                                                                                       11/26/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                   Assigned on Briefs at Knoxville July 24, 2018

            STATE OF TENNESSEE v. CARL THOMAS GROSSE

                Appeal from the Criminal Court for Putnam County
               Nos. 15-CR-389, 16-CR-578    Gary McKenzie, Judge
                      ___________________________________

                          No. M2017-02202-CCA-R3-CD
                      ___________________________________


Pursuant to a plea agreement, the Appellant, Carl Thomas Grosse, pled guilty to two
counts of aggravated burglary and received consecutive sentences of eight years and three
years with the manner of service to be determined by the trial court. After a sentencing
hearing, the trial court ordered the Appellant to serve his sentences in confinement. In
this delayed appeal, the Appellant challenges the trial court’s denial of alternative
sentencing. 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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and J. ROSS DYER, JJ., joined.

Russell C. Tribble (on appeal) and Edwin Sadler (at guilty plea and sentencing),
Cookeville, Tennessee, for the Appellant, Carl Thomas Grosse.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Bret T. Gunn,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       In July 2015, the Putnam County Grand Jury returned indictment number 2015-
CR-389, which charged the Appellant with the aggravated burglary of the habitation of
Devon and Peyton Cox on January 17, 2015. Thereafter, in June 2016, the grand jury
returned indictment number 2016-CR-578, which charged the Appellant with the
aggravated burglary of the habitation of Josh Wicks on October 25, 2015. The
indictment was later amended to name Wesley Pedigo and Lauren Pedigo as additional
victims of the second burglary.

       On December 16, 2016, the Appellant pled guilty to the foregoing charges. At the
guilty plea hearing, the State provided the following factual basis for the plea to the first
aggravated burglary:

              Devon and P[e]yton Cox, who were roommates in an
              apartment, were gone from their apartment on a particular
              evening and the neighbor heard some activity next door. He
              was kind of in charge of their apartment while they were
              away, [he heard] some rustling around in a closet and he
              knew there was not supposed to be anybody there. So the
              police were called, [the Appellant] was found inside the
              house or inside the apartment, and some items had been
              moved around and disturbed from where they originally were
              supposed to have been.

       As a factual basis for the plea to the second aggravated burglary, the State said:

              [T]he residence of Mr. Josh Wicks, Wesley Pedigo, and
              Lauren Pedigo was burglarized while they were not at home.
              Various items were taken, including some guitars, musical
              equipment.

                      Mr. Wicks, nosing around town, located one of his
              guitars at the Cross Roads Music Store here in Cookeville.
              That happened to have been sold by the [Appellant]. That
              caused the police to go out to speak with [the Appellant], who
              was living in Overton County at the time. Detective Shannon
              Smith went out there. As soon as he walked in the door, he
              saw another guitar that belonged to Mr. Wicks sitting there in
              the living room. There [were] also some USB memory sticks
              that belonged to Ms. Lauren Pedigo there.

                     They talked to [the Appellant]. He admitted that he
              had committed the burglary. He indicated that some of the
              property might be at the Gun Shop Pawn Shop in Overton.
              There they did find an item that matched the description of
              one of the items stolen, but it had been sold already, so they
              weren’t able to completely confirm that.

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       The plea agreement provided that the Appellant would be sentenced to three years
as a Range I, standard offender for the first aggravated burglary and to eight years as a
Range II, multiple offender for the second aggravated burglary. The aggravated
burglaries were Class C felonies. The plea agreement further provided that the three-year
sentence would be served consecutively to the eight-year sentence for a total effective
sentence of eleven years. Finally, the plea agreement provided that the trial court would
determine the manner of service of the sentences.

       At the April 3, 2017 sentencing hearing, Charles R. Stiriz with the Tennessee
Board of Probation and Parole testified that he prepared the Appellant’s presentence
report. Stiriz stated that the Appellant had attended school through the ninth grade and
that he had obtained a general equivalency diploma (GED). Stiriz said that the only time
the Appellant was unemployed was while he was incarcerated.

        The State submitted the presentence report as an exhibit. The presentence report
reflects that the Appellant had three convictions of casual exchange, two convictions of
driving on a revoked license, and one conviction of aggravated burglary, burglary of a
building other than a habitation, possession of amphetamine, possession of drug
paraphernalia, assault, shoplifting, violating the financial responsibility law, vandalism,
and various traffic infractions. The presentence report also reflects that the Appellant
violated probation on at least eight occasions.

      The State and defense counsel agreed to stipulate that some members of the
Appellant’s church were present in court to show their support.

       The Appellant testified that he was thirty years old, married, and had four
biological children and one stepdaughter. His children ranged in age from four years old
to twelve years old.

         The Appellant acknowledged that he had an extensive criminal history, that he had
violated probation on several occasions, and that he had a problem with drugs. He
further acknowledged making bad choices to support his addiction, such as committing
the instant crimes. He wanted to seek drug treatment and change his life in order to be a
better husband and father. He maintained that he “started working on this before I came
to jail, but my addiction had . . . control over me . . .” After he was incarcerated, he “set
[his] mind” and told his wife he was ready to change. While he was in jail, he completed
three Bible-related correspondence courses and continued to take other courses. The
Appellant said that if he were granted release, he planned to attend church, do right, and
change his life. Additionally, he had been accepted by three in-house rehabilitation
programs: Teen Challenge, The Lighthouse, and Sober Living Services.


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       The Appellant said he had written a letter stating that he had not caused any
problems since he entered jail on July 13, 2016, and that he had demonstrated he was
willing and able to improve his life. The letter also asked that he be released into a
rehabilitation program or probation. Approximately twenty police officers and guards
signed the letter at the Appellant’s request.

        On cross-examination, the Appellant agreed that he had “done very poorly on
probation in the past.” He acknowledged that he was on parole when he committed the
first aggravated burglary. After his parole was revoked, he “flattened” that sentence. He
committed the second aggravated burglary while he was released on bond for the first
aggravated burglary.

       At the conclusion of the proof, the State acknowledged that the Appellant had not
used drugs while incarcerated and had taken some courses. The State argued that despite
the Appellant’s positive attitude, his lengthy history of criminal convictions and multiple
violations of probation demonstrated that he was not a good candidate for alternative
sentencing.

       Defense counsel did not disagree with the State’s factual assertions regarding the
Appellant’s past. Nevertheless, defense counsel contended that the Appellant would have
difficulty improving his life after a lengthy incarceration. Defense counsel stated that the
Appellant was not seeking full probation but would accept it if the trial court granted it.
Instead, defense counsel argued that rehabilitation programs could be successful if the
participant wanted to be rehabilitated and asked the court to order the Appellant to enter
an in-house rehabilitation program where “[h]e’ll be locked down,” followed by a term of
probation after completion of the program.

       The trial court acknowledged that the Appellant had presented himself well in
court and that he showed signs of improving his life. However, the Appellant had
committed two serious offenses which involved entering people’s homes. Additionally,
the Appellant had a long criminal history, consisting of three felony convictions and a
“multitude” of misdemeanors. The court observed that the Appellant had “violations of
probation every time” and that “probation [was] not really an option” for him in the
instant case. Accordingly, the trial court ordered the Appellant to serve his sentence in
confinement.

        The Appellant did not appeal the trial court’s ruling at that time. On July 3, 2017,
and September 8, 2017, he filed petitions for post-conviction relief in which he alleged
that his trial counsel failed to inform him of his right to appeal the trial court’s ruling
regarding the manner of service of the sentence. The post-conviction court stayed the
post-conviction proceedings and granted the Appellant this delayed appeal to challenge
the trial court’s denial of alternative sentencing.
                                           -4-
                                       II. Analysis

       This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v.
Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive
sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the
standard to alternative sentencing). In conducting its review, this court considers the
following factors: (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 enhancement and
mitigating factors; (6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the Appellant in his own behalf; and (8) the potential for rehabilitation or treatment.
See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98.
The burden is on the Appellant to demonstrate the impropriety of his sentence(s). See
Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.

       A defendant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See Tenn. Code Ann. § 40-35-303(a). The Appellant’s individual
sentences meet this requirement. Moreover, a defendant who is an especially mitigated
or standard offender convicted of a Class C, D, or E felony should be considered a
favorable candidate for alternative sentencing absent evidence to the contrary. See Tenn.
Code Ann. § 40-35-102(6). In the instant case, the Appellant was convicted of two Class
C felonies. He was sentenced as a Range I offender for the first aggravated burglary;
accordingly, he is considered to be a favorable candidate for alternative sentencing for
that offense. However, he was sentenced as a Range II offender for the second
aggravated burglary and is not considered to be a favorable candidate for alternative
sentencing for that offense.

       The following sentencing considerations, set forth in Tennessee Code Annotated
section 40-35-103(1), may constitute “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
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              (C) Measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to the
              defendant.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court
should consider a defendant’s potential or lack of potential for rehabilitation when
determining if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-
35-103(5). A defendant with a long history of criminal conduct and “evincing failure of
past efforts at rehabilitation” is presumed unsuitable for alternative sentencing. Tenn.
Code Ann. § 40-35-102(5).

       On appeal, the Appellant argues that the trial court should have considered
mitigating factors (1), that the Appellant’s criminal conduct neither caused nor threatened
serious bodily injury, and (10) that the Appellant assisted the authorities in locating or
recovering property involved in the first aggravated burglary. Tenn. Code Ann. § 40-35-
113(1) and (10). He contends that the trial court’s refusal to consider any mitigating
factors wholly departs from the sentencing act and constitutes an abuse of discretion.
The Appellant asserts that based upon his completion of correspondence courses, his
acceptance into treatment programs, and the letter of endorsement signed by law
enforcement and corrections officers, the trial court should have granted an alternative
sentence. The State responds that the trial court did not abuse its discretion by denying
alternative sentencing. We agree with the State.

       Initially, we note that the trial court stated that it did not “really [have] to
consider” the enhancement and mitigating factors because the Appellant’s sentence
range, length, and consecutive nature were part of the Appellant’s negotiated plea
agreement. However, the sentencing act provides that consideration of enhancement and
mitigating factors are relevant to determinations regarding alternative sentencing. State
v. Ring, 56 S.W.3d 577, 584 (Tenn. Crim. App. 2001); State v. Paul Avery Reno, No.
M2016-01903-CCA-R3-CD, 2017 WL 3037538, at *14 (Tenn. Crim. App. at Nashville,
July 18, 2017); State v. Phillip Serpas, No. E2015-00693-CCA-R3-CD, 2016 WL
369091, at *3 (Tenn. Crim. App. at Knoxville, Jan. 29, 2016); see Tenn. Code Ann. § 40-
35-210(b)(5).

       Although the trial court did not state specifically that it was considering
enhancement and mitigating factors, the record reflects that in determining the manner of
service of the sentences, the trial court considered all of the evidence, exhibits, and
testimony presented at the guilty plea and sentencing hearings; the presentence report; the
risks and needs assessment; the principles of sentencing; the nature and characteristics of
the Appellant’s criminal conduct; the arguments of counsel; and the Appellant’s potential
for rehabilitation. The record further reflects that the Appellant did not argue for the
                                           -6-
application of any mitigating factors at the sentencing hearing. See State v. Jennifer
Hodges, No. M2016-01057-CCA-R3-CD, 2017 WL 3085434, at *7 (Tenn. Crim. App. at
Nashville, July 20, 2017). In denying alternative sentencing, the trial court found that the
Appellant’s criminal history was extensive and that the Appellant violated probation on
numerous occasions. Tenn. Code Ann. § 40-35-103(1)(A), (C). The record amply
supports these findings. Notably, the Appellant acknowledged his extensive criminal
history and numerous probation violations during his testimony at the sentencing hearing.
The Appellant further acknowledged that he was on parole at the time he committed the
first aggravated burglary and that he was released on bond when he committed the second
aggravated burglary. We conclude that the trial court did not abuse its discretion by
denying alternative sentencing.

                                     III. Conclusion

       The judgments of the trial court are affirmed.

                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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