        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs July 21, 2015


               STATE OF TENNESSEE v. DARRYL L. WEEMS

                Appeal from the Criminal Court for Sullivan County
                        No. S62233   R. Jerry Beck, Judge




             No. E2015-00006-CCA-R3-CD – Filed September 14, 2015
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The Defendant, Darryl L. Weems, pleaded guilty to attempt to obtain a controlled
substance by fraud, forgery, and identity theft, in exchange for an effective six-year
sentence with the trial court to determine the manner of service. Following a sentencing
hearing, the trial court ordered the Defendant to serve his sentence in the Department of
Correction. On appeal, the Defendant asserts that the trial court erred in denying his
request for alternative sentencing. After a thorough review of the record and applicable
law, we affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROGER A. PAGE, JJ., joined.

David S. Barnette, Jr., Kingsport, Tennessee, for the Appellant, Darryl L. Weems.

Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior
Counsel; Barry Staubus, District Attorney General; and Josh D. Parsons, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                         Factual and Procedural Background

       The Sullivan County Grand Jury indicted the Defendant, Darryl Weems, on one
count of attempt to obtain a controlled substance by fraud, one count of forgery, and one
count of identity theft. The Defendant pleaded guilty to all three charges. At the plea
colloquy, the State made the following offer of proof:

              On August 30, 2012, Detective Micah Johnston of the Kingsport
       Police Department went to the Walmart on West Stone Drive in the City of
       Kingsport, Sullivan County, Tennessee, in reference to a prescription that
       had been passed July, 29, 2012, from Dr. John Tasker‟s office, for 180
       oxycodone, 30 milligrams. The name on the prescription was for Darryl
       Saylor.

              He checked with Dr. John Tasker‟s office and found that the
       prescription was a forgery, and that . . . Darryl Saylor had never been a
       patient of Dr. Tasker‟s.

             Through an interview with Misty Gardner, the Defendant was
       developed as a suspect, and compared with the security video from
       Walmart, was identified to be the person who passed the prescription at
       Walmart on July 29, 2012.

       Pursuant to his plea agreement, the Defendant received concurrent sentences of six
years for attempt to obtain a controlled substance by fraud, three years for forgery, and
six years for identity theft. At the alternative sentencing hearing, the trial court reviewed
the Defendant‟s criminal history as set forth in the presentence report. The court noted
the Defendant‟s prior convictions for attempted burglary, aggravated burglary, theft, and
other misdemeanors.

        The presentence report revealed that the Defendant attended school through the
ninth grade. The Defendant had not completed his GED, but he completed a substance
abuse educational program while incarcerated in Hardeman County Correctional Facility.
In the presentence report, the Defendant described his physical health as fair, stating that
his life of working with loud equipment resulted in hearing issues. He indicated he had
no physician and did not take any prescribed medication. The Defendant described his
mental health as fair but reported that he had not sought any mental health treatment.

        The presentence report also revealed the Defendant‟s employment history. Since
October 2012, the Defendant worked for River Gardens of Johnson City, Tennessee as a
laborer, earning fifteen dollars per hour. Additionally, the Defendant worked off and on
as a laborer for the landscaping business of a family friend.

       The Defendant‟s ex-wife, Nikki Concepcion, testified that she and the Defendant
had three children together and currently lived together. She stated that the Defendant
assisted her by providing money for bills and by taking care of her children when she was
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unable to do so. Ms. Conception explained that she had four children living with her at
the time of the hearing, ages fifteen, thirteen, eleven, and two. She testified that her
fifteen-year-old daughter suffered from two heart conditions. She stated that she was
unable to care for her children alone because she suffered from chronic obstructive
pulmonary disease, emphysema, liver disease, and kidney disease and was often in the
hospital. Ms. Concepcion testified that the Defendant was the primary breadwinner of
the household and that, despite her health problems, she did not receive any government
disability assistance. Ms. Concepcion described the Defendant‟s work ethic as “great.”

       Lena Cook, the Defendant‟s sister, testified that the Defendant helped care for
their eighty-four-year-old mother. She explained that the Defendant provided money
when he was able to do so, performed handy-work on their mother‟s home, and assisted
in moving their mother in and out of the car during visits to the doctor‟s office. She
reported that her boyfriend was occasionally available to assist in these tasks, but the
responsibility fell primarily on her and the Defendant. Ms. Cook further testified to the
Defendant‟s strong work ethic.

        Lena Cook‟s boyfriend, George Leroy Whistine, testified that he had known the
Defendant for approximately eight years. He explained that he occasionally worked with
the Defendant. Mr. Whistine testified to the Defendant‟s numerous skills as a handyman,
noting that the Defendant specialized in landscaping. Additionally, Mr. Whistine
testified that the Defendant had a positive work ethic and that the Defendant would “work
you in the ground.”

       The Defendant testified that he lived with Ms. Conception in Johnson City,
Tennessee. He helped Ms. Conception pay bills and assisted in caring for her children.
The Defendant also stated he helped his sister and mother. He explained that he replaced
the plumbing in their house, cleaned their gutters, mowed their yard, and assisted his
mother when she travelled to and from the doctor‟s office.

        The Defendant testified that his criminal conduct began at a young age. He
recalled committing auto burglaries as an eighteen-year-old, for which he was granted
probation. The Defendant admitted that his probation was revoked when he absconded
from supervision. Next, the Defendant testified that he was convicted of numerous
crimes from 2004 and 2005, including four convictions for aggravated burglary, one
conviction for burglary other than a habitation, and seven convictions for theft of
property. The Defendant testified that he received probation for those convictions and
that he violated probation three times. The Defendant attributed his involvement in the
string of crimes to hanging around with the wrong people.

      The Defendant then testified to his conduct in the instant case. He explained that
he was between jobs at the time of the offenses and that he felt depressed. He testified
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that an acquaintance from prison began showing up at his home and offering him money
to pass fake prescriptions. The Defendant stated that he eventually gave in to the man‟s
persistence and agreed to go through with the man‟s plan. The Defendant acknowledged
that he exercised poor judgment. Additionally, the Defendant testified that he offered to
cooperate with authorities and provide information about his fellow conspirators.

       The trial court reviewed the presentence report and noted the Defendant‟s
extensive criminal history. The trial court stated it was not considering the Defendant‟s
juvenile record. However, even without considering his juvenile record, the trial court
noted that the Defendant had a long criminal record. The court also noted that the
Defendant had been placed on probation numerous times and that he had a history of
probation violations. The trial court stated that it had considered all the possible
alternative sentences, including Community Corrections and split confinement, and
concluded that the Defendant was not a proper candidate for alternative sentencing.
Consequently, the court ordered the Defendant to serve his sentence in confinement.

                                         Analysis

       On appeal, the Defendant claims that the trial court improperly weighed several
mitigating factors set forth in Tennessee Code Annotated section 40-35-113 and erred
when it denied his request for alternative sentencing.

       Although the statutory language continues to describe the applicable appellate
review for sentencing decisions as de novo with a presumption of correctness, Tenn.
Code Ann. § 40-35-401 (2014), the 2005 revisions to the Sentencing Act “effectively
abrogated the de novo standard of appellate review.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). Following the 2005 amendments, sentences imposed within the statutory
range that reflect a proper application of the purposes and principles of sentencing are
reviewed under an abuse of discretion standard with a presumption of reasonableness. Id.
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)). In State v. Caudle, the
supreme court expanded its holding in Bise to trial courts‟ decisions
regarding alternative sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        To determine 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; (6) any statistical information
provided by the administrative office of the courts as to sentencing practices for similar
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offenses in Tennessee; and (7) any statement the defendant made in the defendant‟s own
behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b) (2014); 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. See Tenn. Code Ann. § 40-35-103(5) (2014).
Additionally, the sentence should be no greater than that deserved for the offense
committed and should be the least severe measure necessary to achieve the purposes for
which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4) (2014). The
foremost purpose of the Act is to promote justice. Tenn. Code Ann. § 40-35-102 (2014).

        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2014); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2014), Sentencing Comm‟n Cmts.

       Pursuant to Tennessee Code Annotated section 40-35-102, “[e]very defendant
shall be punished by the imposition of a sentence justly deserved in relation to the
seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1) (2014). Further, in
recognition of the fact that state prison capacities and resources are limited, “felons
convicted of the most severe offenses, possessing criminal histories evincing a clear
disregard for the law and morals of society and evincing failure of past efforts at
rehabilitation” are given first priority for sentences of incarceration. Tenn. Code Ann. §
40-35-102(5) (2014).

       Under the revised Tennessee sentencing statutes, 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 Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a 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.” Tenn. Code Ann. § 40-35-102(6).

      Under Tennessee Code Annotated section 40-35-103, the trial court should look to
the following considerations to determine whether a sentence of confinement is
appropriate:

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

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       (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.

Tenn. Code Ann. § 40-35-103(1) (2014).

       Although the trial court should consider enhancement and mitigating factors when
making its determination, the statutory factors are advisory only. Bise, 380 S.W.3d at
704; Carter, 254 S.W.3d at 343-44. 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].‟” Carter, 254 S.W.3d at 343.
A claim that the trial court improperly weighed the enhancement or mitigating factors is
no longer a ground for appeal. Id. at 344. A trial court‟s “misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at
706. This court may not disturb the sentence even if it would prefer a different result.
See Carter, 254 S.W.3d at 346.

        Here, the Defendant contends that the trial court failed to properly consider
numerous mitigating factors. Specifically, the Defendant claims that the trial court failed
to consider that the Defendant assisted authorities in uncovering offenses committed by
other persons or in detecting or apprehending other persons who had committed the
offenses; that the Defendant assisted in finding property or persons involved in the crime;
that the Defendant acted under duress or domination of another person; that the
Defendant was motivated by a desire to provide necessities for his family or himself; and
that the Defendant has a positive work history. Additionally, the Defendant argues that
the trial court afforded too little weight to the fact that the Defendant showed remorse for
his actions and that the Defendant had “family problems occurring at the time of the
hearing.” As noted above, improper weighing of enhancing or mitigating factors is no
longer a ground for appeal. See Carter, 254 S.W.3d at 344. Instead, we must determine
whether the sentence imposed was consistent with the purposes and principles of
sentencing. See id. at 343.

       In this case, the trial court addressed the confinement considerations and found
that the Defendant had multiple prior felony convictions spanning 1989 to 2005.
Additionally, the trial court found, even excluding the one technical violation of
probation, that the Defendant repeatedly failed to comply with the conditions of prior
sentences involving his release into the community. The trial court stated that it had
considered all the possible alternative sentences, including Community Corrections and
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split confinement. However, based on the Defendant‟s prior criminal history and
probation violations, the trial court concluded that the Defendant was not a proper
candidate for alternative sentencing. The evidence on record supports the sentencing
decision of the trial court, and the Defendant has failed to establish an abuse of
discretion.

                                      Conclusion

      For the aforementioned reasons, the judgments of the trial court are affirmed.



                                                _________________________________
                                                ROBERT L. HOLLOWAY, JR., JUDGE




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