                                                                                             06/19/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 4, 2020

             STATE OF TENNESSEE v. SAMUEL O. MCALISTER

                  Appeal from the Circuit Court for Madison County
                     No. 18-501, 18-956 Donald H. Allen, Judge
                      ___________________________________

                            No. W2019-00660-CCA-R3-CD
                        ___________________________________

The Defendant, Samuel McAlister, entered a partially open guilty plea in case number
18-501 for possession of marijuana, possession of a firearm by a convicted felon, and
possession of drug paraphernalia; and in case number 18-956, for driving on a revoked
license, failing to illuminate his license plate, and violation of the financial responsibility
law. The trial court sentenced the Defendant to a total effective sentence of five years in
the Tennessee Department of Correction. On appeal, he argues that the trial court abused
its discretion by denying his request for alternative sentencing. Upon review, we affirm
the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant
Public Defender, for the Defendant-Appellant, Samuel O. McAlister.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Jody Pickens, District Attorney General; and Bradley F. Champine,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       The Defendant, Samuel McAlister, entered partially open guilty pleas in cases 18-
501 and 18-956. The uncontested facts supporting the guilty pleas were laid out by the
State at the guilty plea hearing.

       [O]n January 30th of 2018, Investigators Shoate and Tanner with Metro
       Narcotics Unit did come into contact with [] the defendant in this matter, at
      a convenience store and parking lot located at 1321 East Chester Street
      which is here in Jackson, Madison County, Tennessee. During the
      encounter, Investigator Shoate asked for identification. During the
      encounter, Investigator Shoate did notice an odor of marijuana coming
      from [the Defendant’s] person. He was detained and a search of [the
      Defendant’s] person revealed a small amount of marijuana which was sent
      to the TBI for testing and came back positive at 3.29 grams. Also during
      the search of his person, officers recovered a Taurus 380 caliber handgun
      loaded with six rounds. At the time of his arrest, [the Defendant] did have
      a prior felony conviction for possession of cocaine with intent to sell or
      deliver under Docket No. 05-493 from Madison County from back on
      November 21st of 2005. That would be the -- also during a search of his
      person, there was recovered a small marijuana grinder that had suspected
      marijuana residue on it. That would be the State’s proof under Docket No.
      18-501.

                                           ***

      [O]n or about August 19 2018, Officer Preslar, then with the Jackson
      Police Department, initiated a traffic stop on [the Defendant] in the area of
      Laconte Street here in Jackson -- Laconte and Jackson Street here in
      Jackson, Madison County, Tennessee for improper lights. During that
      traffic stop, [the Defendant] was found to be the driver. I believe his tag
      light was out. He was unable to provide proof of insurance at that time and
      upon a search of his driving history it was found that he did have prior
      convictions for driving on a suspended license. His license was suspended
      at that time and he had prior convictions from Madison County General
      Sessions Court on February 9th of 2017 and January 11th of 2017. Out of
      Jackson City Court on November 16th of 2011 and September 22nd of
      2009.

       At the March 18, 2019 sentencing hearing, the State introduced the Defendant’s
presentence report as its only exhibit. The report showed five prior felony convictions
and twenty-eight misdemeanors—eleven of which were drug related. The report showed
that the Defendant had not been employed since 2007, but the State conceded that this
was an error in the report.

       The Defendant’s fiancée, Patricia Wilson testified in favor of alternative
sentencing. She testified that the Defendant was like a father to her two adult children
and a role model to the neighborhood children. According to Ms. Wilson, the Defendant
worked close to 40 hours a week in the logging industry and as a car mechanic. She
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stated that she would be willing to drive the Defendant while his license was suspended.
On cross-examination, she testified that the Defendant only occasionally carried drugs
and weapons. Ms. Wilson felt that “[e]veryone makes mistakes time to time.” After
being questioned by the trial court, she testified that the Defendant lived with her but
frequently stayed with his mother due to her failing health.

       The Defendant’s mother also testified on his behalf. Ms. McAlister testified that
she has heart problems, diabetes, a twisted spine, and uses a walker.          She was
hospitalized less than a month ago, and the Defendant routinely helps care for her. She
asked that the trial court place the Defendant on probation because he is a good person
and because she and his children rely on his support.

       Finally, the Defendant testified on his own behalf. He testified that he had been
shot in 2017 and was carrying the handgun for self-defense. According to the Defendant,
he was a bystander who was shot in the cross-fire between strangers. The shooters sent
messages and phone calls warning him not to tell the police who the shooters were, but
the Defendant testified that he did not know their identity. He testified that he has not
had issues maintaining employment and has worked as a logger and a mechanic. On
cross-examination, he testified that on the day of his arrest he saw a strange black truck
pull in front of his house and stop. He was afraid that the shooters had come back for
him, and he armed himself with a pistol in self-defense. Later that day, he left the house
to go to the store, but he forgot that he had left the pistol in his pocket.

       The trial court reviewed the presentence report and determined that the Defendant
was not a good candidate for probation. The trial court gave great weight to the
Defendant’s five prior felony and eleven drug-related misdemeanor convictions. The
trial court also gave great weight to the Defendant’s persistent history of failing to
comply with his community corrections and probation sentences. Therefore, the trial
court found that the Defendant had an extensive criminal history and that less restrictive
measures had been frequently applied without success. The trial court sentenced the
Defendant to a total effective sentence of five years in the Tennessee Department of
Correction. The Defendant filed a timely notice of appeal on April 16, 2019.

                                       ANALYSIS

        The Defendant contends that the trial court abused its discretion in denying him
alternative sentencing, claiming that he is a good candidate for an alternative sentence.
According to the Defendant, he is, and has been, gainfully employed, takes care of his
elderly mother and his children, and only committed the weapons violation out of fear for
his life. In response, the State argues that the Defendant has failed to relate his arguments

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to the factors the trial court is required to consider when sentencing him. We agree with
the State.

       “[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
Because the record shows that the trial court carefully considered the evidence, the
enhancement and mitigating factors, and the purposes and principles of sentencing prior
to imposing a sentence of five years, the Defendant has failed “to either establish an
abuse of discretion or otherwise overcome the presumption of reasonableness afforded
sentences which reflect a proper application of the purposes and principles of our
statutory scheme.” Id. at 280.

      Any sentence that does not involve complete confinement is an alternative
sentence. See generally, State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code
Annotated section 40-35-102(5) (2006) gives courts guidance regarding the types of
defendant who should be required to serve their sentences in confinement:
      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[.]


       In addition, Tennessee Code Annotated section 40-35-102(6)(A) (2006) states that
a defendant who does not require confinement under subsection (5) 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[.]” However, a trial court “shall consider, but is not bound by,
the advisory sentencing guideline” in section 40-35-102(6)(A). Tenn. Code Ann. § 40-
35-102(6)(D) (2006). A trial court should consider the following when determining
whether there is “evidence to the contrary” indicating that an individual should not
receive alternative sentencing:

      (A) Confinement is necessary to protect society by restraining a defendant
      who has a long history of criminal conduct;




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       (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[.]

Id. § 40-35-103(1)(A)-(C) (2006); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. See Tenn. Code Ann. § 40-35-303(a) (2006). The trial
court shall automatically consider probation as a sentencing alternative for eligible
defendants; however, the defendant bears the burden of proving his or her suitability for
probation. Tenn. Code Ann. § 40-35-303(b) (2006). In addition, “the defendant is not
automatically entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b)
(2006), Sentencing Comm’n Comments. Rather, the defendant must demonstrate that
probation would “‘subserve the ends of justice and the best interest of both the public and
the defendant.’” State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v.
Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)).

       When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s
background and social history, the defendant’s present condition, including physical and
mental condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). In addition, the
principles of sentencing require the sentence to be “no greater than that deserved for the
offense committed” and “the least severe measure necessary to achieve the purposes for
which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4) (2006). In
addition, “[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[,]” and “[t]he length of a term of probation may reflect the length of a
treatment or rehabilitation program in which participation is a condition of the
sentence[.]” Id. § 40-35-103(5).

      In this case, the trial court made the required findings on the record when denying
the Defendant an alternative sentence. The trial court reviewed the presentence report
and determined that the Defendant was not a good candidate for an alternative sentence.
The Defendant had five felony convictions and eleven misdemeanor drug convictions.
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The presentence report also showed that the Defendant has continued to commit new
crimes while on probation, as recently as 2017. The trial court concluded that the
Defendant had an extensive criminal history and that less restrictive measures had been
applied frequently without effect in the past. Because the record shows that the trial court
carefully considered the evidence, the enhancement and mitigating factors, and the
purposes and principles of sentencing prior to imposing a sentence of confinement, we
affirm the trial court’s denial of an alternative sentence.

                                     CONCLUSION

       Based on the analysis above, the judgment of the trial court is affirmed.




                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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