conduct, the Defendant pled guilty to three counts of theft of property valued
between $10,000 and $60,000; one count of theft of property valued between $1000 and
$10,000; and five counts of burglary of a motor vehicle. The Defendant agreed to a ten-year
sentence, with the trial court to determine the manner in which he would serve this sentence.

       The trial court held a sentencing hearing, where the following evidence was entered:
The State introduced a pre-sentence report, which indicated the Defendant was thirty-two
years old when he committed the crimes in this case and thirty-three at the time of
sentencing. According to the report, the Defendant’s mother and brother died when he was
three years old, and he grew up being “ridiculed,” “abused,” and “picked on” by peers and
members of his family. At sixteen, the Defendant began to use alcohol and he continued to
use on a weekly basis. He reported occasional use of cocaine and “zanes.” The report
included a notation that the Defendant was “suspected” of gang affiliation with the
“[B]loods.” The Defendant was expelled from high school in tenth grade but obtained his
G.E.D. in 2003. He had been diagnosed with major depression, anxiety, and post-traumatic

                                              2
stress disorder. The Defendant was, at the time of sentencing, married to his second wife,
and he had one son and two daughters. The Defendant reported holding various jobs
between 1998 and the sentencing hearing in this case. The Defendant was laid off from
Creative Wholesale in Smyrna, Tennessee, shortly before he committed the crimes in this
case. At the time of sentencing, he was working as a sub-contractor for Quality Floors of
Nashville.

        The presentence report indicated the Defendant had a lengthy criminal history.
Between the ages of eighteen and twenty-six, he committed at least twenty-five felony
offenses as well as a number misdemeanor offenses, including criminal impersonation,
resisting arrest, contributing to the delinquency of a minor, and several driving infractions.
His felony convictions include: two convictions for possession of less than .5 grams of a
Schedule II drug; ten convictions for burglary of a motor vehicle; five convictions for theft
of property between $1000 and $10,000; one conviction for assault; one conviction for theft
of property between $500 and $1000; three convictions for aggravated burglary; and two
convictions for theft of property up to $500. In addition to these convictions, the Defendant
had been arrested on various other charges, including criminal homicide and aggravated
assault, which were subsequently dismissed or retired. The report showed the Defendant has
violated sentences of alternative release on at least three occasions.

        The pre-sentence report includes a statement given by the Defendant of the events
leading up to the thefts and burglaries he committed in this case. He first apologized to the
victims and to his family. Next, he explained that being laid off from Creative Wholesale
left him with no money to buy food and diapers for his infant daughter. Having no one from
whom to borrow money, he decided to do “what [he] said [he] would never do again . . . take
something from another human being . . . .” Although he acknowledged his actions were not
“right,” he insisted he stole not for his “personal gain” but to feed his family. He emphasized
that, in the years immediately prior to the thefts in this case, he had attempted to lead a law-
abiding life and provide for his family. Finally, while the Defendant accepted responsibility
for his conduct and convictions, he urged the trial court to grant him a community corrections
sentence so that he could continue to provide for his family.

        Detective Lisa House of the Sumner County Sheriff’s office testified that in May 2009
she and another detective were assigned to investigate a series of car burglaries and thefts in
two subdivisions in Hendersonville and Goodlettsville. The Defendant’s name “came up”
in the course of their investigation, they contacted him, and he agreed to be interviewed.
During this interview, he admitted to the thefts. He admitted to stealing three vehicles, which
he told detectives he used to travel around his neighborhood. The detective testified that the
Defendant did not damage any of the vehicles he stole and that he was “very forthcoming”
in the interview. The Defendant assisted the detectives in recovering the vehicles he had

                                               3
stolen and disclosed to them that he was storing other stolen property from these criminal
incidents in his home.

        Jamie Lee Romines, who grew up with the Defendant, testified that he had known the
Defendant for seventeen years. He said that the Defendant, despite his criminal record,
should receive an alternative sentence in order to be able to provide for his family. He
testified that he believed the Defendant committed the crimes in this case only to provide for
his children.

       Terry Allison, owner of Quality Floors, testified that he employed the Defendant for
more than a year. He described the Defendant as “the best employee [he’d] ever had.”
Allison said the Defendant had earned his trust despite his criminal record. On cross-
examination, Allison testified that the Defendant, though he started earning only ten to eleven
dollars per hour, was presently earning $1000 per week. He said that part of the Defendant’s
job responsibility was to collect money from customers, and the Defendant had never “come
up a dollar short” in performing this duty.

        The Defendant testified, largely echoing the statement he gave to the officer preparing
his presentence report. He testified that his troubled childhood led him to lead a dangerous
lifestyle and that he reached a point where he did not care whether he lived or died. He
explained, however, that his attitude had changed after he married his wife and had two
children. He said he committed the thefts in this case only to provide for his family.

        On cross-examination, the Defendant said that, at the time he committed the crimes
in this case, several years had passed since he had been incarcerated and he had recently
finished serving a probationary sentence. He again emphasized that, though he attributed his
behavior to his financial distress, he did not mean to imply that stealing was “okay.” He
again solicited the court to grant him an alternative sentence, promising to do “everything [he
could] not to come in front of [the trial court again].”

        At the conclusion of the hearing, the trial court ordered the Defendant to serve ten
years in the Tennessee Department of Correction. It is from this judgment that the Defendant
now appeals.

                                         III. Analysis

        The Defendant contends the trial court improperly denied his request for an alternative
sentence because it did not take into account certain mitigating circumstances he argues
apply to his case. Specifically, he argues the trial court failed to take into account: mitigating
factor (1), that his conduct did not threaten serious bodily injury; mitigating factor (7), that

                                                4
a desire to provide necessities for his family motivated the Defendant’s criminal behavior;
mitigating factor (10) that the Defendant assisted the authorities in locating or recovering
property involved in the crime; and the “catch-all” mitigating factor (13), in that his employer
indicated the Defendant was a good employee whom he would be happy to employ upon his
release. See T.C.A. § 40-35-113(1), (7), (10), and (13) (2009).

       The State responds that the trial court properly denied alternative sentencing based
upon the factors Tennessee Code Annotated section 40-30-103 directs courts to consider in
determining whether confinement is necessary. The State argues that the lack of explicit
consideration of the mitigating factors cited by the Defendant in the trial court’s ruling does
not affect the soundness of the trial court’s judgment.

        When a defendant challenges the length, range, or manner of service of a sentence,
this Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d). As the Sentencing Commission Comments to this section note, the burden is now
on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,
Sentencing Comm’n Cmts. This means that if the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
1989 Sentencing Act, T.C.A. section 40-35-103 (2009), we may not disturb the sentence even
if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001).

        Due to the 2005 sentencing amendments, 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 T.C.A. § 40-35-102(6) (2009)). Instead, a defendant not within “the parameters
of subdivision (5) [of T.C.A. § 40-35-102], 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.” Id. (footnote
omitted). T.C.A. § 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note that a
trial court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider ”
them. T.C.A. § 40-35-102(6) (emphasis added).

       In conducting a de novo review of a sentence, we must consider: (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 Tennessee Code Annotated
sections 40-35-113 and -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

                                               5
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210(b) (2009); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). We
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(5) (2009).

       When sentencing the defendant to confinement, 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(A)-(C) (2009).

        If a defendant seeks probation, then that defendant bears the burden of “establishing
[his] suitability.” T.C.A. § 40-35-303(b) (2009). As the Sentencing Commission points out,
“even though probation must be automatically considered as a sentencing option for eligible
defendants, the defendant is not automatically entitled to probation as a matter of law.”
T.C.A. § 40-35-303 (2009), Sentencing Comm’n Cmts.

       The Tennessee Community Corrections Act was enacted in 1985. One of the purposes
of the Act was “to establish 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) (2006);
see State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). Under the Act, a court is authorized
to sentence an eligible defendant, as defined in Tennessee Code Annotated section
40-36-106, to “any appropriate community-based alternative to incarceration provided in
accordance with the terms of this chapter, and under such additional terms and conditions as
the court may prescribe, in lieu of incarceration in a state penal institution or local jail or
workhouse.” T.C.A. § 40-36-106(e)(1) (2006).

     A defendant must meet the following factors to be eligible to serve his sentence within
a community corrections program:



                                              6
       (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;

       (F) Persons who do not demonstrate a pattern of committing violent offenses
       ....

T.C.A. § 40-36-106(a)(1) (2006). A trial court retains discretion to deny community
corrections if it finds the sentencing principles to require confinement. State v. Kendrick, 10
S.W.3d 650, 656 (Tenn. Crim. App. 1999).

        In this case, the Defendant agreed to a ten-year sentence. At the conclusion of the
hearing to determine the manner of service of his sentence, the trial court first noted that it
had considered the evidence presented at the sentencing hearing, the principles of sentencing,
the nature and characteristics of the criminal conduct involved, the Defendant’s various
statements, the Defendant’s potential for rehabilitation, and the effect confinement would
have upon the Defendant’s dependants. Based on these considerations, the trial court found
that all of the section 40-35-103 factors indicated confinement was necessary. It found that
“confinement was necessary to protect society by restraining a defendant who has a long
history of criminal conduct” because the Defendant had committed well over twenty felonies
in five separate counties. See T.C.A. § 40-35-103(A). In finding that confinement was
necessary “to avoid depreciating the seriousness of the offense” or “particularly suited to
provide an effective deterrence to others likely to commit similar offenses,” the court
explained that the Defendant’s extensive record again required confinement insofar as it
would make his crimes seem without consequence were the court to grant alternative release:

       Now, how in the world are we going to provide an effective deterrent to
       anyone that does this and we don’t impose some punishment when that
       individual has not one, not two, not three, not four, not five, not 20, not 21, not
       22, [but] 31 felony convictions? There comes a point when you’ve got to
       protect citizens.

                                               7
See T.C.A. § 40-35-103(B). Based upon the Defendant’s three past failures to comply with
community corrections sentences, the trial court found that “measures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the defendant.” See
T.C.A. § 40-35-103(C).

        The trial court noted that, had the Defendant entered an open plea, it would have
imposed consecutive sentencing based upon the Defendant’s extensive criminal record,
which would have resulted in a sentence of well over thirty years. Based upon his relatively
reduced sentence, the trial court found that the sentence imposed was “no greater than that
deserved for the offense.” In conclusion, the trial court explained confinement was necessary
not only because the Defendant had an “incredible” criminal record, but also because the
Defendant believed and repeatedly stated during the sentencing hearing that his actions were
necessary. Stating that the Defendant was “a menace to society” and that “even by the words
of [his] own mouth,” the Defendant had learned nothing “about other people,” the trial court
denied alternative sentencing.

        The trial court acted within its discretion when it denied alternative sentencing. Its
findings with regard to the three factors set out in section 40-35-103 were sound. First, the
Defendant has at least twenty-five felony convictions and several misdemeanor convictions,
as well as admitted alcohol and illicit drug use throughout his teens and adulthood. Thus,
the record does not preponderate against the court’s finding that the Defendant’s long history
of criminal conduct required confinement in this case. The Defendant’s lengthy record as
well as his repeated avowals of having acted only for his family’s well-being similarly
supports the trial court’s finding that, in order to deter individuals in similarly trying financial
situations from committing like acts, confinement was necessary. Finally, because the record
establishes that the Defendant violated at least three community corrections sentences, the
record does not preponderate against the trial court’s finding that the confinement was
necessary because the Defendant had frequently failed to comply with measures less
restrictive than confinement.

        The trial court’s consideration of the factors listed above was alone sufficient to
support its denial of alternative sentencing. See T.C.A. § 40-35-103. However, the
Defendant argues the trial court should have given greater attention and weight to certain
mitigating factors he argues apply to his case. Though consideration of the statutory
mitigating factors was not necessary to determine the manner of service of the Defendant’s
sentence, the trial court took into account several of the circumstances the Defendant argues
support application of four mitigating factors. The trial court explicitly credited the
Defendant with desiring to provide for his family and with maintaining steady employment.
It explained, however, that the persistent nature of the Defendant’s criminal behavior as well
as his attempt to explain away his most recent behavior by citing his financial distress

                                                 8
required confinement:

              This is absolutely pitiful, 31 felony convictions, five different counties.
       And you know what is sad to me, I’ve got at least two witnesses that have
       come up here today, including the [D]efendant, who stated, quote, I did what
       every other man would do, unquote. That’s a sad commentary on society, and
       I grieve over that attitude for people to actually think that you can go out and
       rob and steal others to satisfy your own personal desires.

Thus, in rejecting a sentence of alternative release, the trial court took into account not only
the statutorily-mandated considerations, but also several of the mitigating circumstances the
Defendant complains were overlooked. As for the Defendant’s objection that the trial court
failed to explicitly state the weight it assigned these circumstances, because the trial court
was under no obligation to even consider them, its silence as to their weight was not error.

        The Defendant failed to carry his burden of proving his suitability for probation. See
40-35-303(b). As discussed above, the trial court made sound findings of fact in support of
its consideration of these factors, we presume that its determination that confinement was
appropriate is correct. See T.C.A. § 40-35-401(d). As such, the court properly denied all
forms of alternative sentencing. Kendrick, 10 S.W.3d at 656. Thus, we conclude that the
trial court did not err when it denied the Defendant an alternative sentence. The Defendant
is not entitled to relief.

                                       III. Conclusion

       After a thorough review of the record and applicable law, we conclude the trial court
properly denied alternative sentencing in this case. As such, we affirm the trial court’s
judgments.

                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




                                               9
