         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs April 22, 2009

             STATE OF TENNESSEE v. ANTHONY DREW DRAKE

                    Appeal from the Criminal Court for Marshall County
                           No. 08-CR-3    Robert Crigler, Judge



                     No. M2008-02441-CCA-R3-CD - Filed April 30, 2009


Upon his pleas of guilty, the Defendant, Anthony Drew Drake, was convicted of one count of
burglary of a building other than a habitation (a Class D felony), eight counts of burglary of an
automobile (Class E felonies) and six counts of misdemeanor theft. Sentencing was left to the
discretion of the trial court. Following a sentencing hearing, the Defendant was sentenced as a
Range II, multiple offender to terms of five years for the Class D felony and three years for each
Class E felony conviction. Three of the three-year sentences were ordered to be served concurrently
with one another and consecutively to the five-year sentence. Two of the remaining three-year
sentences were ordered to be served concurrently with one another and consecutively to the five-year
and three-year consecutive sentences, for an effective sentence of eleven years. On appeal, the
Defendant argues that the trial court erred by refusing to allow him to serve his sentences in
community corrections. We affirm the judgments of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant,
Anthony Drew Drake.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

                                   Factual Background
      We first summarize the underlying facts as presented at the guilty plea submission hearing.
During the early morning hours of October 28, 2007, the Defendant burglarized eight separate
automobiles belonging to separate victims and one building other than a habitation not open to the
public. See Tenn. Code Ann. § 39-14-402(a)(1) and (4). Numerous items were stolen during these
burglaries, including a checkbook, hedge trimmer, blankets, tools, paint sprayer and a compact-disc-
player face plate. See Tenn. Code Ann. § 39-14-103 (theft of property). The Defendant’s crime
spree ended when he was confronted at gunpoint by the owner of the building the Defendant was
caught burglarizing. The Defendant was detained at the scene until the police arrived. All of the
stolen property was recovered.

                                        Sentencing Hearing
        At the sentencing hearing, the parties stipulated that the Defendant was a Range II, multiple
offender. The presentence report reflects that at the time of sentencing, the Defendant was twenty-
one years old and a high school graduate. The Defendant reported a long history of alcohol and drug
abuse. He also reported that he was the father of one child, age three. The presentence report
reflects two prior convictions for aggravated burglary, one conviction for Class C felony theft, one
conviction for misdemeanor theft, two convictions for driving while under the influence, one
conviction for misdemeanor possession of marijuana, one conviction for misdemeanor possession
of a controlled substance, one conviction for public intoxication, and one conviction for underage
consumption of alcohol. The Defendant was on probation at the time he committed the crimes at
issue in this appeal.

        The presentence report also contained a lengthy statement from the Defendant. In this
statement, the Defendant apologized to the victims and asserted that his crimes were caused by his
addiction to drugs. He specifically requested the court to sentence him to “six years at 35% and
some drug and alcohol rehabilitation.” The Defendant expressed remorse for his crimes and stated
that he wanted to be a role model for his son by teaching him about the dangers of drugs and alcohol.
At the sentencing hearing, the Defendant also presented an allocution statement. In his allocution,
the Defendant again apologized to the victims and stated that drug addiction had taken over his life.
He asked the court for assistance with his addiction to drugs and alcohol. At his sentencing hearing,
the Defendant did not argue that he should receive an alternative sentence.

                                       Imposition of Sentence
        In considering the length of the Defendant’s sentences, the trial court noted that many of the
offenses involved more than one victim, but the court stated that it did not place great weight on that
as an enhancing factor. See Tenn. Code Ann. § 40-35-114(3). The trial court also found that the
Defendant had a previous history of criminal convictions in addition to those necessary to establish
the appropriate range. See Tenn. Code Ann. § 40-35-114(1). In addition, the trial court noted the
Defendant’s admission that, although he had not been convicted of the crimes, he had sold drugs
“hundreds” of times. See Tenn. Code Ann. § 40-35-114(1). The trial court deemed the Defendant’s
prior record “terrible.” The trial court also noted that the Defendant had previously failed to comply
with the conditions of a sentence involving release into the community. See Tenn. Code Ann. § 40-
35-114(8). As mitigating factors, the trial court noted that the Defendant’s criminal conduct neither
caused or threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1). The trial court
also noted that the Defendant had expressed some remorse for his crime, although the trial court did


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not place much weight on that factor. The trial court based its decision to impose consecutive
sentences on its finding that the Defendant committed the instant offenses while he was on
probation. See Tenn. Code Ann. § 40-35-115(b)(6).

       Immediately prior to imposing its sentence, the trial court explained its decision as follows:
               My sentence is going to exceed 10 years so he is not eligible for probation.
               I think I should address Community Corrections out of an abundance of
       caution.
               I am going to set an effective sentence of 11 years as a Range II multiple
       offender.
               In doing that I am relying on the evidence received at the sentencing hearing,
       the presentence report, principles of sentencing and arguments as to sentencing
       alternatives, the nature and characteristics of the criminal conduct; evidence of
       statutory mitigating and enhancing factors; the defendant’s allocution statement that
       he made and his lack of potential for rehabilitation which the Court finds.
               In looking at it, it appears that the defendant – less restrictive measures than
       confinement have frequently and unsuccessfully been applied to the defendant.
               Therefore alternative sentencing is not appropriate for him. He also has a
       long history of criminal conduct which in and of itself would be sufficient to deny
       Community Corrections.
               And also confinement is needed to avoid depreciating the seriousness of these
       offenses.
               As to the length of the sentence, I do find it is no greater than deserved under
       the circumstances and justly deserved in relationship to the seriousness of the
       offenses.


        At the conclusion of the sentencing hearing the trial court imposed an effective sentence of
eleven years to be served as a Range II, multiple offender in the Department of Correction. It is from
the sentencing decision of the trial court that the Defendant appeals.

                                                   Analysis
       In this appeal, the Defendant does not take issue with any finding made by the trial court, nor
does he assert that the trial court erred in its consideration of enhancement or mitigating factors. The
Defendant does argue that the appropriate sentence in this case would have been to allow the
Defendant to serve his eleven-year sentence in community corrections.

        On appeal, the party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant challenges
the length, range, or manner of service of a sentence, it is the duty of this Court to conduct a de novo
review on the record with a presumption that the determinations made by the court from which the
appeal is taken are correct. Tenn. Code Ann. § 40-35-401(d). However, this presumption “is


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conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999); see also State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the
trial court failed to consider the sentencing principles and all relevant facts and circumstances, then
review of the challenged sentence is purely de novo without the presumption of correctness. State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.

        In conducting a de novo review of a sentence, this Court 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); see also Carter, 254
S.W.3d at 343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

        Effective June 7, 2005, our legislature amended Tennessee Code Annotated section 40-35-
102(6) by deleting the statutory presumption that a defendant who is convicted of a Class C, D, or
E felony, as a mitigated or standard offender, is a favorable candidate for alternative sentencing. Our
sentencing law now provides that a defendant who does not possess a criminal history showing a
clear disregard for society’s laws and morals, who has not failed past rehabilitation efforts, 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. A court shall consider, but is not bound by, this advisory sentencing guideline.” Tenn.
Code Ann. § 40-35-102(5), (6) (emphasis added). 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.

       The following considerations provide guidance regarding what constitutes “evidence to the
contrary”:

             (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 . . . .




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Tenn. Code Ann. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. Additionally, the principles
of sentencing reflect that 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). The court should also consider the
defendant’s potential for rehabilitation or treatment in determining the appropriate sentence. Tenn.
Code Ann. § 40-35-103(5).

         The Community Corrections Act was meant to provide an alternative means of punishment
for “selected, nonviolent felony offenders . . . , thereby reserving secure confinement facilities for
violent felony offenders.” Tenn. Code Ann. § 40-36-103(1); see also State v. Samuels, 44 S.W.3d
489, 492 (Tenn. 2001). Pursuant to statute, persons who satisfy all of the following minimum
criteria are eligible for participation in a community corrections program:

                (A) Persons who, without this option, would be incarcerated in a correctional
       institution;
                (B) Persons who are convicted of property-related, or drug/alcohol-related
       felony offenses or other felony offenses not involving crimes against the person as
       provided in title 39, chapter 13, parts 1-5;
                (C) Persons who are convicted of nonviolent felony offenses;
                (D) Persons who are convicted of felony offenses in which the use or
       possession of a weapon was not involved;
                (E) Persons who do not demonstrate a present or past pattern of behavior
       indicating violence; [and]
                (F) Persons who do not demonstrate a pattern of committing violent
       offenses[.]

Tenn. Code Ann. § 40-36-106(a)(1).

       Persons who do not otherwise satisfy the minimum criteria and who would usually be
considered unfit for probation due to histories of chronic alcohol abuse, drug abuse, or mental health
problems, but whose special needs are treatable and could be served best in the community may be
considered eligible for participation in a community corrections program. Tenn. Code Ann. § 40-36-
106(c). Eligibility under this section is generally referred to as the “special needs” provision for
community corrections.

        Even though an offender meets the requirements for eligibility, he or she is not automatically
entitled to participation in a community corrections program. See State v. Ball, 973 S.W.2d 288,
294 (Tenn. Crim. App. 1998); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
Rather, the Act provides that the criteria shall be interpreted as minimum standards to guide a trial
court’s determination of whether that offender is eligible for community corrections. See Tenn.
Code Ann. § 40-36-106(d).




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         In response to the Defendant’s argument in favor of community corrections, the State first
argues that the Defendant is not eligible for community corrections under the “special needs”
provision because in order to be considered for community corrections under this provision, a
defendant must be eligible for probation. The State asserts that the Defendant is not eligible for
probation because his effective sentence is eleven years. We conclude that the State’s argument is
misplaced. Under our sentencing law, where a defendant has multiple convictions with consecutive
sentences and the total effective sentence exceeds the maximum sentence allowed for probation
eligibility, a defendant remains eligible for probation consideration if each individual sentence falls
within the probation eligibility criteria. See State v. Langston, 708 S.W.2d 830 (Tenn. 1986); see
also Tenn. Code § 40-35-303, Sentencing Comm’n Comments.

         In reviewing the trial court’s decision, we first conclude that the trial court considered
sentencing principles and relevant facts and circumstances. Thus, the judge’s decision is
presumptively correct. We also conclude that the trial court acted within its discretionary authority
in ordering the Defendant to serve his sentence in the Department of Correction rather than in
Community Corrections. First, we note that the Defendant was sentenced as a Range II, multiple
offender and that therefore, the trial court was not obligated to consider the Defendant as a favorable
candidate for alternative sentencing options. Second, we note that the Defendant does have a long
history of criminal conduct. Third, we note that the Defendant was on probation for aggravated
burglary and theft at the time he committed the crimes at issue herein. Finally, the record supports
the trial court’s finding that the Defendant has a poor potential for rehabilitation. Based upon our
review of the record, we conclude that the Defendant has not overcome the presumption that the
sentencing determination made by the trial court is correct. Accordingly, the judgments entered by
the trial court are affirmed.



                                                       ______________________________
                                                       DAVID H. WELLES, JUDGE




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