        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 16, 2014

          STATE OF TENNESSEE v. KEYONNA NICOLE WOOTEN

               Direct Appeal from the Circuit Court for Lincoln County
                  No. 2013-CR-133      Forest A. Durard, Jr., Judge


                 No. M2014-00253-CCA-R3-CD - Filed August 8, 2014


The appellant, Keyonna Nicole Wooten, pled guilty in the Lincoln County Circuit Court to
one count of selling one-half gram or more of a Schedule II controlled substance and one
count of delivering one-half gram or more of a Schedule II controlled substance. After a
sentencing hearing, the trial court merged the latter conviction into the former and sentenced
the appellant as a Range I, standard offender to nine years, six months in confinement. On
appeal, the appellant contends that her sentence is excessive and that the trial court erred by
denying her request for alternative sentencing. Based upon the record and the parties’ briefs,
we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL
and A LAN E. G LENN, JJ., joined.

William J. Harold, Lewisburg, Tennessee, for the appellant, Keyonna Nicole Wooten.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Robert James Carter, District Attorney General; and Ann L. Filer, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       On October 21, 2013, the appellant pled guilty to count one, selling one-half gram or
more of cocaine, and count 2, delivering one-half gram or more of cocaine, Class B felonies.
At the appellant’s guilty plea hearing, the State gave the following factual account of the
crimes:
              On May 29, 2013, deputies who function as drug investigators
              for the Lincoln County Sheriff’s Department were working on
              making undercover buys here in Lincoln County utilizing a
              confidential informant using the standard procedure to make
              certain that everything is conducted in a proper manner. The
              searches, the confidential funds with the numbers written down
              ahead of time, all of those types of procedures, and with this
              being done under surveillance by audio recording.

                     A buy was conducted on that date. Crack cocaine was
              purchased from Ms. Wooten here in Lincoln County by the
              confidential informant. The suspected crack cocaine was in turn
              sent to the TBI crime laboratory where it was analyzed and
              confirmed to be cocaine, a Schedule II controlled substance, in
              the amount of 13.84 grams.

Pursuant to the plea agreement, the trial court was to sentence the appellant after a sentencing
hearing.

        At the sentencing hearing, no witnesses testified, but the State introduced the
appellant’s presentence report into evidence. According to the report, the then twenty-seven-
year-old appellant was single with two children and expecting her third child. In the report,
the appellant stated that she was removed from her parents’s care when she was nine years
old and grew up in group homes, foster care, and mental health homes. She also stated that
she had suffered from depression since she was fifteen and was hospitalized one time for
treatment. The appellant described her mental health as fair and her physical health as good
and denied using alcohol or drugs. The report shows that the appellant dropped out of high
school after the ninth grade and that she worked for Blimpie’s from June 19 to July 15, 2013,
and Hardee’s from January 1 to September 1, 2010. The State introduced into evidence
certified copies of judgments of conviction for failure to appear in 2013, failure to appear in
2008, disorderly conduct, misdemeanor theft in 2009, misdemeanor theft in 2005,
misdemeanor vandalism, and failure to yield the right of way. The State also introduced into
evidence documentation showing that the appellant had violated probation sentences several
times and advised the trial court that the appellant “has made only five of the 18 payments
that are owed to the court to date.”

       The trial court noted that the range of punishment for a Range I, standard offender
convicted of a Class B felony was eight to twelve years. See Tenn. Code Ann. § 40-35-
112(a)(2). The trial court stated that appellant had “a slew” of prior misdemeanor
convictions and applied enhancement factor (1), that “[t]he defendant has a previous history

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of criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range.” Tenn. Code Ann. § 40-35-114(1). The trial court also applied
enhancement factors (8), that “[t]he defendant, before trial or sentencing, failed to comply
with the conditions of a sentence involving release into the community,” and (13), that at the
time the felony was committed, the defendant was on probation for failure to appear. Tenn.
Code Ann. § 40-35-114(8), (13)(C). The trial court applied no mitigating factors.

        The trial court stated that it had considered the appellant’s presentence report, the facts
and circumstances of the case, the appellant’s prior criminal history, her potential for
rehabilitation, whether she would abide by the terms of probation, whether measures less
restrictive than confinement had been frequently or recently applied to the appellant, and
whether a sentence of full probation would depreciate the seriousness of the offense. The
trial court stated that the appellant “has got all kind[s] of problems” and that she “just can’t
seem to make it under any supervision.” The court noted that while the appellant was on
probation for misdemeanor theft in 2005, she committed vandalism and that she committed
misdemeanor theft in 2009 “right on the heels” of her disposition for failure to appear in
2008. The trial court stated that the appellant “doesn’t have any respect for the terms and
conditions of probation” and found her to have poor potential for rehabilitation. The trial
court merged count 2 into count 1 and sentenced the appellant to nine and one-half years in
confinement.

                                          II. Analysis

       The appellant contends that the trial court gave too much weight to enhancement
factor (1) because all of her prior convictions were misdemeanors and that the trial court
erred by denying her request for alternative sentencing. The State argues that the trial court
properly sentenced the appellant. We agree with the State.

       “[S]entences 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.’”
State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Our supreme court has explicitly stated
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.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        In conducting its review, this court considers the following factors: (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

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parties on enhancement and mitigating factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise,
380 S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

                              (1) The minimum sentence within the
                      range of punishment is the sentence that should be
                      imposed, because the general assembly set the
                      minimum length of sentence for each felony class
                      to reflect the relative seriousness of each criminal
                      offense in the felony classifications; and

                            (2) The sentence length within the range
                      should be adjusted, as appropriate, by the
                      presence or absence of mitigating and
                      enhancement factors set out in §§ 40-35-113 and
                      40-35-114.

Tenn. Code Ann. § 40-35-210(c).

        Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme
court has stated that “a trial court’s weighing of various mitigating and enhancement factors
[is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words,
“the trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id.
at 343. “[A]ppellate courts are therefore left with a narrower set of circumstances in which
they might find that a trial court has abused its discretion in setting the length of a
defendant’s sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

       An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentence meets this

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requirement. Additionally, an appellant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).
The appellant, convicted of Class B felonies, is not considered to be a favorable candidate
for alternative sentencing. Moreover, the following sentencing considerations, set forth in
Tennessee Code Annotated section 40-35-103(1), may constitute “evidence to the contrary”:

                            (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.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court should
consider the defendant’s potential or lack of potential for rehabilitation when determining
if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-35-103(5).

       Regarding the appellant’s claim that the trial court gave too much weight to
enhancement factor (1), the weighing of mitigating and enhancing factors is left to the trial
court’s sound discretion. Carter, 254 S.W.3d at 345. Furthermore, the 2005 amendments to
the 1989 Sentencing Act “deleted as grounds for appeal a claim that the trial court did not
weigh properly the enhancement and mitigating factors.” Id. at 344. Accordingly, the
appellant is not entitled to relief on this basis.

       As to the appellant’s claim for alternative sentencing, the appellant has been
committing crimes since she was nineteen years old. She committed some crimes while she
was on probation for other crimes and violated probation several times. The trial court’s
statements at the sentencing hearing demonstrate that it was frustrated by the appellant’s
refusal to abide by the terms and conditions of prior probation sentences, and the court
determined that she was not amenable to rehabilitation. We agree that the appellant’s actions
demonstrate poor rehabilitative potential. Accordingly, we conclude that the trial court did
not abuse its discretion by denying alternative sentencing.

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                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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