        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 25, 2012

           STATE OF TENNESSEE v. ODELL TAYLOR WISDOM

                   Appeal from the Criminal Court for Sullivan County
                     No. S59091 Robert H. Montgomery, Jr., Judge



                  No. E2011-02263-CCA-R3-CD - Filed August 20, 2012


Appellant, Odell Wisdom, pled guilty in Sullivan County to the charge of felony failure to
appear in exchange for a five-year sentence as a Range III, persistent offender. The trial
court held a sentencing hearing specifically for the purpose of addressing Appellant’s request
for probation or alternative sentencing. The trial court denied Appellant’s request and
ordered Appellant to serve the sentence in confinement. Appellant appeals, arguing that the
trial court erred in denying an alternative sentence. However, after a thorough review of the
record, we conclude that the trial court properly denied probation or alternative sentencing.
Therefore, we affirm the judgment of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
D. K ELLY T HOMAS, J R., JJ., Joined.

William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the appellant,
O’Dell Taylor Wisdom.

Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney
General; Greeley Wells, District Attorney General, and Joseph E. Perrin, Assistant District
Attorney General, for the appellant, State of Tennessee.


                                         OPINION

                                    Factual Background

       On March 8, 2011, Appellant was indicted by the Sullivan County Grand Jury for one
count of felony failure to appear. On July 28, 2011, Appellant pled guilty to the offense as
charged. Pursuant to the plea agreement, Appellant was sentenced to five years as a Range
III, persistent offender for one count of felony failure to appear, to run consecutively to his
previous eight-year sentence. Appellant was also fined five hundred dollars.

        On October 13, 2011, the trial court conducted a sentencing hearing for the purpose
of determining the manner in which Appellant would serve his sentence. Appellant did not
present any evidence at the hearing and chose to rely on the presentence report submitted into
evidence by the State. In the presentence report, Appellant stated that he did not turn himself
in to police because he was caring for his mother who had cancer.1 The trial court denied any
form of alternative sentencing. The trial court noted that Appellant had a previous history
of criminal convictions, was a Range III, persistent offender, and had previously failed to
comply with the conditions of a sentence involving release into the community. In other
words, the trial court determined that past efforts at rehabilitation were not successful. The
trial court noted that Appellant had been “taking advantage” of the opportunity to delay his
previous sentence by not reporting to jail when he was out on bond. Therefore, the trial court
determined that Appellant’s behavior warranted a sentence of incarceration and ordered
Appellant to serve his entire sentence.

        Appellant appeals the trial court’s denial of alternative sentencing.

                                                Analysis

       On appeal, Appellant submits that none of the above reasons provide a sufficient
ground to deny him alternative sentencing. Specifically, Appellant contends that he is a
proper candidate for alternative sentencing despite his prior criminal history because his
crime neither caused nor threatened serious bodily harm. Additionally, Appellant argues that
he has a high probability of rehabilitation and a grant of probation or alternative sentencing
would not diminish the seriousness of the offense. The State argues that Appellant failed to
carry his burden of showing that he was a suitable candidate for alternative sentencing.

       “When reviewing sentencing issues . . . the appellate court shall conduct a de novo
review on the record of such issues. Such review shall be conducted 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). “However, the presumption of correctness which accompanies the trial
court’s action is conditioned upon the affirmative showing in the record that the trial court


        1
          In the presentence report, Appellant claimed that he was the one person taking care of his mother
and that he would live with his mother upon his release. However, Appellant contradicted himself in a later
statement in the presentence report because he admitted that his sister helped take care of his mother and
resided at her residence.

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considered the sentencing principles and all relevant facts and circumstances.” State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        In conducting a de novo review, we must consider: (1) any evidence received at the
trial and/or sentencing hearing; (2) the presentence report; (3) the principles of sentencing
and the arguments of counsel relative to sentencing alternatives; (4) the nature and
characteristics of the offense; (5) any mitigating or enhancement factors; (6) any statistical
information provided by the administrative office of the courts as to Tennessee sentencing
practices for similar offenses; (7) and any statements made by the accused in his own behalf.
T.C.A. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002); see also State v.
Carter, 254 S.W.3d 335, 343 (Tenn. 2008). We are to also recognize that the appealing party
bears “the burden of demonstrating that the sentence is improper.” T.C.A. § 40-35-401(d),
Sentencing Comm’n Cmts; Ashby, 823 S.W.2d at 169.

       As a result of the 2005 sentencing amendments, a defendant is no longer presumed
to be a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347 (citing
T.C.A. § 40-35-102(6)). While a presumption no longer exists, an especially mitigated or
standard offender convicted of a Class C, D, or E felony is still considered a “favorable
candidate” for alternative sentencing in the absence of evidence to the contrary. Id. A
defendant is eligible for an alternative sentence if his sentence is ten years or less. T.C.A.
§ 40-35-303.

        In determining a defendant’s suitability for a non-incarcerative sentencing alternative,
the 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)(A)-(C)

       The court should also consider the defendant’s potential for rehabilitation or treatment
in determining the appropriate sentence. T.C.A. § 40-35-103(5). In choosing among
possible sentencing alternatives, the trial court should also consider Tennessee Code

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Annotated section 40-35-103(5), which states, in pertinent part, “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant should be considered in
determining the sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-
103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). A defendant is
eligible for probation “if the sentence actually imposed . . . is (10) years or less. . ..”

      Appellant herein pled guilty to felony failure to appear, a Class E felony. Appellant
was sentenced to less than ten years as a Range III, persistent offender.2 Therefore,
Appellant was eligible for alternative sentencing including probation. See T.C.A. §§40-35-
102(6) &- 303(a).

       After reviewing the record, we determine that the trial court properly denied
alternative sentencing. At the conclusion of the sentencing hearing, the trial court stated that
it considered the presentence report, the prior criminal history and social history, and
determined that Appellant would not receive alternative sentencing or probation. The trial
court noted that the presentence report listed that Appellant was directed to report to the
Sullivan County Jail on February 19, 2011, to begin serving a sentence for three felony
convictions of the sale of cocaine within 1,000 feet of a school zone. The trial court stated
that Appellant did not report. Furthermore, the trial court noted that Appellant had twenty-
eight prior criminal convictions.

        With regard to Appellant’s prior record, the presentencing report shows a lengthy
criminal history. Appellant’s criminal history begins with a conviction in 1989, when he was
thirty years old. Appellant clearly has a history of various kinds of offenses as evidenced by
his one conviction for public intoxication; two convictions for resisting a stop, frisk, halt, or
arrest; one conviction for a DUI; one conviction for failing to register and obtain a title; two
convictions for driving without a license; and two convictions for simple assault. In addition,
Appellant has eleven prior misdemeanor charges on record.

       We acknowledge that Appellant did not threaten serious bodily injury to others while
he was out on bond. However, he does have a lengthy criminal history that demonstrates a
disrespect for individuals in the community, as well as a disrespect for the laws of the State
of Tennessee. Appellant was released into the community on bond and could not comply
with the requirements of his sentence. We agree with the trial court’s assessment that it is
inappropriate to grant Appellant probation or alternative sentencing based on his significant
criminal history and failure to comply with the conditions of his bond. Therefore, we

        2
          To qualify as a Range III, persistent offender, a defendant must have “any combination of five (5)
or more prior felony convictions within the conviction class or higher, or within the next two (2) lower felony
classes.” T.C.A. § 40-35-107(a)(1).


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conclude that the trial court’s denial of alternative sentencing or probation is supported by
the record.

                                            Conclusion

       For the foregoing reasons, we affirm the judgments of the trial court.




                                                   ___________________________________
                                                   JERRY L. SMITH, JUDGE




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