        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 14, 2012

         STATE OF TENNESSEE v. CHRISTOPHER SETH HALEY

                Appeal from the Criminal Court for Sumner County
             Nos. 199-2008, 450-2008, 439-2010  Dee David Gay, Judge


              No. M2011-00085-CCA-R3-CD - Filed September 27, 2012


On March 6, 2008, the Defendant-Appellant, Christopher Seth Haley, was indicted in case
number 199-2008 for violating the Motor Vehicle Habitual Offender’s Act (MVHOA),
evading arrest, possession of a Schedule II controlled substance, possession of drug
paraphernalia, and conviction of two or more prior offenses of simple possession or casual
exchange of a controlled substance that could be used to enhance his punishment for the third
offense of simple possession of a controlled substance pursuant to Tennessee Code
Annotated section 39-17-418(e). On June 6, 2008, Haley was indicted in case number 450-
2008 for possession of .5 grams or more of a Schedule II drug with the intent to sell or
deliver. On March 30, 2009, he entered guilty pleas in case number 199-2008 to the offenses
of violating the MVHOA and evading arrest, Class E felonies, and in case number 450-2008
to the offense of possession of .5 grams or more of a Schedule II drug with the intent to sell
or deliver, a Class B felony, and the State entered a nolle prosequi for the remaining charges
in case number 199-2008. On June 10, 2010, Haley was indicted in case number 439-2010
for felony escape and two counts of felony failure to appear. On September 30, 2010, Haley
entered a guilty plea in case number 439-2010 to one count of failure to appear, a Class E
felony, and the State entered a nolle prosequi for the remaining counts in that case number.
On December 10, 2010, the trial court sentenced Haley as a Range I, standard offender to
concurrent sentences of two years for violating the MVHOA conviction, two years for the
evading arrest conviction, and ten years for the possession of .5 grams or more of a Schedule
II drug with the intent to sell or deliver conviction. The court also sentenced Haley as a
Range II, multiple offender to a consecutive sentence of four years for the felony failure to
appear conviction, for an effective sentence of fourteen years in the Tennessee Department
of Correction. On appeal, Haley contends that the trial court erred in failing to consider any
mitigating factors before imposing his sentence and erred in denying him an alternative
sentence. Upon review, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JOSEPH M. T IPTON,
P.J., and J OHN E VERETT W ILLIAMS, J, joined.

Jason B. Elliott (on appeal) and Lawren B. Lassiter (at trial), Gallatin, Tennessee, for the
Defendant-Appellant, Christopher Seth Haley.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney
General; Lawrence R. Whitley, District Attorney General; and Jayson C. Criddle, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

        Plea Submission Hearing. At the September 30, 2010 plea submission hearing, the
State informed the trial court that Haley had been charged with one count of escape and two
counts of felony failure to appear in case number 439-2010 and was entering a guilty plea
as a Range II, multiple offender to one count of felony failure to appear, with the length and
manner of the service of the sentence to be determined by the court. The State entered a
nolle prosequi for the remaining counts in case number 439-2010. The State also told the
court that the sentence for the felony failure to appear conviction would be served
consecutively to Haley’s sentences for violating the MVHOA and evading arrest in case
number 199-2008 and possession of .5 grams or more of a Schedule II drug with the intent
to sell or deliver in case number 450-2008, to which Haley had previously entered guilty
pleas in exchange for an effective sentence of ten years and a sentencing hearing that was
delayed for one year.

       The State explained that Haley also failed to appear for his March 25, 2010 sentencing
hearing for the convictions in case numbers 199-2008 and 450-2008, which provided the
basis for the two felony failure to appear charges. After being informed of his rights, Haley
entered a guilty plea as a Range II, multiple offender to one count of felony failure to appear.

       We initially note that although Haley included the plea submission hearing transcript
for the felony failure to appear offense, he did not include the plea submission hearing
transcript for the offenses of violating the MVHOA, evading arrest, and possession of .5
grams or more of a Schedule II drug with the intent to sell or deliver. However, we are able
to determine the facts regarding these offenses from the indictments, the plea submission
hearing transcript for the felony failure to appear offense, the guilty plea documents, the
sentencing hearing transcript for all four offenses, the presentence investigation report, and
the judgments. In particular, the State’s detailed summary of the facts regarding the offenses,
which was undisputed by Haley, and Haley’s own testimony regarding the offenses at the
sentencing hearing provide us with sufficient information upon which to evaluate the

                                              -2-
propriety of his sentences. Accordingly, we will review the issues in this appeal on their
merits. See State v. Anna M. Steward, No. E2010-01918-CCA-R3-CD, 2011 WL 4346659,
at *2 (Tenn. Crim. App., at Knoxville, Sept. 19, 2011) (“Despite the absence in the appellate
record of a transcript of the plea submission hearing, we hold that the record is adequate for
this court’s de novo review[.]”); see also State v. Jeffrey O. Short, No. E2011-01417-CCA-
R3-CD, 2012 WL 2877631, at *3 (Tenn. Crim. App., at Knoxville, July 16, 2012); State v.
Edward L. Baird, No. E2011-01763-CCA-R3-CD, 2012 WL 1867275, at *4 (Tenn. Crim.
App., at Knoxville, May 23, 2012); State v. Leroy Dowdy, No. M2011-00939-CCA-R3-CD,
2012 WL 1808866, at *4 (Tenn. Crim. App., at Nashville, May 17, 2012).

        Sentencing Hearing. At the December 10, 2010 sentencing hearing, the trial court
determined the proper sentences for the convictions for violating the MVHOA, evading
arrest, possession of .5 grams or more of a Schedule II drug with the intent to sell or deliver,
and failure to appear. The State reminded the court that Haley would be sentenced as a
Range I, standard offender for the first three convictions, which were to be served
concurrently, and would be sentenced as a Range II, multiple offender for the failure to
appear conviction, which would be served consecutively to the other three convictions.

        The State explained that the first three charges stemmed from Haley’s refusal to stop
his vehicle for a police officer regarding a seat belt violation on December 14, 2007. When
the officer turned on his emergency lights, Haley did not stop his vehicle until he reached his
place of employment, which was a “pretty substantial distance” away. When Haley finally
brought his car to a stop, the officer determined that Haley was driving in violation of the
MVHOA. After searching Haley’s vehicle, the officer found a small amount of cocaine. In
addition, Haley had “baggies and scales [in his vehicle] and admitted to the officer that he
[sold] cocaine[.]” Later, jail personnel found fourteen grams of cocaine on Haley’s person.
As a result of the December 14, 2007 incident, Haley was charged with violating the
MVHOA, evading arrest, possession of a Schedule II drug, possession of drug paraphernalia,
and possession of .5 grams or more of a Schedule II drug with the intent to sell or deliver.

       While Haley was released on bond for the aforementioned charges, he was also
charged in Davidson County with two sets of violating the MVHOA and driving under the
influence (DUI), which represented his fifth and sixth arrests for DUI. During one of the
incidents in Davidson County, Haley was also charged with leaving the scene of an accident,
evading arrest, and theft of an automobile valued at $10,000 or more but less than $60,000.
Pursuant to his Davidson County plea agreement, one set of these charges was dismissed and
Haley entered a guilty plea to DUI, fourth offense, a Class E felony, and theft of property
valued at $10,000 or more but less than $60,000, a Class C felony.




                                              -3-
       Because of the Davidson County offenses, the State filed a motion to increase Haley’s
bond with regard to his Sumner County offenses. While that motion was pending, Haley
entered guilty pleas to violating the MVHOA, evading arrest, and possession of .5 grams or
more of a Schedule II drug with the intent to sell or deliver. The State agreed to delay
Haley’s sentencing hearing on these offenses for one year so that Haley could enter a long-
term rehabilitation program known as New Hope Restoration House (New Hope) pursuant
to the trial court’s furlough order. After receiving treatment at New Hope for several
months, Haley was granted a weekend pass, during which he was arrested for public
intoxication and evading arrest on foot in Knoxville. As a result of these charges, Haley was
expelled from the rehabilitative program. Following his expulsion from New Hope, Haley
called his attorney and the district attorney’s office and asked for permission to enter a
different rehabilitation program. The assistant district attorney assigned to his case informed
Haley on two or three different occasions that because he was represented by counsel, he
could not speak with him other than to tell him that he could not give him permission to go
to another rehabilitation program, that he was under a duty to turn himself into the
authorities, and that he would have to ask the trial court for permission to enter a new
rehabilitation program. The assistant district attorney immediately called Haley’s attorney
to inform him that he had been contacted by Haley.

         Haley’s expulsion from New Hope violated the Sumner County Criminal Court’s
initial furlough order. As a result, Haley was indicted for felony escape. In addition, Haley
was indicted for two counts of failure to appear because he missed his September 25, 2010
sentencing hearing for the offenses in case numbers 199-2008 and 450-2008 to which he had
previously plead guilty. At the time of the September 25, 2010 sentencing hearing, Haley
had already been convicted of the charges in Davidson County, which made him a Range II,
multiple offender. Despite repeated instructions from defense counsel and the district
attorney’s office, Haley never turned himself into the authorities. He was subsequently
arrested on March 30, 2010, and remained in incarceration until his December 10, 2010
sentencing hearing. Pursuant to the plea agreement, Haley was to receive no jail credit for
the time he spent at New Hope or the time that he spent on escape status.

       At the December 10, 2010 sentencing hearing, letters from Pastor Jeremy Graham,
Matthew Johnson, and Connie Shaffer were entered into evidence. The letter from Graham,
the executive director of the True Purpose Recovery Center, stated that he had been Haley’s
mentor at New Hope. Graham said that Haley had responded positively to the rehabilitaiton
program but that Graham’s departure from the program may “have affected” Haley. Graham
asked that Haley be given another chance at recovery by receiving treatment at the True
Purpose Recovery Center, a nine-and-a-half month rehabilitation program. The letter from
Matthew Johnson, the program director at True Purpose Recovery Center, stated that he had
met Haley when he counseled him at New Hope. Johnson said that he believed that Haley

                                              -4-
was beginning to reach his full potential through counseling at New Hope and had become
an inspiration not only to those who were receiving treatment but also to the staff members.
Johnson explained that he had been given a second chance at recovery for his addictions and
requested that Haley also be given a second chance by being allowed to receive treatment at
the True Purpose Recover Center. The letter from Connie Shaffer, the manager of the thift
store at New Hope, stated that she personally observed Haley during his work at the thift
store and believed that he had great potential to be a productive member of society. She
stated that Haley was deserving of rehabilitation.

      The parties stipulated that the charges of public intoxication and evading arrest on foot
in Knoxville were dismissed. The presentence report, which was admitted as an exhibit,
showed that Haley had been convicted of six felonies in Tennessee, numerous misdemeanors
in Tennessee and Texas, and had two juvenile adjudications that would have been felonies
had Haley committed them as an adult.

       Heath Haley, the Defendant-Appellant’s older brother, testified that the sentencing
hearing was a “watershed moment” for his brother. Heath1 said that his brother was ten years
younger than him and was born the year their parents divorced. He said the divorce
negatively impacted his brother because he did not have a father figure. Heath stated that he
believed his brother had changed during his rehabilitation at New Hope. He also said that
he would not have testified on his brother’s behalf a year ago because his brother had not yet
reached his low point. Heath stated that although he did not believe that his brother should
be released into society, he did believe that his brother could be successful in a “supervised
environment.”

        Amanda Speer, Haley’s cousin, testified that her family had a “severe . . . infestation
of alcoholism.” She stated that she had been to jail three times and turned her life around in
a rehabilitation program that she attended voluntarily. However, she acknowledged that she
had never faced a sixteen-year sentence like the one Haley was facing in this case. Speer said
that she had always been concerned about Haley because he grew up without a father figure.
She believed that someone needed to provide Haley with the “tools” to help himself and that
Haley was ready to start the road to recovery.

      Sue Barker, who met Haley when she was a New Hope volunteer, testified that she
considered Haley a friend. She described Haley as “sweet” but said that he had “some
demons in him that absolutely wouldn’t let him make the right choices.” She believed Haley
was capable of being a leader and had “the potential to be anything he want[ed] to be[.]”

       1
         We have referred to Heath Haley by his first name because he and the Defendant-Appellant share
the same last name.

                                                  -5-
Barker said that there had been a lot of “confusion” during Haley’s treatment when New
Hope changed over to Mercy House and when Jeremy Graham and his counselor Matthew
Johnson left New Hope. She said she was “in shock” when she discovered that Haley had
been expelled from New Hope. Barker stated that Haley and Matthew Johnson formed a
strong bond during Haley’s treatment at New Hope.

        Carlene Herndon, Haley’s step-mother, testified that she married Haley’s father when
Haley was five years old. She believed that Haley had been “lost” for nearly ten years but
that she had been able to meet with him recently and believed he was committed to seeking
treatment. Herndon said that Haley had developed a deep relationship with the Lord, had
accepted responsibility for his actions, and wanted to “get help and get better.” She asked
that the court allow Haley to attend a supervised rehabilitation center that had counseling.

       Martha Haley Perez, Haley’s mother, testified that following her divorce, she and
Haley moved to Houston, where Haley began using drugs and became “[o]verwhelmed with
his alcohol use.” She said that during one of the incidents in Davidson County, Haley had
an accident while driving drunk and spent two days in the hospital. In March 2009, Haley
finally agreed to receive treatment at New Hope. Perez stated that her son had matured
during his time in jail and had become more open and less defensive. She also believed that
Haley had the right mind-set to complete the rehabilitation program with which Jeremy
Graham was associated if the court allowed him to do so.

       Haley, age twenty-eight, testified that he committed his first crime of public
intoxication when he was twelve years old because he had wanted to be friends with the
“cool” kids. He said he drank alcohol and smoked marijuana for the first time at age twelve
and used cocaine for the first time at age fifteen. Haley said it was difficult growing up
because he did not have a father figure. He said he met his biological father for the first time
when he was approximately seven years old. Haley acknowledged that his family loved and
supported him and that he had financial support from them; however, he denied having a
“decent life.”

       Haley acknowledged that he had been arrested six times for DUI and that he had
endangered people’s lives when he had driven while under the influence of alcohol and
drugs. He admitted that his criminal record made him look like he was a dangerous
individual.

       Haley said that when he was twenty-one, he got a job selling cars. He claimed that
many salesmen used cocaine because it was a “long job” that often required them to work
twelve hours a day. At the time, Haley thought that using cocaine was “cool[,]” even though
it was a crime.

                                              -6-
        Regarding the December 14, 2007 incident, Haley said that he refused to stop his
vehicle at the sight of the officer’s emergency lights because there was no place to pull over
on the road. He continued to drive for two or three minutes until he reached his place of
work. Consequently, Haley acknowledged that once he was stopped, the officer found
alcohol, scales, and “a little bit [sic] of drugs in the car.” The officer informed him that he
had been driving in violation of the MVHOA, although Haley claimed that he was not aware
of this fact at the time. Haley said he told the officer about the drugs in his car and later
admitted to jail personnel that he had drugs on his person.

        Haley said he had the scales in his car to weigh the cocaine he purchased in order to
avoid being cheated, and he admitted that baggies were found in his car. Haley also admitted
that he sold marijuana and cocaine in order to support his habit for approximately a year.
Prior to his arrest, he sold drugs to four or five people regularly and eight or nine people less
frequently. He said he was “high” and “drunk” on December 14, 2007, when the officer
stopped him.

        Haley said that in Davidson County he was charged with DUI, fifth offense, which
was reduced to DUI, fourth offense, and car theft. He stated that the day of his arrest he had
been drinking and partying with some friends who had wanted him to purchase some
cocaine. He obtained the cocaine, and as he was driving back to the party, an officer
attempted to stop him. He began driving between eighty and one hundred miles per hour and
hit a bump in the road, which launched the car into the air, causing him to lose control and
hit a brick wall. Because Haley had not been wearing his seat belt, he received serious
injuries and was taken to Vanderbilt Hospital. He was charged with theft of the convertible
he was driving because he did not have the owner’s permission to drive the vehicle. Haley
claimed that another friend at the party had told him to drive the convertible because the
owner was too drunk to drive. The owner later told Haley that he would have to “take the
[theft] charge” or the owner would not receive any money from his automobile insurance for
the damage to the car. Pursuant to his plea agreement on the Davidson County charges,
Haley served seven months in confinement before being placed on probation for three years.
During his time in the Davidson County jail, Haley participated in group sessions for the
New Avenues rehabilitation program. Haley acknowledged that the court later gave him a
furlough for his Sumner County charges, which enabled him to attend the New Hope
rehabilitation center. He acknowledged that if he had not chosen to attend New Hope, he
would have been required to spend two years in the Sumner County jail.

        Haley said that he did not believe that he needed any help for his addictions when he
first began treatment at New Hope. However, once he got there, he “sat [in] church” and
“cried for about 30 days to God.” Haley said he finally acknowledged that he needed to work
through some issues when he began receiving “some real counseling” for his addictions.

                                               -7-
        Haley said that he had received treatment at New Hope for approximately five or six
months when he received his second weekend pass. That particular weekend, Haley admitted
that he drank alcohol and was arrested for public intoxication and evading arrest on foot in
Knoxville, even though these charges were ultimately dismissed. Approximately three weeks
later, the new executive director at New Hope told him that he was expelled from the
program because of the Knoxville criminal charges. Although Haley knew that he was
supposed to return to jail at that point, he did not do so. Instead, Haley completed another
rehabilitation program that lasted ninety days. He admitted that both his attorney and the
assistant district attorney had told him to return to jail, but he refused. After completing the
ninety-day rehabilitation program, Haley stayed with his father for four days until he was
arrested.

        Haley informed the trial court that for the first time in his life he wanted to change.
He admitted that he had been selfish and narcissistic and had never dealt with the “root
issues” of his addiction problems in the past. He acknowledged that he was lucky that he had
not killed anyone during his criminal offenses. Haley said that his “spirit” had changed,
although he acknowledged that he had an internal “spiritual warfare” that consisted of the
good side of him wanting to do the right thing and the bad side of him wanting to do the
wrong thing. Haley said that although he did not want to go to prison, he recognized that he
had to be held accountable for his actions. He also said, “I want to be a success in life
because I know that I can. I’ve been a productive citizen of society. I’ve had careers. I just
didn’t care about them. So that’s why I’m here.” He apologized “for being a menace to
society” and for his criminal offenses. He admitted that he had made several bad decisions
and that for the first time in his life he was trying to change.

       On cross-examination, Haley admitted that he had attended rehabilitations programs
for approximately one year prior to his expulsion from New Hope. He also admitted that he
had received probation several times for his prior convictions. Finally, he admitted that he
knew he was supposed to return to jail after his expulsion from New Hope and after his
completion of the second ninety-day rehabilitation program but failed to do so.

        As a Range I, standard offender, Haley was subject to a sentence of one to two years
for his convictions for violating the MVHOA conviction and evading arrest, Class E felonies.
Id. § 40-35-112(a)(5) (2006). He was also subject to a sentence of eight to twelve years for
his conviction for possession of .5 grams or more of a Schedule II drug with the intent to sell
or deliver, a Class B felony. Id. § 40-35-112(a)(2) (2006). In addition, as a Range II,
multiple offender, Haley was subject to a sentence of two to four years for his conviction for
failure to appear, a Class E felony. Id. § 40-35-112(b)(5) (2006). The trial court sentenced
Haley to concurrent sentences of two years for violating the MVHOA conviction, two years
for the evading arrest conviction, and ten years for the possession of .5 grams or more of a

                                              -8-
Schedule II drug with the intent to sell or deliver. The court also sentenced Haley as a Range
II, multiple offender to a consecutive sentence of four years for the felony failure to appear
conviction, for an effective sentence of fourteen years in the Tennessee Department of
Correction. Haley subsequently filed a timely notice of appeal.

                                         ANALYSIS

          This case is governed by the 2005 amended sentencing act because Haley committed
all four of the offenses in this case after the new sentencing act’s effective date of June 7,
2005. See T.C.A. § 40-35-210 (2006), Compiler’s Notes. Under the amended sentencing
act, “the trial court ‘shall consider, but is not bound by’ an ‘advisory sentencing guideline’
that suggests an adjustment to the defendant’s sentence upon the presence or absence of
mitigating and enhancement factors.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008)
(quoting T.C.A. § 40-35-210(c) (2006)). Moreover, under the new law “[a]n appellate court
is . . . 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. The Tennessee Supreme Court emphasized the
broad discretion the trial court has in sentencing a defendant under this act:

       [A] trial court’s weighing of various mitigating and enhancement factors has
       been left to the trial court’s sound discretion. Since the Sentencing Act has
       been revised to render these factors merely advisory, that discretion has been
       broadened. Thus, even if a trial court recognizes and enunciates several
       applicable enhancement factors, it does not abuse its discretion if it does not
       increase the sentence beyond the minimum on the basis of those factors.
       Similarly, if the trial court recognizes and enunciates several applicable
       mitigating factors, it does not abuse its discretion if it does not reduce the
       sentence from the maximum on the basis of those factors. The appellate 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.

       On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). This means that if the trial court followed the statutory sentencing
procedure, made adequate findings of fact that are supported by the record, and gave due
consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, this court “may not disturb the sentence even if we would

                                               -9-
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). However, in a case where “the trial court applies inappropriate mitigating and/or
enhancement factors or otherwise fails to follow the Sentencing Act, the presumption of
correctness fails.” Carter, 254 S.W.3d at 345 (citing State v. Shelton, 854 S.W.2d 116, 123
(Tenn. Crim. App. 1992)). Because the trial court properly considered the purposes and
principles of the sentencing act, our review is de novo with a presumption of correctness.
See id. at 345-46; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       A trial court, when sentencing a defendant, must consider the following:

       (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 §§ 40-35-113 and 40-35-114;

       (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 wishes to make in the defendant’s own behalf
       about sentencing.

T.C.A. § 40-35-210(b); see Carter, 254 S.W.3d at 343; State v. Hayes, 337 S.W.3d 235, 264
(Tenn. Crim. App. 2010). In addition, “[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) (2006). The defendant
has the burden of showing the impropriety of the sentence. See T.C.A. § 40-35-401(d),
Sentencing Comm’n Comments.

       Mitigating Factors. Haley first argues that the trial court erred in failing to consider
any mitigating factors and erred in failing to make adequate findings on the record regarding
the mitigating factors. In response, the State argues that the trial court considered the
mitigating factors before choosing not to apply them, which was warranted because the proof
showed only that Haley had “a change of heart” during his time in confinement prior to the
sentencing hearing. Moreover, the State notes that Haley failed to identify the specific

                                             -10-
mitigating factors the court should have applied and failed to argue that the trial court erred
in applying the two enhancement factors, including the factor regarding Haley’s lengthy
criminal history, which alone provided a sufficient basis for the trial court to sentence him
to the maximum sentence in the range for each offense. See State v. Lawrence Hailey, No.
W2009-00759-CCA-R3-CD, 2010 WL 2219574, at *11 (Tenn. Crim. App., at Jackson, May
24, 2010) (holding that the enhancement factor regarding a defendant’s criminal history is
sufficient “to enhance a sentence to the maximum and ‘firmly embed’ it in the ceiling”
(citations omitted)). We conclude that the record supports the trial court’s sentence.

       The record shows that although a significant amount of mitigating proof was
presented at sentencing, defense counsel did not ask that any specific mitigating factors be
applied by the trial court. See T.C.A. § 40-35-113 (2006). However, the defendant is not
required to request that certain mitigating factors be considered by the trial court during the
sentencing hearing. See id. § 40-35-210(e) (providing that the trial court is required to state
what mitigating factors, if any, it considered in arriving at the sentence). Here, defense
counsel generally requested leniency in sentencing and specifically requested that the trial
court impose a sentence of split confinement.

         After hearing arguments from the attorneys, the trial court applied to all four
convictions the enhancement factor that the defendant had “a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range[.]” T.C.A. § 40-35-114(1) (2006). In addition, for the convictions for violating the
MVHOA, evading arrest, and possession of .5 grams or more of a Schedule II drug with the
intent to sell or deliver, the court applied the enhancement factor that the “defendant, before
trial or sentencing, failed to comply with the conditions of a sentence involving release into
the community[.]” The court explained that Haley violated the terms of his release on the
Davidson County convictions and violated the terms of his bail in Sumner County as well as
the Sumner County Criminal Court’s furlough order by committing these offenses. Id. § 40-
35-114(8) (2006). Finally, for the felony failure to appear conviction that Haley committed
while released pursuant to the court’s furlough order, the court applied the enhancement
factor that the defendant was on a “form of judicially ordered release” at the time he
committed the felony. Id. § 40-35-114(13)(F) (2006).

       Regarding the mitigating factors, the court stated the following:

               I’m really not impressed with any mitigating factors . . . as stated in
       [the] statute and in the Carter case that I’ve cited recently from our Supreme
       Court. They talk about these enhancing and mitigating factors, and the
       Supreme Court stated that the trial court is free to select any sentence within



                                             -11-
       the applicable range so long as the length of the sentence is consistent with the
       purpose and principles of the sentencing act.

       The record shows that although the trial court determined that no mitigating factors
were applicable after considering the mitigating proof, it failed to state what mitigating
factors, if any, it considered. See T.C.A. § 40-35-210(e) (“When the court imposes a
sentence, it shall place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.”). Although the trial court erred in failing to state
what mitigating factors, if any, it considered, we conclude that the evidence supports the
sentence imposed.

       Moreover, we agree with the State that the trial court was free to sentence Haley to
the maximum sentence in each range based solely on the enhancement factor regarding his
lengthy criminal history. See Lawrence Hailey, 2010 WL 2219574, at *11; see also State v.
Samuel D. Braden, No. 01C01-9610-CC-00457, 1998 WL 85285, at *7 (Tenn. Crim. App.,
at Nashville, Feb. 18, 1998); State v. James Taylor, Jr., No. W2006-02085-CCA-R3-CD,
2007 WL 3391433, at *6 (Tenn. Crim. App., at Jackson, Nov. 14, 2007); State v. Barry
Singleton, No. W2006-02476-CCA-R3-CD, 2009 WL 1161782, at *7 (Tenn. Crim. App., at
Jackson, Apr. 29, 2009). Accordingly, Haley is not entitled to relief on this issue.

       Alternative Sentence. Haley also argues that the trial court erred in denying him an
alternative sentence. Specifically, he claims that the trial court disregarded the proof he
offered establishing his suitability for probation. He also generally claims that the trial court
“did not properly weigh the factors in considering whether the appellant should receive
probation or split confinement.” Finally, he asserts that the trial court improperly relied on
a need for deterrence in denying alternative sentencing, even though there was no proof in
the record regarding a need for deterrence for these types of offenses. In response, the State
argues that the trial court properly denied an alternative sentence after finding that Haley had
a long history of criminal conduct and that measures less restrictive than confinement had
recently been unsuccessfully applied to him. We agree with the State.

       Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated
section 40-35-102(6)(A) (2006) states that a defendant who does not require confinement
under subsection (5) 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[.]” However, a trial court
“shall consider, but is not bound by, the advisory sentencing guideline” in section 40-35-
102(6)(A). T.C.A. § 40-35-102(6)(D) (2006).

                                              -12-
       We note that Haley was considered a favorable candidate for alternative sentencing
for his three Class E felonies, though he was not considered a favorable candidate for
alternative sentencing for his Class B felony. In determining whether to deny alternative
sentencing and impose a sentence of total confinement, the trial court must consider if:

       (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[.]

Id. § 40-35-103(1)(A)-(C) (2006); see Ashby, 823 S.W.2d at 169.

       The trial court’s determination of whether the defendant is entitled to an alternative
sentence and whether the defendant is a suitable candidate for full probation are different
inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.
App. 1996). When a defendant is considered a favorable candidate for alternative
sentencing, the State has the burden of presenting evidence to the contrary. See State v.
Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, the defendant has the burden of
establishing suitability for full probation, even if the defendant is considered a favorable
candidate for alternative sentencing. See id. (citing T.C.A. § 40-35-303(b)).

       We also note that Haley was also eligible for probation because the sentence imposed
in each of his four convictions was ten years or less and the offense for which he was
sentenced was not specifically excluded by statute. T.C.A. § 40-35-303(a) (2006); see State
v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986) (concluding that a defendant with an
effective sentence in excess of ten years is nonetheless eligible for probation if the individual
sentences imposed for each conviction are ten years or less). The trial court shall
automatically consider probation as a sentencing alternative for eligible defendants; however,
the defendant bears the burden of proving his or her suitability for probation. Id. § 40-35-
303(b) (2006). In addition, “the defendant is not automatically entitled to probation as a
matter of law.” Id. § 40-35-303(b), Sentencing Comm’n Comments. Rather, the defendant
must demonstrate that probation would serve “the ends of justice and the best interests of



                                              -13-
both the public and the defendant.” State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App.
2002) (citations omitted).

        When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, his present condition, including physical and mental condition, the
deterrent effect on the defendant, and the best interests of the defendant and the public. See
State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978)). In addition, the principles of sentencing require the sentence
to be “no greater than that deserved for the offense committed” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-35-103(2),
(4) (2006). In addition, “[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[,]” and “[t]he length of a term of probation may reflect the length of
a treatment or rehabilitation program in which participation is a condition of the sentence[.]”
Id. § 40-35-103(5).

       Here, the trial court found that Haley had “a long history of criminal conduct”
pursuant to code section 40-35-103(1)(A). In reviewing Haley’s criminal history, which
included six felonies and numerous misdemeanors, the trial court remarked, “This is one of
the longest [criminal histories that] I’ve ever seen.” The court then reiterated that Haley had
begun drinking alcohol at age ten, first smoked marijuana at age twelve, and first used
cocaine at age fifteen. Because of Haley’s extensive drug use, the court noted that he was
“violating the law almost every day.”

        Regarding code section 40-35-103(1)(B) that “[c]onfinement 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[,]” the court made the
following statement: “I can’t tell you how great the deterrent effect is on cocaine. I can’t
tell you how great the deterrent effect is on going out on a furlough and then [getting drunk
and getting arrested] and then not showing up for court.”

        Finally, regarding code section 40-35-103(1)(C), the court found that “[m]easures less
restrictive than confinement ha[d] frequently or recently been applied unsuccessfully to the
defendant[.]” The trial court emphasized that it had initially given Haley a furlough to seek
rehabilitative treatment at New Hope for three of the offenses in this case. Despite this
opportunity, Haley got drunk, got arrested, violated his furlough, and then failed to turn
himself into the authorities. The court noted that during this time, Haley checked himself
into a rehabilitation facility without court approval, missed his sentencing hearing, and was
ultimately arrested. The court also noted that Haley had “been on probation numerous times

                                               -14-
before.” Finally, the trial court declined to impose an alternative sentence, stating, “I find
absolutely no reason, absolutely no reason for probation. I find absolutely no reason for
split-confinement.”

       The record fully supports the trial court’s denial of alternative sentencing in this case.
The trial court properly relied on code sections 40-35-103(1)(A) and (C) in imposing a
sentence of confinement. Moreover, based on our reading of the record, the court did not
improperly rely on a need for deterrence in sentencing Haley to confinement. The record
shows that the court considered Haley’s proof regarding probation before determining that
a sentence of confinement was proper. Accordingly, we conclude that Haley’s effective
sentence of fourteen years in the Tennessee Department of Correction is proper. The
judgments of the trial court are affirmed.

                                       CONCLUSION

       The trial court did not err in sentencing Haley to an effective sentence of fourteen
years in confinement. Accordingly, the trial court’s judgments are affirmed.


                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                              -15-
