         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 7, 2005

               STATE OF TENNESSEE v. CORTEZ D. HUBBARD

                      Appeal from the Criminal Court for Shelby County
                         No. 03-07368    Arthur T. Bennett, Judge



                   No. W2004-01937-CCA-R3-CD - Filed August 26, 2005


The Appellant, Cortez D. Hubbard, appeals the sentencing decision of the Shelby County Criminal
Court which resulted in the imposition of an effective eight-year sentence of incarceration. On
appeal, Hubbard challenges the trial court’s denial of alternative sentencing. After review of the
record, we affirm the judgment of the trial court.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS
T. WOODALL, JJ., joined.

Robert Wilson Jones, Chief Public Defender; and Phyllis Aluko, Assistant Public Defender,
Memphis, Tennessee, for the Appellant, Cortez D. Hubbard.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

       In October 2003, a Shelby County grand jury returned an indictment against the Appellant
charging him with one count of especially aggravated burglary, one count of aggravated assault, and
two counts of misdemeanor assault. The indictment resulted from offenses which occurred in April
of 2003.

        On June 2, 2004, the Appellant entered guilty pleas to especially aggravated burglary,
aggravated assault, and one count of misdemeanor assault. The remaining count of misdemeanor
assault was dismissed. The terms of the plea agreement provided that the Appellant would plead
guilty as a Range I offender to especially aggravated burglary, a Class B felony; aggravated assault,
a Class C felony; and misdemeanor assault and receive sentences of eight years, three years, and
eleven months and twenty-nine days respectively for these convictions. As part of the agreement,
the sentences were to be served concurrently, but the manner of service of the sentences was to be
determined by the trial court. At the guilty plea hearing, the State summarized the facts underlying
the convictions as follows:

               [O]n or about April the 1st of 2003, around 11:15 p.m., the defendant and
       codefendants broke into an apartment located at 2342 Dwight, apartment number 2.
       They broke into this apartment through the back door. . . . Then Corry Jones, Cortez
       Hubbard and Marcia Hubbard entered the apartment and attacked LaQuinton and
       Reginald Taylor. LaQuinton advised officers that he and Reginald ran to a back
       bedroom. The victim Reginald Taylor, the victim of the . . . aggravated assault, . .
       . went out a window while being chased by the three defendants. And when he went
       out the window, he sustained a compound fracture where the bone of his leg was
       jutting out through the skin. He went out the window with that being the second
       floor window. The other victim, LaQuinton, actually jumped out the second floor
       window and ran and got help.

While Reginald Taylor was lying on the ground with a broken leg, he was repeatedly kicked by the
Appellant.

       Following a sentencing hearing, the trial court denied the Appellant’s request for alternative
sentencing. This appeal follows.

                                              Analysis

        When an accused challenges the length, range, or manner of the service of a sentence, this
court has a duty to conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The court must consider the evidence received at the
trial and sentencing hearing, the pre-sentence report, the principles of sentencing, argument of
counsel, the nature and characteristics of the offense, mitigating and enhancing factors, statements
made by the offender, and the potential for rehabilitation. Ashby, 823 S.W.2d at 168; see also Tenn.
Code Ann. § 40-35-210 (2003). The burden of showing that the sentence is improper is upon the
appealing party. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments.

         The Appellant argues that we should not extend the trial court a presumption of correctness
in our de novo review. He contends that the trial judge did not consider the sentencing principles
in conjunction with all relevant facts and circumstances by “nominally acknowledg[ing] evidence
of [his] mental illness” and not considering his mother’s testimony. See Ashby, 823 S.W.2d at 169.
The State contends that the trial court’s denial of the Appellant’s request for alternative sentencing
was warranted based upon the Appellant’s lengthy criminal history, the need to avoid depreciating



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the seriousness of his offenses, and unsuccessful application of measures less restrictive than
confinement in the past.

        The Appellant in this case pled guilty to Class B and Class C felonies, as a Range I offender,
and to a Class A misdemeanor. Based upon his Class B felony conviction, he receives no
presumption in favor of alternative sentencing. See Tenn. Code Ann. § 40-35-102(5) (2003).
Therefore, the State did not have the burden of justifying incarceration according to statutory
provisions. State v. Sheila Ann Jones, No. M2003-02776-CCA-R3-CD (Tenn. Crim. App. at
Knoxville, Dec. 9, 2004) (citing State v. Michael W. Dinkins, No. E2001-01711-CCA-R3-CD (Tenn.
Crim. App. at Knoxville, Apr. 26, 2002)). Given this fact, along with the fact that the trial court
specifically explained its reasoning behind its denial of alternative sentencing, the trial court’s
sentencing determination is afforded the presumption of correctness.

         The proof at the sentencing hearing established that the Appellant was twenty-five years old
and lived with his mother. He dropped out of school in the eleventh grade. The Appellant’s mother
testified that her son was very immature for his age and expressed concern about his “mental
stability.” She related that he had been prescribed medication for his problems in the past but was
not taking his medicine on the date of the crimes. She acknowledged that on the date the crimes
were committed, the Appellant was “drinking” and that he does not make good decisions when
drinking. A forensic mental evaluation of the Appellant confirmed that the Appellant suffered from
a mental disorder that required medication although the evaluation opined that the Appellant
understood the nature of the legal process, the charges against him, and the potential consequences
of the charges. The evaluation concluded that no mental defenses were supported and that the
Appellant was “competent to proceed with the disposition of his charges.”

        The pre-sentence report reflects only one brief period of employment during the Appellant’s
entire adulthood when he was employed as a cook for a one-month period at Church’s Fried
Chicken. The report also shows a pattern of criminal activity that began at age eighteen and
continued to the present charges. The Appellant’s criminal history reflects twenty-three prior
convictions, including one felony conviction for aggravated assault and thirteen convictions for
simple assault, in addition to numerous other misdemeanor convictions. Additionally, the pre-
sentence report indicates that the Appellant had twice been found to be in violation of probation.

         Our review of the record reveals that the trial court found that the Appellant’s conduct was
“egregious,” that the Appellant had an extensive history of assault convictions, some of which
occurred while he was incarcerated, and that he posed a “danger to the community.” From these
comments we discern the holding that “[c]onfinement is necessary to protect society by restraining
a defendant who has a long history of criminal conduct.” See Tenn. Code Ann. § 40-35-103(1)(A)
(2003). Moreover, the Appellant’s prior probation violations demonstrate that “[m]easures less
restrictive than confinement have . . . been applied unsuccessfully to the defendant.” See Tenn. Code
Ann. § 40-35-103(1)(C). Finally, because the Appellant was convicted of a Class B felony, it is his
burden to establish that his sentence of eight years in confinement is improper. After de novo
review, we conclude that the Appellant has failed to carry this burden.


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                                       CONCLUSION

        Based upon the foregoing, we affirm the Shelby County Criminal Court’s imposition of an
effective eight-year sentence of incarceration.


                                                    ___________________________________
                                                    DAVID G. HAYES, JUDGE




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