                                                                                        07/12/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs February 26, 2019

            STATE OF TENNESSEE v. DAVID KEITH WALKER

               Appeal from the Criminal Court for Hamilton County
         Nos. 297341, 297464, 298582, and 298584 Tom Greenholtz, Judge



                            No. E2018-00795-CCA-R3-CD



The Defendant, David Keith Walker, pled guilty to aggravated burglary, theft of property
valued at $500 or less, burglary, vandalism, and two counts of theft of property valued at
$1,000 or more. The trial court imposed a total effective sentence of fifteen years’
incarceration. On appeal, the Defendant contends that he is a suitable candidate for
alternative sentencing pursuant to the statutory considerations outlined in Tennessee
Code Annotated section 40-35-103. Following our review, we affirm the trial court’s
denial of alternative sentencing.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE, and JAMES CURWOOD WITT, JR., JJ., joined.

Michael L. Acuff, Chattanooga, Tennessee, for the Appellant, David Keith Walker.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zetner,
Assistant Attorney General; M. Neal Pinkston, District Attorney General; and
AnCharlene Davis, Assistant District Attorney General, for the appellee, State of
Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       The Defendant in this case was indicted on multiple offenses stemming from
break-ins and thefts of several under-construction homes in Hamilton County. On
January 27, 2016, the Defendant was indicted on one count each of aggravated burglary,
theft of property valued at more than $500, burglary, vandalism valued at $500 or less,
and two counts of theft of property valued at $1,000 or more. See Tenn. Code Ann. §§
39-14-105, -14-402, -14-403, -14-408. On October 10, 2017, the Defendant pled guilty
on all charges. By agreement, the Defendant received concurrent sentences for his
aggravated burglary and burglary convictions, concurrent sentences for his theft of
property valued at $1,000 or more convictions, and concurrent eleven-month and twenty-
nine-day sentences for his vandalism and theft of property valued at $500 or less
convictions. The Defendant’s ten-year and five-year sentences were to run consecutively
for an effective fifteen-year sentence. The Defendant’s misdemeanor sentences were to
run concurrently. The trial court was to determine the Defendant’s manner of service.

        The sentencing hearing to determine the Defendant’s manner of service proceeded
as follows. At the beginning of the hearing, the trial court acknowledged the presentence
report and the amended presentence report. Prior to the beginning of testimony, the
prosecutor referred to the Defendant’s plea agreement. As stipulated in the agreement,
the Defendant pled guilty on the aforementioned charges with an effective sentence of
fifteen years.

        At the sentencing hearing, the Defendant testified that upon his March 30, 2015
release from custody on parole, he had contacted multiple halfway homes but was
unsuccessful finding a placement. In the alternative, the Defendant planned to live with
his brother, stating that he wanted to “find a place to stay until [he] could save some
money to be able to get [his] own place.” The Defendant was unable to reach his brother
via telephone. The Defendant contacted the co-defendant in this case, Harry Gilley, and
asked him to pick him up from jail. The two men used drugs on the day of Defendant’s
release from custody. The Defendant was arrested on October 13, 2015 for the charges in
this case.

       While on parole from March 2015 to October 2015, the Defendant worked odd
jobs in construction and landscaping. During this time, the Defendant lived sporadically
with co-defendant Gilley, a short time with his brother, and with a companion, Brenda
Porter. The Defendant admitted that he had not been cooperative with law enforcement
when approached in October 2015. The Defendant agreed that he had spent more than
half of his adult life in custody, including convictions for twelve felonies and seventeen
misdemeanors.

       As of the sentencing hearing, the Defendant testified that he had been in custody
for two and a half years since his October 2015 arrest. During this time, the Defendant
explained he had been active in the jail workforce, doing laundry and transporting
supplies. The Defendant received several letters of support from various officers at the
Hamilton County jail. The Defendant also described in detail his involvement with
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various study programs, including the Rock of Ages prison ministry study, Hope Bible
Study, the House of Refuge program, and “Mayas” Walk. The Defendant stated he had
obtained brochures and financial aid information about an HVAC technician degree from
Chattanooga State Community College and planned to pursue this degree if he were
released from custody.

       On cross-examination, the Defendant agreed that he was nineteen years old when
he committed his first offense. He also agreed that his criminal history was “pretty bad”
and that he had been on parole when he committed the offenses listed above. The
Defendant confirmed that at the time he was released on parole, he had been in custody
for three years and had previously served a ten-year sentence. The Defendant also
confirmed that he had already been on probation and had been arrested with co-defendant
Gilley on two previous occasions. The Defendant agreed that the night of his October
2015 arrest with co-defendant Gilley, he was not truthful with law enforcement officers
about breaking and entering into a home to steal a stove. He testified that he and co-
defendant Gilley would “just get together and do drugs sometimes.” The Defendant
confirmed that the two had entered four different homes and left with stolen property
while together. The Defendant also testified that he had previously violated his probation
“probably around five” times.

       At the sentencing hearing, the State called Nerren Pratt to give testimony. Mr.
Pratt is a co-owner of Pratt Homeowners, a business that builds residential homes in
Hamilton County. Mr. Pratt testified that in 2015, some fifty homes had been broken
into. Most of these break-ins were near the end of construction. Usually, a crow bar was
used to break in the back door, the home was left dirty and damaged, and appliances were
taken from the premises. Mr. Pratt stated that his company felt “like we lost a lot of sales
because of people were [sic] concerned about the security” of the neighborhoods where
break-ins were occurring. Mr. Pratt testified that since the Defendant and Gilley “were
captured, we’ve had zero break-ins and zero thefts.”

       Additionally, the State called Hannah Rooker, a probation and parole officer who
works as a presentence investigator. Ms. Rooker testified that according to the
Defendant’s presentence report, his first conviction was in 1988, at the age of nineteen,
for unlawful drug paraphernalia use and his most recent conviction was in 2013, at the
age of forty-four, for theft of property. Ms. Rooker stated that the Defendant had been
convicted of twelve felonies and seventeen misdemeanors.

      At the sentencing hearing, David McNabb, the executive director of the Teen
Challenge Midsouth Adult Center in Chattanooga, testified that the Defendant had
previously completed an eighteen-month program. When questioned about the
Defendant’s becoming a counselor for the program, Mr. McNabb testified that he was not
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in a position to confirm if the Defendant was placed in a counselor position. Mr.
McNabb was able to confirm that usually only participants who do very well in the
Challenge are given the opportunity to become a counselor.

        The Defendant called Jonathan Johnson to testify as the court liaison for the House
of Refuge. He described the House of Refuge as providing a place for participants to
live, aid in finding jobs, and aid in organizing finances. Mr. Johnson stated that he knew
of the Defendant because the Defendant had contacted him via phone. Mr. Johnson had
visited the Defendant at the Hamilton County jail to have him fill out an application for
the program. Mr. Johnson confirmed that the Defendant had been accepted into the
program, were he to be released.

        In rebuttal, the State called Detective Brian Ashburn who was assigned to the
property crimes division at the time of the Defendant’s arrest. Detective Ashburn was
involved with surveillance of the Defendant in October 2015. Detective Ashburn
testified that after spotting “what looked like to be an appliance in the back of the Jeep
Cherokee,” the Defendant and Mr. Gilley were stopped and placed into custody.
Detective Ashburn interviewed the Defendant in an attempt to recover some of the stolen
items. Detective Ashburn confirmed that the stove appliance in the back of the Jeep
Cherokee had been illegally removed from a residence built by Mr. Pratt’s company.

       The trial court found that the Defendant was not a favorable candidate for
alternative sentencing. The trial court noted the Defendant’s long criminal history,
history of substance abuse, and participation in multiple revocation proceedings while the
Defendant was on parole. The court also found that the Defendant’s failure to cooperate
with law enforcement indicated an indifference towards the victims in this case.

       Following the arguments of counsel, the trial court imposed a sentence of fifteen
years’ incarceration. The Defendant filed a late notice of appeal, and this court waived
the timely filing. The case is now before us for review.

                                       ANALYSIS

       On appeal, the Defendant contends that the trial court abused its discretion by its
complete denial of any alternative sentence. The Defendant argues that “the court had
available options to order further additional time without ordering the entirety of the
fifteen years in confinement,” pursuant to the statutory criteria of Tennessee Code
Annotated section 40-35-103. The Defendant offers several arguments in support of his
position. First, the Defendant notes that he “had already been incarcerated approximately
nine hundred (900) days. . . at the time of sentencing.” Secondly, Defendant offers that he
“took responsibility for and felt remorse for his conduct,” and he wants “the opportunity
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to pay restitution.” The Defendant further maintains that while he was in custody, he
“attempted to change the mental framework that allowed him to commit his offenses”
and planned “to have transition services” available if released. As evidence, the
Defendant offers that he had “been gainfully employed when previously released.” The
Defendant submits that he has “exhibited exemplary conduct while in custody” and that
many of “his actions were influenced by his involvement with drugs.”           The State
responds that the trial court properly exercised its discretion when it ordered the
Defendant to serve his fifteen-year sentence in confinement based on his criminal history,
the need to avoid depreciating the seriousness of the offenses, and the previous failed
attempts at using less restrictive measures. We agree with the State.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it
must consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to sentencing
alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
evidence and information offered by the parties on the enhancement and mitigating
factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to
Tennessee sentencing practices for similar offenses; and (g) any statement the defendant
wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-
35-210(b). When an accused challenges the length and manner of service of a sentence,
this court reviews the trial court’s in-range sentencing determination under an abuse of
discretion standard accompanied by a presumption of reasonableness. State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). This standard of review also applies to “the questions
related to probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012).

       This court will uphold the trial court’s sentencing decision “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. Moreover, under such circumstances, appellate courts may not disturb the sentence
even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346
(Tenn. 2008). The burden of showing that a sentence is improper is upon the appealing
party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v.
Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

      No longer is any defendant entitled to a presumption that he or she is a favorable
candidate for alternative sentencing. Carter, 254 S.W.3d at 347. Tennessee Code
Annotated section 40-35-102(6) is now only advisory. See Tenn. Code Ann. § 40-35-
102(6)(D). In addition, a Range III, persistent offender is not considered a favorable

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candidate for alternative sentencing options. See Tenn. Code Ann. § 40-35-102(6)(A);
see also Carter, 254 S.W.3d at 347.

       A trial court should consider the following when determining any defendant’s
suitability for alternative sentencing:

       (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[.]

Tenn. Code Ann. § 40-35-103(1). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938
S.W.2d 435, 438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial
court should impose a sentence that is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

       In this case, the trial court found that the Defendant could not be considered a
favorable candidate for alternative sentencing, stating “it’s uncontested, [the Defendant
has a] criminal histor[y] that evince[s] a clear disregard for the laws and morals of
society; and …[the Defendant is] being sentenced today as a Range 3 offender.” The trial
court continued and identified the specific factors it considered in its decision to sentence
the Defendant to fifteen-years’ confinement. The trial court found that the Defendant had
“a long history of substance use” and that it was “a mystery to the [c]ourt why [the
Defendant] would not seek further treatment in the intervening time” when referring to
the Defendant’s long history of drug use. The trial court found that the Defendant had
been a party to revocation proceedings “maybe around five times” and that the offenses
in this case were committed while the Defendant was on parole. The trial court noted
that the Defendant did not cooperate with law enforcement to recover the victim’s
property in this case and that this “behavior [was] a callous indifference toward the
victims in the case, and would weigh against finding of an alternative sentence.” The
trial court found that the Defendant had twelve felony convictions and seventeen
misdemeanor convictions, including “eleven of those [were] for theft, aggravated
burglary or attempted burglary.” The Defendant had been released on parole and his
“criminal conduct resumed by way of continued drug use that very day.”

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        Upon review, we conclude that the trial court had more than substantial evidence
to order the Defendant to serve his fifteen-year sentence in confinement. After being
released on parole, the Defendant admitted to taking drugs and engaging in criminal
activity that very same day. The Defendant admitted to entering homes in Hamilton
County on four different occasions to take property. The Defendant refused to cooperate
with law enforcement after being arrested. Given these facts, confinement is necessary to
avoid depreciating the seriousness of the offense, to protect society, because of the
Defendant’s long criminal history, and is needed to provide for an effective deterrent to
others who would commit similar offenses. The trial court properly considered the
sentencing principles in its alternative sentencing decision. Accordingly, the Defendant
has failed to establish an abuse of discretion or otherwise overcome the presumption of
reasonableness.

                                   CONCLUSION
      Based upon the foregoing, the judgments of the trial court are affirmed.


                                                 ______________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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