        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 29, 2012

           STATE OF TENNESSEE v. CHARLES MIDDLEBROOK

                     Appeal from the Criminal Court for Knox County
                    No. 92833A, 92999A Jon Kerry Blackwood, Judge



                    No. E2011-01034-CCA-R3-CD - Filed July 12, 2012


Appellant, Charles Middlebrook, was indicted in two separate cases for one count of theft
of property over $1,000, one count of theft of property over $500, and three counts of assault.
After negotiation with the State, Appellant pled guilty to one count of theft of property over
$1,000 and one count of simple assault. The remaining counts were dismissed. Appellant
was sentenced to eight years as a Range III, persistent offender for the conviction for theft
of property and eleven months and twenty-nine days for the conviction for assault. After a
sentencing hearing, the trial court denied alternative sentencing. Appellant appeals, arguing
that the trial court improperly denied an alternative sentence. Because the record supports
the trial court’s finding that Appellant had a lengthy prior record and repeated unwillingness
to comply with a sentence involving release in the community, we affirm the trial court’s
denial of an alternative sentence.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OGER A. P AGE, JJ., joined.

Thomas F. diLustro, Knoxville, Tennessee, for the appellant, Charles Middlebrook.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Jason Hunnicutt,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       Appellant was indicted by the Knox County Grand Jury in two separate indictments
for one count of theft of property valued at over $1,000, one count of property valued at over
$500, and three counts of assault, each alleging a different theory. Appellant pled guilty to
one count of theft of property over $1,000 and one count of simple assault.

        At the guilty plea hearing, the facts which gave rise to the indictments were relayed
to the trial court by the State as follows:

       [Appellant and a codefendant] came into [Zip’s] market on March 26, 2009,
       and they were both captured on surveillance video taking cartons of cigarettes,
       sticking them down their pants, and then leaving the store. . . . [T]hey did this
       on two separate occasions that day.

              ....

       [Appellant and the same codefendant] came into Walgreen’s on - - here in
       Knoxville, Knox County, Tennessee on the 19th of March, 2009. they grabbed
       property from the Walgreen’s and tried to leave the facilities without paying
       for it. The clerk would testify - - Mr. Piselli would testify that he and
       [Appellant] got in a skirmish during this occurrence, and he would testify that
       in the skirmish [Appellant] did injure him.

The trial court accepted the plea agreement as proposed and sentenced Appellant to eight
years as a Range III, persistent offender for the conviction for theft of property. Appellant
was sentenced to eleven months and twenty-nine days for the assault conviction. The trial
court ordered the sentences to run concurrently, for a total effective sentence of eight years.

        At the sentencing hearing, counsel for Appellant admitted that his client had an
“extensive” criminal history but noted that Appellant had, since the guilty plea hearing,
undergone the drug treatment program in the jail and had maintained himself without any
incident since that point. Counsel for the State pointed out that Appellant had not only a
“terrible record” but also a record of disciplinary issues while in the State prison system, as
well as an inability to work. The trial court “stopped counting at 12 felonies” and noted that
Appellant had a history of parole violations. As a result, the trial court determined that



                                              -2-
Appellant was not entitled to probation and required Appellant to serve the sentence in
incarceration.

       Appellant filed a timely notice of appeal, challenging the trial court’s denial of
alternative sentencing.

                                            Analysis

       Appellant complains that the trial court denied alternative sentencing, when he had
an “impressive recovery from drug addiction and [was] living an exemplary life after his
release from custody.” The State argues that the trial court properly denied alternative
sentencing.

      With regard to alternative sentencing, Tennessee Code Annotated section
40-35-102(5) provides as follows:


       In recognition that state prison capacities and the funds to build and maintain
       them are limited, convicted felons committing the most severe offenses,
       possessing criminal histories evincing a clear disregard for the laws and morals
       of society, and evincing failure of past efforts at rehabilitation shall be given
       first priority regarding sentencing involving incarceration . . . .

       A defendant who does not fall within this class of offenders:

       [A]nd who is an especially mitigated offender 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.


T.C.A. § 40-35-102(6); see also State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008). For
offenses committed on or after June 7, 2005, a defendant is eligible for probation if the
sentence actually imposed is ten years or less. See T.C.A. § 40-35-303(a).

       All offenders who meet the criteria for alternative sentencing are not entitled to relief;
instead, sentencing issues must be determined by the facts and circumstances of each case.
See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727
S.W.2d 229, 235 (Tenn. 1986)). Even if a defendant is a favorable candidate for alternative

                                               -3-
sentencing under Tennessee Code Annotated section 40-35-102(6), a trial court may deny
an alternative sentence because:


       (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 . . . .


T.C.A. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the trial
court should also consider Tennessee Code Annotated section 40-35-103(5), which states,
in pertinent part, “[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); see also State v. Dowdy, 894 S.W.2d 301, 305
(Tenn. Crim. App. 1994). The trial court may consider a defendant’s untruthfulness and lack
of candor as they relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d
282, 289 (Tenn. Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn.
1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson,
919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

        In the case herein, the trial court made the following statements with regard to
Appellant’s sentence: “based upon [Appellant’s] prior record and his unwillingness to
comply with the sentence involving release in the community, his record of not only felonies
but also misdemeanor and misdemeanor probations, that he is not amenable to
rehabilitation.” We conclude that the evidence presented supports the decision of the trial
court, and the trial court did not abuse its discretion in ordering Appellant to serve the
sentence in confinement. The evidence at the sentencing hearing included the presentence
report that showed Appellant had a lengthy criminal history spanning over three decades and
ten pages in the presentence report and including over forty-five prior convictions including
fourteen felonies. Appellant also had at least seven instances of revocation of probation,
reportedly poor mental health and plans to apply for disability so he “can sit on the porch all
the time . . . [and not] have to do anything but be good.” From the record, it appears that the
trial court based its decision on all three subsections of Tennessee Code Annotated section

                                                -4-
40-35-103(1). We find no evidence to support the reversal of the trial court’s denial of an
alternative sentence, but ample evidence to support the denial. Therefore, this issue is
without merit.

                                        Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




                                            -5-
