                                                                                       03/28/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs February 5, 2019

                STATE OF TENNESSEE v. DAVID LASSITER

                Appeal from the Circuit Court for Madison County
               Nos. 17-420-423, 17-483-485   Donald H. Allen, Judge
                      ___________________________________

                          No. W2018-01020-CCA-R3-CD
                      ___________________________________

The Defendant, David Lassiter, pled guilty to four counts of theft of property valued at
$2,500 or more and four counts of theft of property valued at more than $1,000. He
received an effective sentence of sixteen years. On appeal, the Defendant challenges the
trial court’s denial of alternative sentencing and the imposition of partial consecutive
sentences. Upon review of the record and applicable law, we affirm the trial court’s
judgments.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

George Googe, District Public Defender; and Gregory D. Gookin, Assistant District
Public Defender, for the Appellant, David Lassiter.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Jody Pickens, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

      From April 10, 2017, through June 6, 2017, the Defendant committed eight thefts
in Madison County. During this time, the Defendant took numerous trailers, lawn
equipment, and other tools. His co-defendant in three of the thefts also entered a guilty
plea.
       At the plea hearing, the State informed the trial court of the evidence that would
have been presented had the Defendant proceeded to trial. According to the State, from
April 10, 2017, to June 6, 2017, the Defendant committed eight different thefts against
six different victims. The Defendant pled guilty to theft of the following items: a zero-
turn lawn mower valued at $6,000 from Byrd Implement; three trailers, each valued over
$1,000, taken on two separate dates, from Compressors & Tools, Inc.; various pieces of
lawn equipment valued over $2,500 from Mr. Robert Pierce; a trailer valued over $1,000
from Sam’s Club; and a trailer valued over $2,500 from Bob’s Janitorial Service. As part
of the Defendant’s guilty plea, the State dismissed five counts of criminal trespass.

      At the sentencing hearing, victims of the thefts testified. Mr. Brian Byrd testified
on behalf of Byrd Implement Company that a zero-turn lawn mower, valued at $6,000,
was taken from his place of business on or about June 5, 2017. The lawn mower was
recovered and returned to Mr. Byrd.

       Mr. Timothy Jones, a business manager for Compressors & Tools, Inc., testified
that around May 17, 2017, two trailers with a combined value of $3,250 were taken, and
neither one was returned. Around June 5, 2017, another trailer, valued at over $1,000
was taken and was later returned in a damaged condition. Mr. Jones said the cost of
repairing the trailer was $250.

       Mr. Douglas Taylor, the owner of Taylor Construction & Restoration, testified that
various power tools and generators valued at $4,100 were taken and that none of the
items were returned. The State announced that one of the victims, Mr. Robert Pierce,
would not be testifying, but that he did request restitution in the amount of $2,500. The
State notified the trial court that Mr. Pierce’s statement regarding the requested restitution
could be found in the presentence report.

       Ms. Paulette Gallagher, a manager at Sam’s Club, testified that a trailer valued at
approximately $1,249 was taken from Sam’s Club on April 10, 2017, and the trailer was
not returned.

        Ms. Ida Reeves, the operations manager at Bob’s Janitorial Service, testified that a
trailer valued at $3,500 was taken on June 3, 2017, and that the trailer was later returned
with damage. She testified that the damage was in the amount of $39.

       Officer John Foren, an investigator with the Madison County Sheriff’s
Department, testified on behalf of the Defendant. Officer Foren investigated the cases
involving trailer thefts. He interviewed the Defendant, who admitted he was involved in
numerous thefts of trailers and informed him where some of the trailers and the zero-turn
lawn mower could be located.
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        Officer Jeff Herndon, an investigator with the Jackson Police Department, also
testified for the Defendant. Officer Herndon conducted a separate interview of the
Defendant, who provided the location of several of the stolen items.

       Ms. Lauren Wood, the Defendant’s daughter, testified that the Defendant has a
substance abuse problem but that prior to these thefts, she was not aware of the
seriousness of his addiction. She said she hoped the Defendant could receive
rehabilitation. Ms. Lynn Atwill, the Defendant’s mother, testified that she knew that the
Defendant has suffered from an addiction to crack cocaine for the last twenty years. She
said that the Defendant has participated in multiple thirty-day treatment programs in the
past but believed that the Defendant needed a long-term treatment program in order to
overcome his addiction.

      Mr. Steve Robinson also testified for the Defendant. He is an employee at
Warrior’s Center, a faith-based, long-term rehabilitation center for men. Warrior’s
Center offers long-term, residential treatment programs. He said the Defendant had been
accepted into this program.

       The Defendant elected to testify at the sentencing hearing. He emphasized that he
had admitted his involvement in these thefts when he pled guilty, at the sentencing
hearing, and in his initial interviews with Investigators Foren and Herndon. He
acknowledged that he has similar pending theft charges in Haywood and Weakley
Counties. The Defendant testified that he has had a crack cocaine addiction for the last
twenty years. He was sober for almost seven years after serving a previous sentence that
ended in 2010. In 2016, during a theft that occurred at a convenience store, the
Defendant met his co-defendant, Mr. Thaddeus Ray. The Defendant pled guilty to the
theft that occurred at a convenience store in January 2017 and was on supervised
probation when he committed the thefts that are the bases for the present convictions.

       The Defendant stated that he committed the thefts to “fuel a drug habit.” After
taking the trailers, he tried to sell the trailers. In his time in custody, the Defendant
graduated from the Celebrate Recovery drug treatment program and obtained a certificate
in a Bible course. He said he wanted to attend the long-term treatment at the Warrior
Center, and he read a letter apologizing to the victims.

      The trial court questioned the Defendant about his criminal history beginning in
1997 and whether he sought drug treatment at that point. The Defendant admitted that he
has had a problem with crack cocaine since 1989. The court asked the Defendant what
he had done in the last twenty years to confront his addiction. The Defendant stated that
he went to a short-term program and was involved in a nine-month treatment program
while previously incarcerated. The Defendant acknowledged that he “never took the
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support that I’m supposed to use after these programs and used it, you know, sponsors
and call people. I never did that. I think that was my downfall.”

       The trial court also questioned the Defendant about the numerous times he had
previously violated the terms of his probation and parole. The trial court found that on
ten prior occasions while the Defendant was on probation he violated the terms of his
probation. In 2008, while the Defendant was on parole he received an additional
conviction. This incident occurred after the Defendant had completed the nine-month
drug treatment program. More recently, the Defendant was on supervised probation
when he committed the current offenses.

       At the conclusion of the Defendant’s testimony, the State submitted that the
Defendant is a Range II offender based on his prior convictions, which included eight
counts of forgery, multiple theft convictions, and an identity theft conviction. The State
previously filed a notice seeking an enhanced punishment. The State asserted that the
trial court should consider the Defendant’s extensive criminal history in making its
decision regarding both the length of the individual sentences and whether to impose
consecutive sentencing.

       The Defendant agreed that he was a Range II offender. He requested that as part
of his sentence, he be required to attend a long-term inpatient drug treatment program.
He asserted that he cooperated with the investigators and that he had never displayed any
type of violent behavior in relation to his prior or current convictions.

        The trial court issued its order orally and was very meticulous in articulating its
findings regarding sentencing. The trial court considered the evidence presented during
the guilty plea and sentencing hearings and the presentence report. The court noted that it
considered the “principles of sentencing and the arguments that have been made by
counsel as to sentencing alternatives.” Additionally, it considered the nature and
characteristics of the criminal conduct involved, enhancement and mitigating factors,
statistical information provided by the Administrative Office of the Courts, and the
Defendant’s testimony.

       The trial court first determined that the Defendant was a Range II offender. The
court noted that four of the thefts were Class D felony offenses and that the range for a D
felony is four to eight years of incarceration. See T.C.A. § 40-35-111(b)(4). The other
four offenses are Class E felonies and the range for a E felony for a Range II offender is
two to four years incarceration. See T.C.A. § 40-35-111(b)(5).

       The trial court thoroughly discussed the Defendant’s criminal history in its
decision to deny alternative sentencing as well as its decision to impose partially
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consecutive sentences. Importantly, the trial court noted that prior to the Defendant’s
current convictions, he had thirteen prior felony convictions. Several of the Defendant’s
prior convictions were committed within a twenty-four-hour time period and accordingly
did not increase his offender classification. See T.C.A. § 40-35-106(b)(4). The
Defendant’s criminal history consists of over eight forgeries, multiple felony theft
convictions, and numerous misdemeanor convictions, including identity theft and
attempted forgery.

       The trial court applied four enhancement factors pursuant to Tennessee Code
Annotated section 40-35-114. First, the trial court found “the defendant has a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range.” T.C.A. § 40-35-114(1). The trial court found that in
addition to the Defendant’s history of criminal convictions he also had a history of
criminal behavior, his self-reported drug use. Second, the trial court found that the
Defendant “was a leader in the commission of an offense involving two (2) or more
criminal actors.” T.C.A. § 40-35-114(2). Third, the trial court found that the Defendant
“before trial or sentencing in this case has failed to comply with the conditions of a
sentence involving release into the community.” See T.C.A. § 40-35-114(8). Finally, the
trial court found that the Defendant committed eight felony thefts while he was
“[r]eleased on probation.” T.C.A. § 40-35-114(13)(C). The trial court gave great weight
to the Defendant’s criminal history, the fact that he committed these offenses while on
probation, and his history of failing to comply with conditions involving release into the
community. The trial court gave moderate weight to the Defendant’s role as the leader in
the thefts.

        The trial court applied the following mitigating factors pursuant to Tennessee
Code Annotated section 40-35-113. First, the court found that the Defendant’s “criminal
conduct neither caused nor threatened serious bodily injury.” T.C.A. § 40-35-113(1).
Next, the trial court found the Defendant “did assist the authorities in locating and
recovering some of the property that was taken.” The trial court gave slight weight to the
fact that the Defendant’s conduct “neither caused nor threatened serious bodily injury.”
The trial court also gave very slight weight to the Defendant’s assistance in recovering
some of the stolen property. Additionally, the trial court noted that it gave “consideration
to the fact that he has pled guilty and he has accepted responsibility for his actions in this
case.” The trial court indicated that it awarded moderate weight to the Defendant’s
participation in rehabilitative programs while incarcerated.

       The trial court spent a great deal of time discussing the Defendant’s “inability to
comply with the conditions of release into the community.” The trial court discussed
each of the ten times the Defendant had previously violated the terms of his probation,
dating back to 1996. The trial court found that the Defendant has “had multiple chances
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to be on probation. He gets out on probation and then he doesn’t report. He absconds.”
In deciding whether to impose an alternative sentence, the trial court determined that “it
appears to me that he would not abide by the terms of probation or any type of release
program.” The trial court determined that the Defendant should receive the maximum
sentence for each of his convictions within his range. The court imposed an eight-year
sentence on each of the convictions of theft of property valued at $2,500 or more and a
four-year sentence for each of the convictions of theft of property value at over $1,000.

       The trial court found that consecutive sentences were warranted based on the
Defendant’s extensive criminal history. The trial court structured the sentences into two
different groups. The sentences within each group run concurrently to each other and
consecutively to the other group. The trial court ordered the sentences for the D felony
theft committed against Byrd Implement, one of the E felonies committed against
Compressors & Tools, Inc., and the D felony committed against Bob’s Janitorial Service
run concurrently with each other but consecutively to the remaining counts. It ordered
the sentences for the D felony committed against Taylor Construction, the two E felonies
committed against Compressors & Tools, Inc., the D felony committed against Mr.
Pierce, and the D felony committed against Sam’s Club run consecutively to each to
other but concurrently to the remaining sentences. The trial court entered an effective
sentence of sixteen years.

                                       ANALYSIS

                                I. Alternative Sentencing

        The Defendant argues that the trial court erred in denying alternative sentencing.
However, he “concedes that the trial court did not err in its application of various
enhancement factors against him.” The State maintains that the trial court did not abuse
its discretion in denying the Defendant alternative sentencing.

       This court reviews a trial court’s denial of alternative sentencing under an abuse of
standard review with the presumption of reasonableness to sentences that fall within the
correct range. State v. Caudle, 388 S.W.3d 273, 278 (Tenn. 2012) (citing State v. Bise,
380 S.W.3d 682, 707 (Tenn. 2012)). In Caudle, the court stated that the abuse of
discretion standard articulated in Bise also applies to “questions related to probation or
any other alternative sentence.” Id. at 278-79. Appellate courts should affirm a sentence
“so long as it is within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles listed by statute.”
Bise, 380 S.W.3d at 709-10.

       Trial courts are required to consider the following when imposing a sentence:
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       (1) The evidence, if any, received at 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 the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;
       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee;
       (7) Any statement the defendant wishes to make on the defendant’s own
       behalf about sentencing; and
       (8) The result of the validated risk and needs assessment conducted by the
       department and contained in the presentence report.

T.C.A. § 40-35-210(b). The trial court is required to consider the Defendant’s potential
for rehabilitation or treatment in determining whether to impose an alternative sentence.
T.C.A. § 40-35-103(6). A defendant who possesses a “criminal histor[y] 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.”
T.C.A. § 40-35-102(5).

       The trial court did not abuse its discretion in declining to impose alternative
sentencing. The trial court sentenced the Defendant as a Range II offender and as such
he is not considered to be a favorable candidate for alternative sentencing. State v. Rabon
D. Gibson, No. M2011-01377-CCA-R3-CD, 2012 WL 830177, at *3 (Tenn. Crim. App.
Mar. 12, 2012) (citing T.C.A. § 40-35-102(6)). The trial court articulated specific
findings regarding each of the factors enumerated in Tennessee Code Annotated sections
40-35-210(b) and 40-35-103 in denying alternative sentencing. Importantly, the trial
court found that the Defendant has previously failed to comply with the terms of
probation and parole. The Defendant has an extensive criminal history encompassing
thirteen prior felony convictions. The record supports the trial court’s determination that
confinement is necessary based on the Defendant’s criminal history and the fact that he
committed the current offenses while on probation. In rendering its order, the trial court
devoted a significant discussion to the Defendant’s addiction problems but ultimately
decided that the Defendant had had numerous opportunities to seek long-term treatment
and declined to seek help. Further, the Defendant does not dispute the trial court’s
application of various enhancement factors. Accordingly, the Defendant has not shown
how the trial court abused its discretion when declining to impose an alternative sentence.



                                           -7-
                               II. Consecutive Sentencing

       The trial court has the sound discretion to determine whether a sentence should be
served concurrently or consecutively. State v. Pollard, 432 S.W.3d 851, 860 (Tenn.
2013). A trial court’s decision to impose consecutive sentencing is reviewed under an
abuse of discretion standard with a presumption of reasonableness. Id. A trial court
abuses its discretion when it “applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d
436, 443 (Tenn. 2010). This court will affirm a sentence “so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-
10.

        A trial court is permitted to impose consecutive sentences when it provides
reasons on the record that establish one of the seven factors enumerated in Tennessee
Code Annotated section 40-35-115(b). The trial court applied two of these factors in
imposing partially consecutive sentences. The trial court found that the Defendant “is an
offender whose record of criminal activity is extensive.” T.C.A. § 40-35-115(b)(2). The
trial court also found that the Defendant was sentenced in the current offenses while he
was on probation. T.C.A. § 40-35-115(b)(6) (“The court may order sentences run
consecutively if the court finds by a preponderance of the evidence that . . . [t]he
defendant is sentenced for an offense committed while on probation.”). It is clear from
the record that the trial court thoroughly discussed the Defendant’s prior criminal history,
including each of his prior thirteen felony convictions and the fact that the Defendant was
on probation when he committed the current felonies. We conclude that the trial court
did not err in imposing partial consecutive sentences.


                                     CONCLUSION

       Based on the foregoing analysis, we affirm the judgments of the trial court.




                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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