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

            STATE OF TENNESSEE v. JACKIE WAYNE MILLER

                  Appeal from the Circuit Court for Marshall County
                      No. 12-CR-183       Robert Crigler, Judge




               No. M2013-01188-CCA-R3-CD - Filed February 28, 2014


The Defendant, Jackie Wayne Miller, pled guilty to initiation of the process of manufacturing
methamphetamine and possession of drug paraphernalia, with the trial court to determine the
length and manner of the sentences. The trial court subsequently ordered the Defendant to
serve an effective sentence of eight years and three months in the Tennessee Department of
Correction. The Defendant appeals, asserting that the trial court erred when it denied his
request for alternative sentencing. After a thorough review of the record and applicable law,
we affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and J EFFREY S. B IVINS, JJ., joined.

Michael J. Collins, Shelbyville, Tennessee, for the appellant, Jackie Wayne Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Robert Carter, District Attorney General; and Michael D. Randles, Assistant District
Attorney General for the appellee, State of Tennessee.

                                        OPINION
                                 I. Background and Facts

       A Marshall County grand jury indicted the Defendant for initiation of the process of
manufacturing methamphetamine and possession of drug paraphernalia. On February 20,
2013, the Defendant entered a plea of guilty to each of the indicted offenses. The trial court
sentenced the Defendant to an effective sentence of eight years and three months.
      At the guilty plea submission hearing, the State offered the following recitation of the
evidence in support of the trial court’s acceptance of the Defendant’s guilty plea:

       [This incident] occurred in the early morning hours of June 26, 2012, a little
       after midnight. The police department was called to a room at the Celebration
       Inn and then ultimately the Drug Task Force was called in. I think what had
       happened, a bondsman had gone to this room looking for the defendant and
       then they discovered what appeared to them to be meth related paraphernalia
       or a meth lab, so they called the police department. The police department
       concurred with what was being seen so they called in the Drug Task Force.

              David Henley had gone in the room but he had to use a breather. He
       used to work with the Lewisburg Police Department. He is a meth certified lab
       officer. It appeared to him to be the old school red phosphorous, Red P lab,
       as opposed to your more common one pot labs that we typically see.

               Brad Martin of the task force, he also went in and upon going in the
       room he located a number of items used in a meth manufacture. On the scene
       was a coffee filter with a large amount of white powder which appeared to be
       crushed up sudafedrine [sic]. There was a cup that had coffee filters in it with
       red material that bled through. That was suspected to be red phosphorous.
       There was a stove top portable burner on the sink. There were Mason jars with
       pantyhose and aluminum foil; a Pyrex dish; rubbing alcohol, and hydrogen
       peroxide; also Coleman fuel. There was two bottles that were found hanging
       that had tubing connected to them which appeared to be a rather sophisticated
       gasser.

              Then there was a bottle of muriatic acid; a bottle of sodium hydroxide.
       There were again more Mason jars. A bottle of acetone; more tubing; more
       coffee filters.

              There was a trash bag that was full of used items. I believe they found
       a box of sudafedrine [sic]. That was an empty box of sudafedrine [sic].

              The [D]efendant - - when one of the police officers got to the room, the
       [D]efendant admitted to him that this was his meth lab. There was another
       individual associated with that room and I think he said a similar thing. He
       said he had purchased a box of sudafedrine [sic] that was to be used to
       manufacture meth. And in fact the box they found matched the description of
       what this other individual provided.

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The Defendant agreed with the facts announced by the State and offered a plea of guilty as
to each charge, which was accepted by the trial court.

      At the sentencing hearing, the trial court admitted into evidence the presentence report
and Washington County indictments charging the Defendant with promotion of meth
manufacture, possession of a schedule IV controlled substance, and possession of drug
paraphernalia.

       Bobby Vencill testified on the Defendant’s behalf. He stated that the Defendant had
worked for him as a truck driver from 1997 until 2011. Mr. Vencill explained that this job
was “seasonal,” so, during slower times, the Defendant helped with welding jobs and work
around Mr. Vencill’s farm. Mr. Vencill described the Defendant as “humble,” stating that
the Defendant “would do whatever you would ask him to do.” Mr. Vencill additionally
described the Defendant as “reliable” and a “good employee.” Mr. Vencill stated that if the
Defendant were sentenced to probation, he would employ the Defendant.

        On cross-examination, Mr Vencill testified that there were between five and ten
occasions during which he suspected the Defendant was “under the influence” at work. He
said he addressed his concern with the Defendant, and the Defendant “was honest” but would
“convince [Mr. Vencill] that he was going to quit.”

        Don Cook testified he had been working with the Defendant through the AA program
in the Marshall County jail. Mr. Cook confirmed that he was testifying “voluntarily.” He
said that he did not “normal[ly]” testify for persons he worked with through AA in jail. Mr.
Cook said that the Defendant had been attending AA every week, and he believed the
Defendant was “very sincere.” Mr. Cook recalled a time when the Defendant inquired about
“what will happen” after he was released from jail. Mr. Cook obtained and provided the
Defendant with a list of contacts and meetings in his area. He stated that he believed the
Defendant “want[ed] to change his life.” He said that the Defendant “doesn’t want to go
back to the old life he was living” and was “willing to do anything it takes to keep the new
life he has gotten today.”

        After hearing the evidence, the trial court considered the Defendant’s criminal history
composed mostly of misdemeanors beginning in 1994. Based upon these convictions, the
trial court determined that the Defendant would be sentenced as a Range I, standard offender.
The trial court then recited the Defendant’s criminal history, noting that the Defendant was
released from jail on bond in Washington County at the time of the instant offenses. The trial
court considered the evidence received at the guilty plea submission hearing and sentencing
hearing; the presentence report; statutory mitigating and enhancement factors; the criminal

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conduct involved; arguments of counsel; and the principles of sentencing. The trial court
noted the Defendant’s long history of criminal conduct based upon his convictions and drug
use since the age of twenty-two. The trial court also noted that the Defendant had admitted
in the presentence report to “cooking meth” for himself and other people for “a couple of
years.” It then sentenced the Defendant to serve eight years and three months for the
initiation of a process intended in the result of methamphetamine, a Class B felony, and
eleven months and twenty-nine days for the possession of drug paraphernalia conviction, to
run concurrently. It is from these judgments that the Defendant now appeals.

                                        II. Analysis

        The Defendant argues that the trial court erroneously denied him alternative
sentencing. The Defendant contends that he is eligible for the Community Corrections
program and, therefore, the trial court should have sentenced him accordingly. The State
responds that the trial court properly considered the Defendant’s lengthy history of criminal
activity and substance abuse in denying alternative sentencing. We agree with the State.

        In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” Bise, 380 S.W.3d at 682. A finding of abuse of discretion “‘reflects that
the trial court’s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer,
45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
To find an abuse of discretion, the record must be void of any substantial evidence that would
support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);
State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should
uphold the sentence “so long as it is within the appropriate range and the record demonstrates
that the sentence is otherwise in compliance with the purposes and principles listed by
statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the
appropriate range and properly applies the purposes and principles of the Sentencing Act, its
decision will be granted a presumption of reasonableness. Id. at 707.

        Recently, our Supreme Court extended the Bise standard to appellate review of the
manner of service of the sentence. The Court explicitly held that “the 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 the
questions related to probation or any other alternative sentence.” Caudle, 388 S.W.3d at 278-
79. We are also to recognize that the defendant bears “the burden of demonstrating that the

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sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        In determining the proper sentence, the trial court 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
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). 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 (2010).

      With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) (2010) 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 rehabilitation shall be given
       first priority regarding sentencing involving incarceration.

A defendant who does not fall within this class of offenders, “and who is an especially
mitigated offender 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.” T.C.A. § 40-35-102(6). 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).

       Even if a defendant is a favorable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102(6), a trial court may deny an alternative
sentence because:

       (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

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       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.

        Because the Defendant was convicted of a Class B felony, he is not considered to be
a favorable candidate for alternative sentencing, and he has not carried his burden of
demonstrating that he is a proper candidate for alternative sentencing. The Defendant’s
criminal history began in 1994, spanning nearly two decades. The Defendant, at the time of
his arrest, was released on bond for other methamphetamine-related charges and operating
a methamphetamine lab in a hotel room. In the presentence report, the Defendant admitted
to regular use of methamphetamine for a ten-year period, and to “cooking” this dangerous
substance for himself and others for two years. The record supports the trial court’s
determination that confinement is necessary based on the Defendant’s lengthy criminal
history and conduct.

        Accordingly, the trial court followed the purposes and principles of the Sentencing
Act when it applied a sentence within the appropriate sentencing range, and the trial court
acted within its discretion when it denied alternative sentencing. The Defendant is not
entitled to relief.

                                      III. Conclusion

       In accordance with the foregoing reasoning and authorities, the judgments of the trial
court are affirmed.
                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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