        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE


                 STATE OF TENNESSEE v. DANNY J. C. KING

                 Appeal from the Circuit Court for Marshall County
                      No. 13-CR-140      Judge Forest Durard


               No. M2014-00562-CCA-R3-CD - Filed November 7, 2014


This matter is before the Court upon the State’s motion to affirm the judgments of the trial
court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals.
Appellant, Danny J. C. King, has appealed the Marshall County Circuit Court order denying
Appellant’s request for alternative sentencing. Upon a review of the record in this case, we
are persuaded that the trial court did not err in denying alternative sentencing. The State’s
request meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal
Appeals. Accordingly, the State’s motion is granted, and the judgments of the trial court are
affirmed.

       Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court
       Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the court, in which T HOMAS T.
W OODALL, P.J. and T IMOTHY L. E ASTER, J. joined.

Robert E. Cooper, Jr., Attorney General & Reporter, and Sophia S. Lee, Senior Counsel;
Robert Carter, District Attorney General; Weakley E. Barnard, Assistant District Attorney
General, for the appellee, State of Tennessee.

Donna Orr Hargrove, District Public Defender; Michael J. Collins, Assistant District Public
Defender, Shelbyville, Tennessee, for the appellant.

                              MEMORANDUM OPINION

       Appellant pleaded guilty to two counts of Prescription Fraud. Pursuant to the plea
agreement, Appellant was sentenced to three years on each count, with the sentences ordered
to be served concurrently with each other, but consecutively to any other unexpired
sentences. The plea agreement allowed Appellant to apply for alternative sentencing.
        The factual basis for the plea established that Appellant on two separate occasions on
October 15, 2013, went to H&S Pharmacy in Lewisburg and presented prescriptions
purportedly written by a nurse practitioner from Bear Creek Medical Center (Bear Creek) in
Columbia. The first prescription was for 120 Lortab. When Appellant presented a second
prescription for 60 Adderall, the pharmacist became suspicious and contacted the nurse
practitioner who, at the time, worked in Marshall County. The pharmacist discovered that
Bear Creek had been closed since March 2013, that the nurse practitioner did not write the
prescriptions, and that a prescription pad had been stolen from Bear Creek. The pharmacist
contacted the Marshall County Drug Task Force, who advised the pharmacist to tell
Appellant that the prescription would be ready for pick up later. When Appellant and two
females returned to pick up the prescription, he was arrested. He told the officers he found
the prescription pad on the side of the road. When pressed, Appellant refused to say who
gave him the pad or who wrote out the prescriptions. Appellant told the officers that the 120
Lortabs purchased earlier in the day “were all gone.” He told the officers he gave them
away. The officers were given permission to search the vehicle by the owner. They found
a total of 68 Lortab, 21 in one ZipLoc bag, 17 in another ZipLoc bag, and 30 in a cellophane
wrapper.

       The sentencing hearing was held on March 5, 2014. The Presentence Investigation
Report (Exhibit 1) noted that Appellant had seven prior misdemeanor convictions and three
probation revocations.

       Appellant testified at the sentencing hearing that he had a drug and alcohol problem.
He stated he has been diagnosed as bi-polar, ADHD and ADD. He also claimed he suffers
from post-traumatic stress disorder. Appellant stated that if granted an alternative sentence,
he would seek treatment in a rehabilitation facility. He said the Marshall County Jail did not
offer treatment for addiction. He acknowledged that he had not sought rehabilitation
previously and that he had not been involved in Narcotics Anonymous or Alcoholics
Anonymous, even though both programs were offered at the jail. On cross-examination,
Appellant refused to name the person who gave him the prescription pad or name the person
who wrote the prescriptions.

       In denying alternative sentencing, the trial court gave great weight to Appellant’s
extensive misdemeanor record and numerous violations of probation.

                                        ANALYSIS

       Tennessee Code Annotated section 40-35-102 sets forth the purpose and intent of the
Tennessee Criminal Sentencing Reform Act of 1989. Appellant pleaded to two Class D
felonies and was sentenced as a Range I, Standard Offender. Therefore, under subsection

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102(6)(A), Appellant “should be considered as a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary.” Tennessee Code Annotated
section 40-35-103(1) sets out the considerations for sentences involving confinement.
Listed considerations include protecting “society by restraining a defendant who has
a long history of criminal conduct” and denying alternative sentencing when
“[m]easures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant ... .” Tenn. Code Ann. § 40-35-103(1)(A) & (C). The
trial court placed great weight on these two considerations.

      In explaining the appropriate appellate review of sentencing by the trial court, our
Supreme Court stated:

       If our review “reflects that the trial court followed the statutory sentencing
       procedure, imposed a lawful sentence after having given due consideration and
       proper weight to the factors and principles set out under the sentencing law,
       and that the trial court’s findings are adequately supported by the record, then
       we may not modify the sentence even if we would have preferred a different
       result.” State v. Pike, 978 S.W.2d 904, 926-27 (Tenn.1998); State v. Fletcher,
       805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

State v. Hooper, 29 S.W.3d 1, 4-5 (Tenn. 2000). Moreover, our Supreme Court has
concluded that the abuse of discretion with a presumption of reasonableness standard in State
v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012), applies to “questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

       We find the trial court followed the statutory sentencing procedure and properly
weighed the factors and principles in denying alternative sentencing. The trial court did not
abuse its discretion.

                                      CONCLUSION

       Rule 20, Rules of the Court of Criminal Appeals provides inter alia:

       The Court, with the concurrence of all judges participating in the case, when
       an opinion would have no precedential value, may affirm the judgment or
       action of the trial court by memorandum opinion rather than by formal opinion,
       when:




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       (1)(a)The judgment is rendered or the action taken in a proceeding before the
       trial judge without a jury, and such judgment or action is not a determination
       of guilt, and the evidence does not preponderate against the finding of the trial
       judge, ...
       and
       (2) No error of law requiring a reversal of the judgment or action is apparent
       on the record... .

       We determine that this case meets the criteria of the above-quoted rule and, therefore,
grant the State’s motion filed under Rule 20. We affirm the judgments of the trial court in
denying alternative sentencing.

                                           _________________________________
                                           ROBERT L. HOLLOWAY, JR., JUDGE




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